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ARREST
Arrest the taking of a person into custody in order that he may be bound to answer for the
commission of an offense (Sec. 1 Rule 113).
Modes of Arrest
1. arrest by virtue of a warrant
2. arrest without a warrant under exceptional circumstances as may be provided by statute
(Sec. 5, Rule 113).
A warrant of arrest has NO expiry date. It remains valid until arrest is effected or warrant is lifted.
Posting of bail does not bar one from questioning illegal arrest (Section 26, Rule 114, Rules of
Court).
Upon arrest, the following may be confiscated from the person arrested:
1. Objects subject of the offense or used or intended to be used in the commission of the
crime;
2. Objects which are the fruits of the crime;
3. Those which might be used by the arrested person to commit violence or to escape;
4. Dangerous weapons and those which may be used as evidence in the case.
Unlike a search warrant which must be served only in daytime, an arrest may be made on any
day and at any time of the day or night, even on a Sunday. This is justified by the necessity of
preserving the public peace.
Under this rule, an arrest may be made even if the police officer is not in possession of the
warrant of arrest (Mallari vs. Court of Appeals, 265 SCRA 456). Exhibition of the warrant prior to
the arrest is not necessary. However, if after the arrest, the person arrested so requires, the
warrant shall be shown to him as soon as practicable.
Sec. The officer shall inform the person to be 1. when the person to be arrested flees;
7 arrested the cause of the arrest and the 2. when he forcibly resists before the
fact that the warrant has been issued for officer has an opportunity to inform him;
his arrest. and
Note: The officer need not have the 3. when the giving of such information will
warrant in his possession at the time of imperil the arrest.
the arrest BUT must show the same
after the arrest, if the person arrested so
requires.
Sec. The officer shall inform the person to be 1. when the person to be arrested is
8 arrested of his authority and the cause of engaged in the commission of an offense or
the arrest w/out a warrant is pursued immediately its commission;
2. when he has escaped, flees, or forcibly
resists before the officer has an opportunity
to so inform him; and
3. when the giving of such information will
imperil the arrest.
Sec. The private person shall inform the 1. when the person to be arrested is
9 person to be arrested of the intention to engaged in the commission of an offense or
arrest him and the cause of the arrest. is pursued immediately its commission;
2. when he has escaped, flees, or forcibly
Note: Private person must deliver the resists before the officer has an opportunity
arrested person to the nearest police to so inform him; and
station or jail, otherwise, he may be held 3. when the giving of such information will
criminally liable for illegal detention. imperil the arrest.
Only an officer making the arrest is governed by the rule. It does not cover a private individual
making an arrest.
Requisites before an officer can break into a building or enclosure to make an arrest:
1. That the person to be arrested is or is reasonably believed to be in said building;
2. That he has announced his authority and purpose for entering therein;
3. That he has requested and been denied admittance.
Generally, a lawful arrest may be made anywhere, even on private property or in a house. This
rule is applicable both where the arrest is under a warrant, and where there is valid warrantless
arrest.
Section 12. Right to break out of the building or enclosure to effect release.
A private person making an arrest CANNOT break in or out of a building or enclosure because
only officers are allowed by law to do so.
Where a person lawfully arrested escapes or is rescued, any person may immediately pursue or
retake him without a warrant at any time and in any place within the country. The pursuit must
be immediate.
RA 7438 defined certain rights of persons arrested, detained, or under custodial investigation,
with the penalties for violations thereof.
RULE 126
SEARCH AND SEIZURE
Search Warrant an order in writing issued in the name of the People of the Philippines,
signed by a judge and directed to a peace officer commanding him to search for personal
property described therein and bring it before the court.
General Warrant a search warrant which vaguely describes and DOES NOT particularize the
personal properties to be seized without a definite guideline to the searching team as to what
items might be lawfully seized, thus giving the officers of the law discretion regarding what
articles they should seize.
A general warrant is NOT VALID as it infringes on the constitutional mandate requiring particular
description of the things to be seized.
Order directed to the peace officer to Order in writing in the name of the RP
execute the warrant by taking the person signed by the judge and directed to the
stated therein into custody that he may be peace officer to search personal property
bound to answer for the commission of the described therein and to bring it to court.
offense. (sec. 1)
Does not become stale validity is for 10 days only (sec. 9)
May be served on any day and at any time to be served only in daytime unless the
of day or night. affidavit alleges that the property is on the
(sec. 6, rule 113). person or in the place to be searched.
(sec. 8)
upon probable cause to be determined personally by the judge after examination in
writing and under oath in the form of searching answers and questions.
Only issued if there is a necessity of sworn statements and affidavits of
placing accused under immediate custody complainant and witnesses must be
submitted to court.
EXCEPTION:
AN APPLICATION FOR SEARCH WARRANT SHALL BE FILED WITH THE FF:
1. any court within whose territorial jurisdiction a crime was committed;
2. any court within the judicial region where the crime was committed if the place of the
commission of the crime is known, or any court within the judicial region where the
warrant shall be enforced;
3. HOWEVER, if the criminal action has been filed, the application shall only be made in
the court where the criminal action is pending.
In a search incidental to an arrest even WITHOUT a warrant the person arrested may be
searched for:
1. dangerous weapons, and
2. anything which may be used as proof of the commission of an offense.
REQUISITES
1. must be issued upon probable cause;
2. probable cause must be determined by the issuing judge personally;
3. the judge must have personally examined, in the form of searching questions and
answers, the applicant and his witnesses and taken down their written depositions;
4. the search warrant must particularly describe or identify the property to be seized as far
as the circumstances will ordinarily allow;
5. the warrant issued must particularly describe the place to be searched and the persons
or things to be seized;
6. it shall issue only for one specific purpose; and
7. it must not have been issued more than 10 days prior to the search made pursuant
thereto.
The remedies are alternative; if a motion to quash is denied, a motion to suppress cannot be
availed of subsequently.
Where the search warrant is a PATENT NULLITY, certiorari lies to nullify the same.
The illegality of the search warrant does not call for the return of the things seized, the
possession of which is prohibited by law. HOWEVER, those personalities seized in violation of
the constitutional immunity whose possession is not of itself illegal or unlawful ought to be
returned to their rightful owner or possessor.
Any evidence obtained in violation of the constitutional immunity against unreasonable searches
and seizures are inadmissible for any purpose in any proceeding (Section 2, Article III, 1987
Constitution).
When may a search warrant be said to particularly describe the thing to be seized:
1. the description therein is as specific as the circumstances will allow;
2. when it expresses a conclusion of fact by which the warrant may be guided; or
3. when the things described are limited to those which bear a direct relation to the offense
for which the warrant is issued.
PROBABLE CAUSE - facts and circumstances which could lead a reasonable, discreet and
prudent man to believe that the property subject of an offense is in the place sought to be
searched.
Manner on how a judge should examine a witness to determine the existence of probable
cause:
1. the judge must examine the witnesses personally
2. the examination must be under oath
3. the examination must be reduced to writing in the form of searching questions and
answers
Such personal examination is necessary in order to enable the judge to determine the existence
or non-existence of a probable cause.
In order to insure that the execution of the warrant will be fair and reasonable, and in order to
insure that the officer conducting the search shall NOT exceed his authority or use unnecessary
severity in executing the search warrant, as well as for the officers own protection against
unjust accusations, it is required that the search be conducted in the presence of the:
1. lawful occupant of the place to be searched,
2. or any member of his family,
3. or in their absence, in the presence of two witnesses of sufficient age and discretion
residing in the same locality.
This requirement is mandatory.
GENERAL RULE:
A search warrant must be served in the day time.
EXCEPTION:
A search warrant may be made at night when it is positively asserted in the affidavit that the
property is on the person or in the place ordered to be searched (Alvares vs. CFI of Tayabas, 64
Phil. 33). The affidavit making such assertion must itself be sufficient as to the fact so asserted,
for if the same is based upon hearsay, the general rule shall apply.
A search warrant conducted at night without direction to that effect is an unlawful search. The
same rule applies where the warrant left blank the time for making the search.
A public officer or employee who exceeds his authority or uses unnecessary severity in
executing the warrant is liable under Article 129 of the Revised Penal Code.
10 days from its date, thereafter, it shall be void. A search warrant can be used only once,
thereafter it becomes functus oficio.
While, under section 10, a search warrant has a validity of 10 days, NEVERTHELESS, it
CANNOT be used every day of said period and once articles have already been seized under
said warrant, it CANNOT be used again for another search and seizure, EXCEPT when the
search conducted on one day was interrupted, in which case the same may be continued under
the same warrant the following day if not beyond 10 day period. (Uy Kheytin vs. Villareal, 42
Phil. 886)
Section 12. Delivery of [property and inventory thereof to court; return and proceedings
thereon.
The law imposes upon the person making the search the duty to issue a detailed receipt for the
property seized. Additionally, he is likewise required to make a return of the warrant to the court
which issued it, together with an inventory of the property seized.
Search and seizure of vessels and aircraft may validly be made without a search warrant
because the vessel or aircraft can quickly move out of the jurisdiction before such warrant could
be secured.
The remedy for questioning the validity of a search warrant can only be sought in the court that
issued it, not in the sala of another judge of concurrent jurisdiction. Except where there is
already a case filed, the latter shall acquire jurisdiction to the exclusion of other courts.
Filing of motion to quash is without prejudice to any proper recourse to the appropriate higher
court by the party aggrieved.