Warrantless arrest & search A police primer By Sen.

MIRIAM DEFENSOR SANTIAGO (Speech at the Philippine National Police Headquarters, Camp Crame, on March 13, 2006.) NDER the Constitution, the general rule is that an arrest or search can be made, only if it is authorized by a warrant issued by a judge. However, there are cer tain exceptions when a warrantless arrest and a warrantless search could be cond ucted by the police. Warrantless arrest Under the Rules of Court, Rule 113, Section 5, a warrantless arrest, also known as "citizen s arrest," is lawful under three circumstances: 1. When, in the presence of the policeman, the person to be arrested has committ ed, is actually committing, or is attempting to commit an offense. This is the " in flagrante delicto" rule. 2. When an offense has just been committed, and he has probable cause to believe , based on personal knowledge of facts or circumstances, that the person to be a rrested has committed it. This is the "hot pursuit" arrest rule. 3. When the person to be arrested is a prisoner who has escaped from a penal est ablishment. This rule allowing warrantless arrest is strictly construed. If the warrantless arrest is unlawful at the beginning, it cannot be made lawful later, by anything that happens or is discovered afterwards. "In Flagrante Delicto" Rule The term "in flagrante delicto" means "in the very act of committing a crime." I n other words, the suspect was caught red-handed. To be caught in flagrante deli cto necessarily implies positive identification by the eyewitness. The accused s hould be caught immediately after the commission of the act. In flagrante delicto warrantless arrest should comply with the element of immedi acy between the time of the offense and the time of the arrest. For example, in one case the Supreme Court held that when the warrantless arrest was made three months after the crime was committed, the arrest was unconstitutional and illega l. If an accused is caught in flagrante delicto, the warrantless arrest is lawful a nd the evidence obtained in a search incidental to the arrest is admissible as e vidence. One common example of a warrantless arrest is a buybust operation. An offense is committed in the presence or within the view of an officer when th e officer sees the offense, although at a distance; or hears the disturbance tha t it creates and proceeds at once to the scene. If the warrantless arrest turns out to be unlawful, still the court is capable o f assuming jurisdiction over the accused. Any objection to the court s jurisdictio n is waived, when the person arrested submits to arraignment without any objecti on.

The test of in flagrante delicto arrest is that the suspect was acting under cir cumstances reasonably tending to show that he has committed or is about to commi t a crime. Evidence of guilt is not necessary. It is enough if there is probable cause. For example, if there was a prior arrangement to deliver shabu inside a hotel, the immediate warrantless arrest of the accused upon his entry in the hot el room is valid. By contrast, the discovery of marked money on the accused does not justify a warrantless arrest. The police are authorized to make a warrantless arrest at any time or place, und er the doctrine of continuing crime. One example of a continuing crime is rebell ion, for which a warrantless arrest is valid at any time or place. By contrast, inciting to sedition is not a continuing crime, and cannot be the subject of a w arrantless arrest. Hot pursuit arrest rule

Under the rule on "hot pursuit" arrest, the policeman should have personal knowl edge that the suspect committed the crime. The test is probable cause, which the Supreme Court has defined as "an actual belief or reasonable grounds of suspici on." Under this rule, the policeman does not need to actually witness the execution o r acts constituting the offense. But he must have direct knowledge, or view of t he crime, right after its commission. Accordingly, the following are lawful warrantless arrests: * The police had earlier conducted surveillance of the accused. * The policeman sees the offense, although at a distance. * The policeman hears the disturbance created by the offense. * There is probable cause of a communist threat. * There is probable cause of a national security threat. * Shoplifting, when the shopkeeper detains the suspect for the time necessary fo r a reasonable investigation. * Direct contempt committed in the presence of the court, upon the oral discreti on of the presiding judge. * Vagrancy * Frisking the person, or any intrusions short of an arrest, when circumstances combine to establish probable cause and the incidental search reveals that the s olid object is a revolver. This is known as the "Terry stop." * Public intoxication. * Driving while intoxicated. * Investigatory stop of motor vehicle, based on articulable and reasonable suspi cion that the motorist is unlicensed, the automobile is not registered, or eithe r the vehicle or an occupant is otherwise subject to seizure for violation of la w. This is known as the "articulable and reasonable suspicion" standard. * Mentally disabled persons on emergency grounds.

By contrast, the following are unlawful warrantless arrests: * Arrest on the verbal report of a witness. * Arrest based on raw intelligence information. * Arrest based on unreliable hearsay information. * Arrest based on unreasonable suspicion. If a warrantless arrest is made and eventually the court finds the arrested pers ons to be innocent and acquits them, are the arresting officers liable? The answ er is no. Warrantless search The Constitution does not forbid warrantless search; it only forbids unreasonabl e search. The Rules of Court, Rule 126, Section 13, allows a warrantless search, provided it is incident to a lawful arrest. The law provides: "A person lawfull y arrested maybe searched for dangerous weapons or anything which may have been used or constitute proof in the commission of an offense without a search warran t." To be valid, the search must have been conducted at about the time of the arrest or immediately thereafter, and only at the place where the suspect was arrested , or the premises or surroundings under his immediate control. Any evidence obtained during an illegal search (even if it confirms initial susp icion of felonious activity) is considered absolutely inadmissible for any purpo se in any proceeding, since it is considered to be the fruit of a poisonous tree . Since the AntiWiretapping Law provides that an illegal wiretap is inadmisslble for any purpose in any proceeding, being the fruit of a poisonous tree, do you wonder how the alleged Garci tape could be possibly considered admissible? I won der too. A valid arrest must precede the search, not vice versa. One exception to the rul e on search is waiver by the suspect. For example, where the shabu was discovere d by virtue of a valid warrantless search, and the accused himself freely gave h is consent to the search, the prohibited drugs found as a result were inadmissib le as evidence. Another example, is the stopand-frisk rule. A warrantless search is allowed if t he officers had reasonable or probable cause to believe before the search that e ither the motorist is a law offender, or that they did find the evidence pertain ing to the commission of a crime in the vehicle to be searched. The rule for che ckpoints is that the inspection of the vehicle should be limited to a vehicle se arch. The vehicle itself should not be searched, and its occupants should not be subjected to a body search. The following are lawful warrantless searches: * Warrantless search incidental to a lawful arrest recognized under the Rules of Court, Rule 126, Section 12, and by prevailing jurisprudence; * Where consent is given to the search; * Seizure of prohibited articles in plain view. The seizure should comply with t he following requirements:

(1) A prior valid intrusion based on a valid warrantless arrest, in which the po lice are legally present in the pursuit of their official duties. (2) The evidence was inadvertently discovered by the police who had the right to be where they are. (3) The evidence must be immediately apparent. (4) Plain view justified mere seizure of evidence without further search. The rule is that the object must be open to the eye and hand, and its discovery was not evident. If the object seized was inside a closed package, and was not i n plain view, can the policeman make a warrantless search? No. However, he can m ake a warrantless search or seizure if the package proclaims its contents, wheth er by its distinctive configuration, or its transparency; or if it is contents a re obvious to an observer. * Where exigent or emergency circumstances exist. The rule on "exigent circumsta nces" to justify a warrantless search or seizure calls for an immediate search w ithout delay, such as danger or violence or injury to the officers or others, ri sk of the subject s escape, or the probability that, unless taken on the spot, evi dence will be concealed or destroyed. * Where the search is made incidental to an inventory search; * Where the search involves national security; * The search of a moving vehicle, based on the reasoning that it is not practica ble to secure a warrant when the vehicle can be quickly moved out of the localit y. The purpose is to prevent a violation of smuggling or immigration laws. * Search on ships and airplanes for violation of customs laws; * Stop-and-frisk rule; * Inspection of buildings and other premises for the enforcement of fire, sanita ry and building regulations. Police budgetary support As a lawyer and a former RTC judge, I am a very strong lawand-order person. The people upholding law in society are policemen and therefore, all doubts should b e resolved in favor of the police. After all, the Rules of Court provides for th e disputable presumption that official duty has been regularly performed. I submit that it is not fair to demand that the police should risk their very li ves to uphold the rule of law, and yet should be held in low esteem by people wh ose mission in life is to change or disregard the law, outside of constitutional processes. Accordingly, as vice chair of the Senate Finance Committee, I will f ile at the end of the Senate budget hearings, a motion to appropriate the sum of R37 billion for the Philippine National Police. This amount should be appropriated for the following projects: * Additional police stations in tourist destinations and insurgency affected are as; * More ground vehicles, aircraft, and sea craft; * More firearms, both short and long; more radios, whether base, mobile, or hand

held. In my motion, I will cite and express full support for Senate Joint Resolution N os. 4 and 5, which will provide for an increase in daily subsistence allowance f rom R60 to R100, with an additional R20 for those in training. The resolutions a lso provide for adjustment of this amount, based on the Customer Price Index as may be determined by NEDA every three years.