As provided for in Sec. 2, R.A.

7438, custodial investigation includes the practice of issuing an "invitation" to a person who is investigated in connection with an offense he is suspected to have committed. This shall be without prejudice to the liability of the "inviting" officer for any violation of law. Rights of person under custodial investigation

(1) (2) (3) (4)

Right against arbitrary detention (Art. 125 RPC) Right against torture, inhumane treatment (Art. 3, Sec. 12 #2 Consti) Right to remain silent (Art. 3 Sec. 12 #1 Consti) Right against solitary confinement (Art. 3 Sec. 12 #2 Consti)

(5) Right to be assisted by counsel at all times (RA 857) or by a national/international NGO duly accredited by the Office of the President (EO 155) see RA 7438 (6) (7) (8) Right to be informed that anything he says may and will be used against him (Miranda rights) Right to privacy of correspondence and communication (Art. 3 Sec. 3 #1 Consti) Right against unreasonable searches and seizures (Art 3 Sec. 2 Consti)

(9) Right to competent and independent counsel preferably of his own choice and be provided with one if he cant afford the services of counsel (Art. 3 Sec. 12 #1 Consti) (10) Right to waive assistance of counsel provided it be done intelligently and with assistance of counsel (ibid)

Police line-ups

IS A POLICE LINE-UP DEEMED PART OF CUSTODIAL INVESTIGATION?

In the case of Gamboa v. Cruz (162 SCRA 642), the petitioner had not yet been held to answer for a criminal offense when he was identified by the complainant at the police line-up. The Court held that in this case, the police line-up was not part of custodial investigation and therefore the right to counsel

did not attach at that time. The Court held that when the process has not yet shifted from the investigatory to the accusatory as when police investigation does not elicit a confession, the accused may not yet avail of the services of his lawyer.

The Gamboa ruling was reiterated in the case of People v. Santos (236 SCRA 686; 1993), wherein the Court noted that there was nothing in the records of the case that would show that in the course of the line-up, the police investigators sought to extract any admission or confession from the accused.

In the US case of US v. Wade (908 U.S. 218; 1957) however, which involved a post-indictment line-up, it was held that the absence of counsel during the line-up was violative of the accused's rights. The Court held that the post-indictment line-up was a critical stage of the prosecution at which the accused was as much entitled to the aid of counsel as at the trial itself.

Miranda Doctrine

Rights embodied in the Miranda doctrine

a. b. c.

right to remain silent right to counsel right to be informed of the above rights

Constitutional changes in the Miranda doctrine

d.

Waiver of assistance of counsel must now be in writing and in the presence of counsel

e. Persons under investigation are not only entitled to counsel, they are entitled to competent and independent counsel

4.

Harmonize the ruling in Galman v. Pamaran with People v. Ayson

In Galman v. Pamaran, the court opined that the incriminatory testimonies given in the investigation conducted by the Agrava Board were not admissible in evidence by reason of non-compliance with the Miranda warnings. This ruling was made despite its acknowledgment that said testimonies were given before an administrative body, not in a criminal case, and that the suspects werent in custody at the time they gave their testimonies. The reason given was that the protection granted under the Phil. Consti was wider in scope than in the US because the word custodial was not included in our constitution, which extends its protection to any person under investigation for the commission of an offense.

In Pp vs. Ayson, the Court held that the constitutionally mandated Miranda warnings of the accuseds right to silence and counsel are applicable only to police in-custody interrogation as the commencement of adversarial proceedings against the suspect.

To harmonize the 2 cases, Prof. Tadiar commented that although the proceedings before the Agrava Board were certainly not police investigations, they undoubtedly were an integral part of a criminal investigation looking in the double murder. As such, the Agrava proceedings could be held as the commencement of the adversarial criminal process that mandates the right to counsel. This is inapplicable to the Ayson case which involved an administrative investigation by PAL management of a ticket clerk for alleged irregularities in the sale of tickets.

5.

When do the Miranda rights apply?

From the moment of arrest.

6.

Are Miranda rights available in checkpoints and Stop and Frisk situations?

No. There is as yet no arrest. The fact that one consents to the search in the face of armed military men does not constitute waiver of the right against Illegal Search (the person searched may still question the legality of the search).

7. Police ran after a suspect who later hid himself in a building. The police sealed off all points of ingress and egress and later talked to the suspect by megaphone. The police used the information given against him later. Was the suspect deprived of Miranda rights? When is a person considered under detention?

Bautista said: A DOJ circular stated that when the questioning is already removed from in-field questioning, one the person is restricted in his physical movements in any significant way, then the rights arise already Theres no need to put the persons in a cell for him to be considered under detention. Going by the said definition, it is submitted that in the problem above, the suspect is effectively under detention as he is already surrounded by the police with no possible means of escape.

8.

Bautista says:

Not that the scope of exclusion regarding the Privilege against Self-Incrimination and Miranda Rights is not as broad as that afforded when there is a violation of the Right against Privacy of Correspondence and Communication. In the latter, any evidence obtained in violation of said right will be inadmissible for any purpose in any proceeding.

9.

Is there any presumption regarding statements given under police custody?

Yes. The presumption is that such statements were involuntarily made.

10. Is the taping of Bautistas lectures a violation of the Anti-Wiretapping law?

No, since it is with his consent and involves communication that is not the private one contemplated by law.

11. An illegal wiretap was made on the telephone of the accused and from listening to the wiretap, the police came to know of the name and address of a witness who they later got to testify against the accuse. Can such testimony be suppressed on the ground that the name and address of the witness was obtained by an illegal wiretap?

No. The fact the he voluntarily testified in court does not make it the fruit of a poisonous tree and though it may have an effect of attenuating the testimony of a witness; not however Sec. 4 of RA 4200: any communicated/spoken word, or the existence of contents, substance, purport, or meaning of the same or any part thereof, or any info therein contained and obtained/secured by any person in violation of the preceding sections of this Act shall not be admissible in evidence in any judicial, quasijudicial, legislative/administrative investigation/hearing.

12. If the suspect is a lawyer, do the Miranda warning still have to be made?

Yes, because educational attainment is immaterial.

13. Is videotaping a film shown in the theater a violation of RA 4200?

No, thats not a private communication although said act may be a violation of the Copyright law.

Waiver of Miranda rights

What may be waived

The right to remain silent and to counsel may be waived, but never the right to be given the Miranda warnings.

Requirements for a valid waiver

(1)

The waiver must be in writing.

(2) The waiver must made in the presence of counsel.

Burden of proving voluntariness of waiver

The burden of proving the voluntariness of the waiver of the Miranda warnings lies with the prosecution. (People v. Jara, 144 SCRA 516; 1986)

Exclusionary rule

What is the so-called exclusionary rule?

Any confession or admission obtained from the accused in violation of Sec. 12 (custodial investigation) or Sec. 17 (right against self-incrimination) of the Constitution shall be inadmissible in evidence against the accused.

Implications: (2)

(1) The confession / admission can be used against the co-accused.

It can be used in impeachment cases.

(3)

It can be used in rebuttal.

When is the exclusionary rule not applicable?

The Miranda rule, and therefore the exclusionary rule, are not applicable in the following situations:

(1)

Confessions executed before Jan. 17, 1973;

(2)

Res gestae statements (People v. Dy, 158 SCRA 111; 1988)

The declaration of the accused acknowledging guilt made to the police desk officer after the crime was committed may be given in evidence against him by the police officer to whom the admission was made, as part of the res gestae. (People v. Dy)

(3)

Statements given in administrative investigations (People v. Ayson, 175 SCRA 216; 1989)

(4) Official forms prepared and accomplished in the normal course of audit regularly conducted by the Commission on Audit (Kimpo v. Sandiganbayan, 235 SCRA 53);

(5)

X-ray examinations of the body (People v. Tranca, 235 SCRA 455)

Doctrine of fruit of the poisonous tree

Any evidence obtained pursuant to an illegal search or seizure shall be inadmissible against him. And any evidence obtained pursuant to such illegally-obtained evidence shall likewise be inadmissible.

Qualification to the rule: If the evidence could have been discovered even without the poisonous tree, then it is admissible.

Doctrine of attenuated taint

What is the doctrine of attenuated taint?

If the taint is so diffused or remote, then the evidence need no longer be excluded. For example, if the name of a witness is obtained through an illegal wiretap, but such witness voluntarily agrees to testify.

If the suspect in police custody voluntarily starts answering questions without aid of counsel, are the statements given admissible?

No, unless before doing so he had waived the right to remain silent and to counsel in writing and in the presence of counsel.

The theory in Miranda v. Arizona is that the atmosphere in police interrogation is inherently coercive, therefore, statements given under police custody are presumptively involuntary and the burden of showing voluntariness is on the prosecution. Arrest defined

A warrant of arrest is an order addressed to a law enforcement officer commanding him to physically restrain a person to make him answer for the commission of an offense. (Rule 113, Sec. 1)

Kinds of arrests

With warrant Without warrant

When arrest takes place

When arrest takes place: What is the importance of knowing when?

Why is it important to know the precise time of arrest?

To determine whether or not there has been violation of the law against Arbitrary Detention.

Arrest with warrant

Grounds for issuance of warrant

The only ground for issuance of a warrant of arrest is probable cause. Probable cause refers to such facts and circumstances which would lead a reasonably discreet and prudent man to believe that an offense had been committed by the person sought to be arrested.

Who may issue

Who may issue (not effect) a warrant of arrest in our jurisdiction?

According to Harvey v. Santiago: a. b. Judge if the purpose of the arrest is to enable the suspect to answer for a charge CID Commissioner if the purpose is to execute a decision/order

Procedure for issuance

Executing the warrant

How arrest is made

An arrest is made by an actual restraint of a person to be arrested, or by his submission to the custody of the person making the arrest. (Rule 113, Sec. 2)

Who may serve a warrant of arrest

Can anybody be authorized to serve a warrant of arrest?

No. R.113 S.3 says the arresting officer (although it was not expounded who these arresting officers are).

Duty of arresting officer

It is the duty of the officer executing the warrant to arrest the accused and deliver him to the nearest police station or jail without unnecessary delay. (Rule 113, Sec. 3)

Time of arrest

An arrest may be made on any day and at any time of the day or night. (Rule 113, Sec. 6)

Method of arrest

No violence of unnecessary force shall be used in making an arrest. The arrested shall not be subject to a greater restraint than is necessary for his detention. (Rule 113, Sec. 2, 2nd paragraph)

Warrantless arrests

Grounds

Who may effect; how effected

By peace officer

By private person

When is a warrant of arrest not necessary?

(1) When the accused is already under detention pursuant to a warrant issued by the MTC judge in Rule 112, Sec. 6 (b);

(2) When the complaint or information was filed pursuant to Rule 112, Sec. 7, i.e. a valid warrantless arrest;

(3)

When the offense is penalized by fine only. (Rule 112, Sec. 6 (c))

(4)

When the accused lawfully arrested escapes or is rescued (Rule 113, Sec. 13)

Consequences of an unlawful arrest

Modes of attacking the validity

How can you attack an unlawful arrest?

(1)

Motion to quash (Alimpoos v. CA)

(2)

Habeas Corpus (See Rule 102)

(3) Bail (but then you dont really go into the validity of the arrest here Note that under the new rules, an application for or admission to bail is no longer a bar to challenge the validity of an arrest)

Standing to challenge

Time to challenge

Sanctions

What are the consequences of an unlawful arrest?

Illegal arrest is a crime.

How much time between the commission of the offense and the arrest, a week ago? IN determining whether a warrantless arrest is valid or not do we inquire into whether there was adequate opportunity to obtain a warrant? Is the existence of opportunity and time a consideration in determining the validity of a warrantless arrest?

No. See People v. Amundin.

Bautista: take note of the crimes referred to in R. 113 Sec. 5a as continuing crimes laid down by Umil v. Ramos: rebellion, subversion, conspiracy/proposal to commit such crimes, and crimes/offenses committed in furtherance thereof or in connection therewith.

Does a warrant of arrest have to state the name of the person?

No. If unknown name, a sufficient description will do.

If you only have a picture of the suspect, is that enough?

It is submitted that there still has to be a sufficient description.

Does the warrant of arrest have a lifetime?

No, although after 10 days from receipt of the warrant of arrest, the head of the office to whom the warrant was delivered for execution must report to the issuing judge in case of failure to execute the same.

Can the warrant of arrest be served anywhere in the Phil?

Yes.

Anytime?

Yes.

Do you know what a reliable asset is? Police informer.

Q. Mobil car 1 calls police in Mobil car 2 and says that they have a warrant of arrest for B who is now in Mobil car 2s area. Mobil car 1 says please assist us in arresting him. Police in car 2 sees B. Can they arrest him? A. Yes. R113 S7. The officer need not have the warrant of arrest in his possession at the time of the arrest, but after the arrest, if the person arrested so requires, the warrant shall be shown to him as soon as practicable.

Q. Recently, I had a client, a collector of customs. An importer complained to him that a collector was hustling for a bribe in consideration for something. The matter was referred to the NBI who set an entrapment. The NBI officer posted himself outside of Alfredos. There was a meeting between the

Chinese and the collector of customs and according to the collector, they handed some envelopes containing marked money. After that they arrested him without warrant. Is the arrest valid? A. Yes. The person arrested has actually committed a crime in his presence. Arrested person can be said to have been caught in flagrante, hence arrest in valid. [US v. Fortaleza] An offense is committed in the presence of within the view of an officer within the meaning of the rule authorizing an arrest without a warrant when the officer sees the offense, although at a distance, or hears the disturbance created.

On what grounds may a warrant of arrest be issued?

Only one ground: probable cause.

On what ground may a warrantless arrest be made?

Probable cause.

Q. There is this Chinese importer who complained to the Commissioner of Customs that this customs official is trying to extort money from him. You are the legal adviser of the commissioner of customs. You advise him to get a warrant first. How do you go about getting a warrant for the arrest of this customs official? A. Commissioner of Customs executes a complaint under oath, brings it and the Chinese to a judge who shall personally examine him and the Chinese to determine probable cause. If he determines probable cause exists, he issues a warrant of arrest.

Can the NBI agent make a warrantless arrest on the basis of information of a very reliable asset who proves to be correct?

No.

But can it be the basis of obtaining a warrant of arrest?

No, if on the basis of that information only.

Spouse was charged with an offense cognizable by the RTC and the information is filed. You are arrested without a warrant and there was no preliminary investigation. What should you do?

Before entering a plea, file a motion for preliminary investigation [People v. Monteverde].

Q. Does the filing of the complaint in the fiscals office interrupt the prescriptive period for the offense? A. Yes. R110 S1 last paragraph

Scope of the prohibition

The prohibition against unreasonable searches and seizures is imposed only upon the government and its agencies tasked with the enforcement of the law. It does not extend to acts committed by private individuals.

Nature of right against unreasonable searches & seizures

The right against unreasonable searches and seizures is personal; it may be invoked only by the person entitled to it.

Waiver of right

Waiver of the right against unreasonable searches and seizures may be express or implied, but only by the person whose right is invaded, not by one who is not duly authorized to effect such waiver.

SEARCHES WITH WARRANT

Search Warrant defined

A search warrant is 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. (Rule 126, Sec. 1)

Requirements of a valid search warrant

(1) Probable cause

Probable cause refers to such facts and circumstances which would lead a reasonably discreet and prudent man to believe that an offense has been committed and that the objects sought in connection with the offense are in the place sought to be searched.

(2) Personally determined by the judge

Only a judge can determine probable cause to justify the issuance of a search warrant. In doing so, he cannot rely on the prosecutor's findings or certification.

Note: This is to be distinguished from the determination of probable cause by a judge in the issuance of a warrant of arrest. With warrants of arrest, a judge can issue a warrant on the basis of the information filed by the fiscal and the certification of probable cause. (See Rule 112, Sec. 6)

(3) One specific offense

Generally, a search warrant can be issued only in relation to one specific offense.

However, when existing laws prescribe a single punishment for various offenses, then one search warrant may be validly issued for several violations of the same law, as in the case of PD 1866 ( See Prudente v. Dayrit, 180 SCRA 69) and R.A. 6425 or the Dangerous Drugs Act (See People v. Dichoso, 223 SCRA 174).

(4) After an examination under oath and in writing of facts personally known to the complainant and the witnesses he may produce;

The judge must take depositions and attach them to the record of the case. (Mata v. Bayona)

(5) Particularity of description

PURPOSE:

To leave the officers of the law with no discretion regarding what articles

they should seize, to the end that unreasonable searches and seizures may not be made and abuses may not be committed.

SUFFICIENCY: The description of the place to be searched is sufficient if the officer with

the warrant can, with reasonable effort, ascertain and identify the place intended to be searched. (Prudente v. Dayrit)

Failure to state with particularity the place to be searched and items to be seized makes the warrant used for fishing evidence a general warrant which is void.

However, it was held in the case of Kho v. Judge Makalintal (April 21, 1999) that the failure to specify detailed descriptions in the warrant does not necessarily make the warrant a general warrant. The description of the property need not be technically accurate nor necessarily precise, and its nature will necessarily vary according to whether the identity of the property or its character is a concern. Further, the description is required to be specific only insofar as circumstances will allow.

Procedure for Issuance of a Search Warrant

Where filed

Examination

How Search is effected

Period of Validity of search warrant

Time

Property to be seized

The personal property that may be seized pursuant to the search warrant are:

(1) (2) (3)

Subject of the offense; Stolen or embezzled and other proceeds, or fruits of the offense; or Used or intended to be used as the means of committing an offense. (Rule 126, Sec. 3)

It is not necessary that the property to be searched or seized should be owned by the person against whom the warrant is issued; it is sufficient that the property is within his control or possession. (Burgos v. Chief of Staff, 133 SCRA 800)

Procedure

(1)

Admittance to the place of directed search

The officer, upon reaching the place of directed search, must give notice of his purpose and authority to conduct the search to the lawful occupant of the place.

If the officer is refused admittance, he may break open any outer or inner door or window of a house or any part of a house or anything therein to execute the warrant or liberate himself or any person lawfully aiding him when unlawfully detained therein. (Rule 126, Sec. 7)

(2)

Conduct of search

Upon admittance, the officer must conduct the search in the presence of the lawful occupant of the premises or any member of his family, or in the absence of the latter, two witnesses of sufficient age and discretion residing in the same locality. (Rule 126, Sec. 8) Failure to comply with this requirement invalidates the search. (People v. Gesmundo)

(3)

Seizure of property and issuance of receipt for the property seized

Once the property described in the warrant has been found and seized, the officer must give a detailed receipt for such property to the lawful occupant of the premises. In the absence of such occupant, the officer must leave a receipt in the place in which he found the seized property in the presence of at least two witnesses of sufficient age and discretion residing in the same locality. (Rule 126, Sec. 11)

(4)

Delivery of property and inventory to the court

The officer must then make a return on the warrant and deliver forthwith the property seized to the judge who issued the warrant, together with a true inventory thereof duly verified under oath. The judge shall ascertain whether the seizing officer complied with Rule 126, Sec. 11 (as regards issuance of the detailed receipt).

The return on the search warrant shall be filed and kept by the custodian of the log book on search warrant s who shall enter therein the date of the return, the result, and other actions of the judge. (Rule 126, Sec. 12)

A violation of these requirements shall constitute contempt of court. (Rule 126, Sec. 12)

WARRANTLESS SEARCHES

When may a valid warrantless search be made?

1. Search incident to a lawful arrest 2. Search of moving vehicles (But what about mobile homes?) 3. Customs searches or seizure of goods concealed to avoid duties [Uykhetin v. Villareal, Papa v. Magno] 4. Seizure of evidence in plain view 5. Consented searches, or when there is a waiver of the right [De Garcia v. Locisin] 6. Administrative searches 7. Border searches 8. Checkpoints 9. Stop-and-frisk 10. Private searches (People v. Marti)

Search incident to a lawful arrest

As a general rule, as an incident of an arrest, the place of premises where the arrest was made can also be searched without a search warrant. (Nolasco v. Cruz-Pano)

PERMISSIBLE AREA OF SEARCH:

(1) (2)

Person of the accused; premises or surroundings within the accused's immediate control

PURPOSE:

(1) A weapon held by the arrested person may be turned against his captor; and (2) The accused may destroy the proof of the crime if the arrested officer has to

first apply for a search warrant.

You arrested a person without a warrant in the first floor of his house. Can you search the second floor without a search warrant?

No. The Nolasco v. Pano [ 139 SCRA 152] ruling was reconsidered in Nolasco v. Pano [147 SCRA 509] which held that a warrantless search made as an incident to a lawful arrest is to be strictly applied and absolutely limited only to a search of the person and of the place where the arrest was made.

Consensual / Consented Searches

The requisites for a valid waiver or consented search are as follows:

(1) (2) (3)

The Constitutional right exists; The person involved had either actual or constructive knowledge of such right; and There was an actual intention to relinquish the right.

Q.

You stay in a room at Philippine Plaza. Scenario:

NBI: [knocks]

A girl from the room: Sino sila? NBI: NBI ho. Ito ho ba ang kwarto ni Mr. B? Girl: Opo. NBI: Nandyan ba siya? Girl: Wala ho, nasa ibaba, baka nagdisco. NBI: Pwede bang pumasok? Girl: Pwede ho. [opens door] NBI: [enters] Pwede bang tumingin-tingin? Girl: Kahit ano ho pwede. [NBI finds shabu and dirty pictures] Valid warrantless search?

A. Yes. [Lopez v. Commissioner of Customs 68 SCRA 320] Under the circumstances, that was the most prudent course of action (for the woman). It would save her and even petitioner Velasco himself from any gossip or innuendo. Nor could the officers of the law be blamed if they would act on the appearances. There was a person inside who from all indications was ready to accede to their request. Even ordinary courtesy would preclude them from inquiring too closely as to why she was there.

Bernas comment: If the right against unreasonable search and seizure is a personal right, may it be waived by somebody other than the person himself? Bautista: Why, is the girl authorized to give consent?

Plain View

Requisites for a valid warrantless search under the plain view doctrine:

(1) Prior valid intrusion based on the valid warrantless arrest in which the police are legally present in the pursuit of their official duties; (2) (3) (4) (5) The evidence was inadvertently discovered by the police who have the right to be where they are; The evidence must be immediately apparent; Plain view justified the seizure of the evidence without any further search; The thing itself is illegal or prohibited.

The plain view doctrine is not applicable in cases wherein the subject items are not illegal per se, e.g. boy scout uniforms that are suspected to be counterfeit items.

Suppose there is a warrant for the search of the premises of B for shabu but they find betamax tapes which are pirated. Can they seize the tapes which are displayed?

No. Plain view doctrine presupposes that the criminal nature of the articles is clear at that point without further search. Perhaps, if they were armalites, yes, because B cannot possibly be licensed to have an armalite as he is not a soldier.

Checkpoints and Roadblocks

In the case of Valmonte v. De Villa (178 SCRA 211; 1989), it was held that a warrantless search at a checkpoint or roadblock is valid for as long as the vehicle is subjected to a mere visual search, and the occupants are not subjected to a body search.

Private Searches

In the case of People v. Marti (193 SCRA 57; 1991), it was held that if a search is made at the behest or initiative of the proprietor of a private establishment for its own and private purposes and without the intervention of police authorities, the right against unreasonable searches and seizures cannot be invoked.

Remedies against unlawful searches and seizures

(1)

Suppression of the evidence through either

(a) (b)

quashal of the search warrant - available only when there is a search warrant motion to suppress evidence - available whether or not there is a search warrant

(2) (3) (4)

Criminal actions for illegal search Civil actions against those responsible Administrative actions

What is the remedy to an illegal search?

A motion to quash the search warrant and/or to suppress evidence. (See Rule 126, Sec. 14)

Search only up to the point within the immediate control of arrestee. If you arrested him in the front lawn of his house, you cannot go inside.

Dorm matron, UP security. Matron is very well trained, well equipped and said ok when security asked to search premises. Search valid?

Consent given by the matron is valid with respect to the general areas of the dormitory but with respect to the individual rooms, consent is not validly given unless the residents themselves would give consent.