ARREST

Article 3, Sec. 2 on search and arrest of the 1987 constitution provides that:
 The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures of
whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon
probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the
witnesses he may produce, and particularly describing the place to be searched, and the persons or things to be seized.

 As it goes Sec. 2, Article 3 of the 1987 constitution protects every person against unreasonable search and arrest. When you speak
of person, it mainly refers to natural persons, human beings, or individuals like us. Yet, I’d like to underscore the fact that the
protection enshrined under sec.2 article 3 applies not only to Filipinos but also to foreigners, so Filipinos and foreigners alike are
entitled to be secured in their persons, meaning bodies, against unreasonable search or arrest, houses, papers and effects and in
their respective offices.
 In fact, in one case decided by the US Supreme Court, a protection afforded to under Sec. 2 Article 3 of our 1987 Constitution
which was actually copied from the US constitution was made to apply to a person who was inside a telephone booth, so that is
how sacred this right against unreasonable search and seizure is and the 2 nd paragraph of sec. 3 article 3 provides that any
evidence obtained in violation of sec. 2 article 3 shall be inadmissible for any purpose and for any proceedings.
 You recall the case of People v. Caballes, the kakawati leaves. It was found out that indeed he was transporting stolen goods
yet it was found out that the search was illegal. Look what happened? Caballes was acquitted.
 You recall the case of People v. CA, regarding the raid on Apartment no. 1 which is adjacent to Abegail’s store. The search was
declared invalid, so the accused was acquitted, even if it was found out that the accused was in possession of explosives.
 You look at the case of Malacat, Malacat was found in a possession of a grenade yet considering that the search was invalid the
evidence or grenade that was taken from him was rendered or decreed to be inadmissible in court.
 General Rule: Any evidence obtained in violation of sec. 2 article 3, among others, is inadmissible for any purpose or in any
proceedings.
 You recall the case of People v. Bongcarawan, Bongcarawan was searched by the security guards of the vessel and it yielded a
positive result. He argued that the search was invalid. The SC said that the search was valid because it was with the consent of
Bongcarawan, yet the SC in that case went on to rule that even supposing or even granting arguendo that the search conducted
on Bongcarawan was illegal, yet the evidence obtained from him would still be admissible in court. Why? Because the search,
although it may be regarded as illegal, was not done with the intervention of the State. Verily, the case of Bongcarawan,
our SC made it clear that the exclusionary rule in respect to evidence illegally obtained or evidence obtained through
illegal search and arrest may only be invoked if the search that is decreed illegal is done with the active intervention
of the State or any of its agents.
 Rule on admissibility of evidence obtained from a search by a private party: Even if the search is illegal, but the search is
done without the intervention of the State or that it is done by a mere private person, then the evidence obtained thereby may
still be admissible in court. Again, the rule is that the proscription against unreasonable search and arrest as well as the
exclusionary rule in respect to evidence obtained may only be invoked if the search or the illegal arrest is done with the active
intervention of the State. But actually in the ruling in the case of Bongcarawan is nothing but a reiteration on the previous rulings
in the case of People v. Marti.
 In the case of PP v. Marti, Marti sent a package through a private courier and without the knowledge of Marti, the staff of the
private courier inspected the package that was sent by Marti and it was found out that the package contained marijuana. On the
basis of such finding, Marti was prosecuted for illegal possession of prohibited drugs. Marti objected invoking the rule under the
Constitution to the end that any evidence obtained in violation of the right against unreasonable search or arrest should be
inadmissible in evidence. Yet our SC disagreed, again just like in the case of Bongcarawan, our SC declared in the case of Marti
that the exclusionary rule in respect to evidence illegally obtained may only be successfully invoked if the search or the illegal
search is conducted by the State or any of its agents.
 In the case of Waterous Drugs Corp v. NLRC, G.R. No. 113271, Oct. 16, 1997, an employee was dismissed because it was
found out that this personnel or employee was receiving kickbacks from the supplier of the company. But it was found out that
this person received kickback because the employer or the management intercepted a mail matter that was addressed to that
employee. There was an envelope, it was opened without the knowledge of that employee, although it was addressed to him and
when it was opened it was found out that it contained the check representing the kickback of that employee. In the labor
proceedings, the employer introduced evidence the check that it confiscated from the employee and the employee objected
because according to him it was the “fruit of the poisonous tree.” According to the employee, such should be inadmissible in court
because it was a result of an illegal search, but the SC again disagreed, because it was found out that the search was without the
intervention of the state, such that in the case of Bongcarawan, our SC declared that the exclusionary rule in respect to the
evidence illegally obtained may not be successfully invoked therein.
 It can only be invoked, again, if the illegal search or arrest is done with the active intervention of the state or any of its agents.
The reason is that the provisions under the Bill of Rights of art. 3 of the 1987 constitution are directed against the
state, because the provisions under article 3 would serve as limitations in the exercise of the 3 inherent powers of the state. So
that is why the SC, again, ruled that any evidence illegally obtained basically will be admitted in court if such illegal search is
perpetrated by private individuals.
 But the ruling in one case is peculiar, I’m referring to Zulueta v. CA, G.R. No. 107303, Feb. 20, 1996. In the case of Zulueta,
Zulueta is a wife of a doctor then his wife suspects that her husband has an illicit relationship with another woman. So what she
did was that she went to the clinic of her husband, then without the knowledge of the husband the wife ransacked the drawer of
the husband. It was forcibly opened and there upon she discovered that there were letters that were sent by the mistress of the
husband. She filed a case against the husband, using the incriminating evidence as proof of her concubinage. The husband
objected, probably invoking the case of Marti, Waterous Drugs and Bongcarawan or the provision under sec. 3 Article 3 to the end
that any evidence illegally obtained should be inadmissible in court. The SC said that the evidence obtained by the wife is
inadmissible in court, notwithstanding the fact that the illegal search was perpetrated by a private individual. So the ruling in the
case of Zulueta is diametrically opposed to the rulings in the cases of Bongcarawan, Waterous Drugs, and Marti.
 GENERAL RULE: Warrantless search or arrest is unlawful and whatever evidence recovered will be inadmissible in any court or
proceeding.
 EXCEPTION: If the warrantless search or arrest is done by a private individual, it is then valid because sec. 2 Article 3 is only
applicable when the warrantless search or arrest is done by the state or any of its agents.
 The protection against unreasonable search and arrest is granted to natural persons, but it is also available or granted to
juridical persons, like corporations and partnerships.
 In the case of David v. Arroyo, G.R. No. 171396, May 6, 2003. You recall that during the celebration of the People Power the
supporters of Erap rallied to Malacañan, such that Gloria declared of State of National Emergency and pursuant to which the PNP
rounded up the premises of the Daily Tribune and Malaya Newspaper and they conducted a search without a warrant. SC then
declared that the prohibition under unreasonable search and arrest is also applicable or may be in favor of juridical persons like
the Daily Tribune and the Malaya Newspaper. The protection of unreasonable search or arrest is available not just to natural
persons but also to juridical persons like partnerships or corporations. Apply Expressio unius clause.
 Sec 2 Article 3 of the 1987 constitution protects us against unreasonable search and arrest. Conversely, that particular provision
under the constitution does not protect us from search or arrest that is considered however as legal. It only protects us
against unreasonable search of arrest. As a matter of general rule, a search and arrest is valid or done legally if the same if the
same is covered by a search warrant or a warrant of arrest as the case may be. You take note however that sec 2 Article 3
prescribes the requisites for the valid issuance of a search warrant or a warrant of arrest.
 As provided for under sec 2 Article 3, among others, there should be probable cause and such probable cause must be determined
personally by the judge and that such determination of probable cause must be done after examination under oath or affirmation
of the complainant and the witnesses that may be produced and that there should be particularity in the description of the place
to be search or the person or things to be seized. So, in other words, these are four concurring requisites in that absent of any
one of them would whether the issuance of a warrant of arrest or search warrant as the case may be invalid.

Requisites for the issuance of a valid warrant of arrest or a search warrant:

1. Probable cause
2. Such probable cause must be personally determined by the judge
3. After examination under oath or affirmation of the complainant and the witnesses produced
4. There should be particularity in the description of the place to be searched or the persons and things to be seized

Warrant of Arrest
 A warrant of arrest is a process or a legal document issued by the court of law or a tribunal clothe with the authority commanding
or directing the law enforcement agencies to arrest a designated person.
 For such warrant of arrest to be validly issued, the same must be done with the concurrence of the four requisites that we already
enumerated.

1. Probable cause.
 What is probable cause? Is this the same as suspicion? NO.
 For purposes of the issuance of a search warrant, the term probable cause refers to such fact or circumstances as to lead a
reasonably prudent man to believe that a crime has been committed and that the person sought to be arrested is the
one responsible for the crime.
 Probable cause is different from suspicion in that probable cause is generally based on facts and circumstances, whereas
suspicion probably there is a result of a speculation or guess word so it does not have to be based on facts or circumstances.
Probable cause is more than suspicion.

2. Such probable cause must be personally determined by the judge

 Which judge can issue a warrant of arrest? Well, the RTC judge no doubt can issue a warrant of arrest. How about justices of the
CA, they do not conduct trial, but can they issue a warrant of arrest? YES. How about justices of the SC? YES. How about judges
of lower courts, like MTC, MTCC, MCTC? YES.
 All judges at all court levels have the power to issue a warrant of arrest.
 How about administrative tribunals, do they have the power to issue a warrant of arrest? How about administrative tribunals
performing quasi-judicial functions? In the case of Morano v. Vivo, the SC ruled that administrative bodies may issue warrants
of arrest but the same may only be done to carry out a final finding of a violation of the law as in a case of enforcing a deportation
order or an order of contempt. That is why if the labor arbiter in the NLRC conducts a hearing and then somebody disturbs the
proceeding then the labor arbiter may cite that person in contempt, and the labour arbiter may order the arrest of that person
even if the labor arbiter of the NLRC is an administrative body.
 The House of Reps, Senate, or any committee thereof has the power to conduct inquiries supposedly in aid of legislation, do they
have the power to cite in contempt the person invited when he does not show up in proceedings? YES. As was ruled in the case of
Arnold v. Nazareno, no doubt administrative bodies, even the Congress, has the power to issue a warrant of arrest
but only to carry out a final determination of a violation of the law.
 Example, if there is then a final order of deportation of a foreigner, the BID commissioner may then issue a warrant of arrest for
the apprehension of that person. But as a rule, the BID commissioner may only issue a warrant of arrest for purposes of carrying
out and order of deportation and not for the purposes of conducting an investigation. Again, the rule is that such may only be
issued by administrative bodies if only to carry out a final determination or final finding of a violation of the law.
 But in the ruling in the case of Harvey v. Santiago, 164 SCRA 840, is different. Then commissioner Santiago of BID issued a
warrant of arrest if only to apprehend those persons for them to be investigated, so Harvey et. al questioned the validity of the
arrest because according to them citing the case of Morano, the BID commissioner may only issue a warrant of arrest if there is
only an order of deportation. But in case of Harvey v. Santiago the order of arrest was issued even without the BID having issued
yet the order of deportation, yet in that case our SC upheld the issuance of warrant of arrest because it was established that there
was already a prior surveillance that was conducted. There was already a preliminary finding that indeed the respondents who
were to be arrested were already committing a crime, but the general rule is that in the case of Morano v. Vivo.
 GENERAL RULE: All judges on any court levels can issue a warrant of arrest
 EXCEPTION: Administrative bodies given that there is already a final determination of a violation of the law
 EXCEPTION TO THE EXCEPTION: Administrative bodies that have already a preliminary finding that person to be arrested had
violated the law.

3. After examination under oath or affirmation of the complainant and the witnesses produced
 This is the most ticklish of the requisites for the issuance of a warrant of arrest.
 Such is ostensibly clear under sec 2 Article 3. Take note however of the ruling of Soliven v. Makasiar, is the judge mandated to
conduct a personal examination of the complainant before he can issue a warrant of arrest? NO, notwithstanding the clear import
of sec 2 Article 3. According to the SC to require a judge to conduct a personal examination before he would issue a
warrant of arrest it would then eat up the precious time of the court. So the rule as it is now and pursuant to the rule on
Soliven v. Makasiar a judge issuing a warrant of arrest is not anymore required to conduct a personal examination of the
complainant and its witnesses. All that the judge must do is to evaluate the records of the case, evaluate the affidavit
complaint the supporting evidence, the affidavit of witnesses and counter affidavit is any, as well as the resolution
of the investigating prosecutor.
 Take not however, that the judge is not duty bound to hook line and sinker the resolution of the fiscal. In order words, the judge
must come up with his own personal determination in the existence of absence of probable cause. He should not rely
on the findings or resolutions of the fiscal. The reason is plainly evident because the resolution of the fiscal is merely in respect to
the existence of absence of probable cause for purposes of indictment, for purposes of filing an information in court. Whereas, the
probable cause to be determined by the judge is for purposes of issuing a warrant of arrest. But then the rule is that the judge,
as what was ruled in the case of Makasiar, is not required to conduct a personal examination of the complainant and his witnesses,
all he has to do is to evaluate the records of the case.
 This is anchored however on sec 5 par a Rule 112, ROC wherein it is provided in essence that within 10 days after the filing
of the information in court, the judge has to personally evaluate the records of the case and the resolution of the
fiscal. The judge may dismiss the case is he finds that there is no evidence showing probable cause.
 Conversely, if records would show that the evidence is showing probable cause that judge may issue a warrant of arrest or may
issue a commitment order if the accused is already arrested without a warrant.
 In case of doubt, the judge will direct the prosecution; direct the complainant to provide for additional evidence within five (5)
days from notice and such incident must be resolved within a period of thirty (30) days from the submission of such required
additional evidence. In other words, under sec 5 (a) Rule 112, ROC, the judge indeed is not mandated to conduct a personal
examination of the complainant and his witnesses before he can issue a warrant of arrest. Again, all that the judge must do is just
to evaluate the records of the case, including the resolution of the fiscal.

Q: Does the same principle apply in search warrants?

 A: NO, IT IS DIFFERENT. The reason behind the relaxation of the rule in respect to the issuance of the warrant of arrest is that
after all before the case is filed in court it already underwent a preliminary investigation conducted by the fiscal wherein he already
determined the existence of probable cause.

Unlike for purposes of search warrant, the application for the issuance of a search warrant is filed directly with the judge. It is
filed directly to the court. But in respect to a warrant of arrest, normally before the case is filed in court the case must be filed in
the office of the prosecutor. Such that when the fiscal finds probable cause that is the time that the information is filed in court.

In other words, in respect to the issuance of a warrant of arrest there is already, more or less a preliminary finding of probable
cause and such circumstance is not obtaining in respect to the issuance of a warrant of arrest. Again, the application of a search
warrant is filed not in the office of the prosecutor, but directly with the court. For me that is the most compelling reason why
somehow there is a relaxation on the rule in respect to the issuance of a warrant of arrest because of this preliminary determination
of existence of probable cause.

I mentioned to you that in sec 5 (a) Rule 112, ROC that the judge is given ten (10) days within which to determine the existence
of absence of probable cause for purposes of the issuance of a warrant of arrest. Based on experience, more or less, as soon as
the information is filed in court it will only take 2 or 3 days or within 1 week there will be a warrant of arrest. On the lapse of the
ten (10) days, judge can still issue a warrant of arrest, although they are mandated or as a rule that it has to be done within a
period of 10 days.

 TIPS – effective, but quite unethical: If you are the lawyer of the accused, what will you do? Where more or less the issuance of
a warrant of arrest will be expected once there is an information in court? You file a motion for a judicial determination of probable
cause. Use the same provision of the law or the Rule 112 sec 5 (a), because once you file that motion the judge will be compelled
to examine or evaluate the records of the case. The judge will be mandated to study the case meticulously, such that in case of
doubt the judge will issue an order directing the complainant or the fiscal to present additional evidence and such incident will be
decided within a period of 30 days. So by doing that therefore, you forestall the issuance of the warrant of arrest, there will be
then a hearing. Giving of course for one to compel the judge to eruditely examine the records of the case for him to determine
the existence or absence of probable cause and the second reason is to give time for your client to probably abscond. File the
motion before the issuance of the warrant of arrest.
 GENERAL RULE: Judges are not duty bound to personally examine the complainant and his witness. He only needs to examine
the records of the case and the resolution of the fiscal, in which he is not also bound to follow.

Difference between judge and fiscal’s determinations:

 FISCAL - merely in respect to the existence of absence of probable cause for purposes of indictment, for purposes of filing an
information in court.
 JUDGE - determines the probable cause for purposes of issuing a warrant of arrest.

Judge’s options:
 Issue a warrant upon finding existence of probable cause.
 In case of doubt, direct the prosecution and complainant to submit additional evidence, in accordance to sec. 5 (2), Rule 112,
ROC

4. There should be particularity in the description of the place to be searched or the persons and things to be seized
 As a rule, if the full name of the person is known, that should be stated in the warrant, and if his address is known, it should also
be stated in the warrant.
 But how about in cases where the true name of the accused is not known to the authority, may a warrant of arrest be issued to a
person? i.e. John/Jane Doe? Yes, and that John/Jane Doe warrant is valid for as long as that is accompanied by a description
personae of that person to be arrested, meaning to say description of that person to be arrested only to guide the law
enforcement agencies on whom to arrest pursuant to that particular warrant.
 If a John/Jane Doe warrant is issued without an accompanying description personae of the person to be arrested, then such
warrant of arrest therefore is invalid.
 In the case of PP v. Tui Won Chua, the warrant of arrest was against Timothy Chua, but the person arrested is of the name Tui
Won Chua. Did the court invalidate the warrant? NO, the warrant was accompanied by a description personae, the address was
stated in the warrant itself. More so that in that case, the arresting officers had personal knowledge as of the identity of that
person to be arrested in the search because they were the once who conducted the prior surveillance. So the case of Tui Won
Chua only proves that indeed an error or mistake in the description of a person may be cured by a description personae or by the
personal knowledge enforcing the warrant.
 But the case of Pp vs. Priscella del Norte is different because the officers enforcing the warrant were not the ones who conducted
the prior surveillance. In fact, they did not know who Ising Diwa (the subject of the warrant) is. The barangay official who told
them that Ising Diwa was Prescilla del Norte did not testify in the course of the trial, so that was the pitfall in the case of Prescilla
del Norte. According to the law, any mistake or imperfection in describing the person sought to be arrested will be cured by the
description personae or even the personal knowledge of the person enforcing the warrant.
 GENERAL RULE: imperfection or mistake in the description of the person sought to be arrested will invalidate an arrest to a
person.
 EXCEPTION: If the arresting officer enforcing the warrant has personal knowledge of the arrest or by a description personae

Enforcement of a Warrant of Arrest

 Assume that these requisites are present in a particular case such that a judge issues a warrant of arrest. How should a warrant
of arrest be enforced? Who will enforce it?
 Once the warrant of arrest is issued, copies of which will be furnished to the law enforcement agencies, particularly the PNP. Take
note that under sec 4, Rule 113, ROC, the law enforcement agencies is given 10 days within which to act on that search
warrant and the 10 day period should be reckoned from the date wherein the law enforcement agency concerned
received a copy of such warrant of arrest.
 After that period that law enforcement agency concerned is mandated to submit a report to the court on the action that it takes
on that particular warrant of arrest.
 After 10 days, what happens to the warrant if the same is not served? Does that cease to be valid? NO, it will remain valid al
throughout until such case is dismissed. The 10-day period is merely for the law enforcement agency to act on the warrant
of arrest and for them to submit to the court the report as to the actions that they will take on that particular warrant
of arrest.
 Take not further, that under sec. 6, Rule 113, ROC, a warrant of arrest, as distinguished from a search warrant, may be served
at any time of the day or night.
 Normally, when we talk about a search warrant, it is usually served only on day time except if the judge states that it
may be enforced during night time. But in so far as a warrant of arrest it can be served at any time of the day or night, such
that even if during night time the accused is still doing his marital obligation the police officer can still serve the warrant. Again,
unlike a search warrant, a warrant of arrest can be served anytime of the day or night.
 Take note that under sec. 7, Rule 113, ROC, the officer arresting a particular person against whom a warrant is already
issued by the court may not have with him a copy of a warrant while he is affecting an arrest. What is important is that
the officer knows already that there is a pending warrant against that person.
 This happened in the case of Villaruiz. Villaruiz is a Cebuana and her boyfriend was British national. They were accused of abducting
Ella Joy and for killing the child. Villaruiz was arrested by police officer Labra there in Manila which at that time Labra did not have
with him a copy of the warrant of arrest. It was questioned by the defense, yet it was ruled that arrest was valid after all there is
already a pending warrant for the arrest of Villaruiz.
 Take note that under sec. 11, Rule 113, ROC, the police officer enforcing the warrant is justified to employ reasonable
force in effecting the arrest in that the police officer enforcing the warrant of arrest may even break open an enclosed premise
or any enclosure in only to get out there from.

Situation: On a process of executing a warrant of arrest, the informant decides not to proceed with the case, will the
officer be held liable in case the one supposed to be arrested files a case?

A: No. The police officer will not be held liable. Unless there is an order coming from the court recalling that particular warrant and
unless the same is communicated to the police officer concerned, the police officer incurs no liability, the same as to search warrants.

Take in note, in course of our discussion, a search warrant has a life span. A search warrant is good for 10 days reckoned from
the issuance thereof, but a warrant of arrest is not necessarily invalid after the lapse of 10 days.

Warrantless Arrests
 As a rule, for an arrest to be valid is has to be covered by a warrant of arrest, but that is merely a general rule. In our jurisdiction
there are exceptional circumstances under which a warrantless arrest is considered valid.
 The exceptions are provided for under sec. 5 Rule 113, ROC.

Instances where a warrantless arrest is valid

1. In flagrante Delicto - When the person arrested is actually committing, is about to commit, or has committed an offense in the
presence of the police officer or even a private citizen
2. Hot Pursuit
3. Accused is an Escape Prisoner, whether convicted or temporary detention
4. Other warrantless arrest – Consented Arrest

1. In flagrante Delicto
 A warrantless arrest is valid when the person arrested is actually committing an offense, is about to commit an offense, or has
committed an offense in the presence of the police officer or even a private citizen.
 Conversely, under sec. 5 Rule 113, ROC, even a civilian can effect an arrest for as long the person arrested is committing
an offense in his presence, or is about to commit an offense or has committed an offense. Such that is the arrest is
affected by a private citizen then that arrest is termed as a citizen’s arrest.
 This is an arrest known as in flagrante delicto where the person arrested is caught red handed in the act of committing a crime;
either he does the act in its consummated stage, in its executory stage or in its attempted stage.
 In this instance, in flagrante delicto arrest it is important or it is imperative that the person making the arrest has actual or
personal knowledge of the commission of the crime. It is either they saw it or he perceives the commission of the offense
through his other senses.
 Perception of a crime through your sense of smell, is that allowed? YES. A case in point is the case of PP v. Claudio, wherein that
case, Claudio boarded a bus. She was bringing with her a buri bag and inside the buri bag was marijuana. Unfortunately for
Claudio, she put her buri bag on her back and right in front of Patrolman Opinion, and Patrolman Opinion is a NARCOM agent.
Opinion was very familiar with the smell of marijuana then he reached inside the buri bag and it was marijuana. On the base of
that, he arrested Claudio. During the trial, Claudio objected the admissibility of the evidence obtained from her contending that it
was the result of an illegal search, because according to her Opinion did not, at the time of the arrest, he did not know that the
bag contained marijuana. SC disagreed. According to SC, perception of the offense need not be through your eyes only. It may
be perceived through your other senses, hearing, smell, sight, taste or touch.
 Under the so called arrest in flagrante delicto, then you can justify the arrest of a person who is said to be committing what is
known to be a continuing offense. Recall the case of Umil v. Ramos, involving the arrest of Dural. Dural was arrested three
(3) days after the commission of the offense for killing 2 patrolmen. He protested to his arrest, contending that he was arrested
three days after the commission of the offense. The SC disagreed because in that case Dural was said to be committing a
continuing offense.
 What offenses are characterized as continuing offenses? Subversion, rebellion, insurrection or any conspiracy or proposal to commit
of these crimes, these are considered to be continuing offenses. Such that when a person is committing a continuing offense
everything then he can be arrested at anytime without need of any warrant of arrest.
 The same can be said of a person who is committing a crime of kidnapping and illegal detention, especially if victim has not yet
been recovered. If the detention is continuing and the person or the culprit may be arrested even without a warrant of arrest.
Recall the case of the Chiong sisters, a guy who turned out to be a state witness was arrested without a warrant. He questioned
the validity of his arrest but SC ruled that he was committing a continuing offense. Until now, the body of the victims have not yet
been recovered.
 May there be a valid warrantless arrest pursuant by mere reliable information? In the case of PP v. Nuevas, Nuevas was validly
arrested because he voluntarily surrendered the bag that he was carrying which contained marijuana. Afterwards, Nuevas pointed
to his colleagues, Din and Inocencio, and on the basis of the tip off or the information relayed to the police authorities by Nuevas,
Din and Inocencio were arrested. The SC then said that the arrest of Din and Inocencio was invalid because in our jurisdiction, a
person cannot be arrested by a mere suspicion.
 Yet take note in the cases of Montilla, Malmstedt, Maspi and Tangliben, the accused also was arrested pursuant to an
information, yet this time around or in those cases the information was given by a civilian informant of the authorities. In the case
of Nuevas, it was Nuevas himself, an accused, who pointed to another accused as malefactors, but in the cases of Montilla,
Malmstedt, Maspi and Tangliben the information was relayed not just by any other person but by an informant of the police
authorities. In those cases, SC invariably held that the warrantless arrest of the accused was valid because there was a tip off
given by an informant and among other things the accused also at the time of their arrest in those cases were acting
suspiciously and far more important there was, in those cases, urgency in the situation in that the accused therein
were either boarding a vehicle, were about to board a vehicle, or had just disembarked from a vehicle. In that context
therefore, we can differentiate the cases of Montilla, Malmstedt, Maspil and Tangliben from the case of Nuevas.
 Yet you take note also in the cases of PP v. Rodriguez and PP v. Mengote because in those cases, there was also a tip off or an
information conveyed to the police authorities. Yet in the cases of Rodriguez and Mengote the tip off was but conveyed through a
telephone call, meaning the informant was not even around at the time of the arrest of the accused.
 The consideration in the cases of Aminnudin and Molina, the informants were at the time of the arrest present with the police
authorities. In those cases, SC held that those arrests were invalid. In the cases of Montilla, Malmstedt, Maspil and Tangliben,
the informants were around yet the arrests were valid, but in the case of Aminnudin and Molina the informants were not around
yet the arrest were declared invalid. In that case of Aminnudin, the police officers had at least 2 days within which to secure a
warrant, yet they did not. In the case of Molina, the officers had 2 months within which to secure a warrant, yet for the reason
one way or another, they did not bother to secure a warrant. In that respect, we need to distinguish the case of Aminnudin vis-a-
vis the cases of Maspil and Montilla because one in the cases of Maspil and Montilla, the police authorities had more or less
sufficient period of time within which to secure a warrant wherein which they did not thus it was declared as valid.
 In the case of Aminnudin, the identity of the accused, the drug courier was known already before the arrest. Also the vessel that
will bring him to Iloilo was already known as well as the time of arrival. But in the case of Maspil where there had 3 days to secure
 a warrant but they did not because the identity of the drug courier was not known, the mode of transportation that would bring
him to a particular place was not also known, much less the date of arrival. Just like in the case of Montilla, SC said that while it
is true that there is sufficient period of time in which the police officers, in the case of Maspil and Montilla, would have secured a
warrant yet it is highly impossible for them to secure a warrant because they did not know where the transaction would take place,
they do not even know to whom the warrant should be addressed, much the place where the commodity would be dropped off.
This is how to distinguish the cases of Aminnudina and Molina on one hand vis a vis the cases of Montilla and Maspil on the other
hand, because in those cases there was sufficient period of time for a warrant but in one case the SC declared the arrest as invalid
and in the other book of cases the SC declared also the warrantless arrest as valid.
 The person making the arrest need not actually see the crime committed. It is enough that he has actual and personal
knowledge of the crime committed. The term “in his presence” is satisfied when he had perceived the crime committed
by his senses. Those taking place within the optical or auditory perception. Includes situation “when one hears the disturbance
created and proceeds at once to the scene”. Requires mens rea (intention to commit the crime) and overt act of an offense. A
person liable for a continuing crime may be arrested at any time.

2. Hot Pursuit
 Here, the arrest made by a law enforcer or a civilian is valid even without a warrant if an offense has just been committed and
that the person making the arrest has probable cause to believe, based on personal knowledge that he acquired of other facts and
circumstances that the person to be arrested is the one who committed the offense.
 Now, in flagrante delicto arrest, I mentioned to you earlier that the person making the arrest has actual personal knowledge of
the commission of the offense, meaning to say that the person making the arrest in in flagrante delicto arrest has perceived the
commission of the offense with his eyes or through his other senses. But in hot pursuit arrest, here it is not necessary that
the person making the arrest has actually witnessed the commission of the offense, he may not have seen the offense,
yet he acquired personal knowledge of the facts and other circumstances of the offense which would imbed probable
cause on his part to believe that the person he is going to arrest is the offender.
 You recall the case of Pp vs. Padilla, 2 officers positioned themselves in the Abacan bridge. They did not actually see the side
swiping incident; they did not actually see Padilla committing the crime involving the balut vendor. The SC then held that they
could well arrest Padilla for the side swiping incident because they may have not actually witnessed the side swiping incident but
they have personally acquired knowledge of facts or other circumstances which made them believe that Padilla was
the offender. There was a report through the radio as relayed through the viper Manarang and they observed that the hood of
the car of Padilla was already dented, the plate number was dangling and matched the plate number that was announced through
the radio. All these circumstances according to SC would impel probable cause that Padilla was the one referred to in the report.
 In the case of PP v. Gerente, 219 SCRA 756, where in that case, a report was relayed to them, and acting on that report, the
police officers went to the crime scene. They recovered the instrument of the crime, they interviewed the witnesses and they
pointed to to Gerente as the culprit. They went to the hospital and saw the body of the victim and 3 hours thereafter, Gerente was
arrested. Gerente said that the arrest was illegal because it was not covered by a warrant. The SC disagreed, nothing that the
police officers may have not witnessed the commission of the crime yet they acquired personal knowledge of other facts and
circumstances which would make up a probable cause on their part to believe that Gerente was the offender.
 Again, in a hot pursuit arrest, the police officer or the civilian who may make the arrest may not have actually witnessed the
commission of the crime yet he acquired other personal knowledge of facts or other circumstances which would make him believe
that the person is the one who is the offender.
 You take not however that in a hot pursuit arrest, there should be a large measure of urgency between the commission
of the crime and the actual arrest of the offender. In other words, the warrantless arrest of the person in a warrantless
arrest must not be too far removed from the commission of the offense.
 Recall the case of Pp vs. del Rosario, he was arrested a day after the commission of the offense. The SC then said that the arrest
was illegal because it was not covered by a warrant. Take not that there was once a gap of 1 day from the time of the commission
of the offense and the arrest of del Rosario, yet SC declared that the arrest was illegal. According to SC, police officers should
have secured a warrant for the arrest of del Rosario.
 In that regard, the ruling in the case of Umil v. Ramos involving the arrest of Nazareno is therefore modified. Recall the case of
Nazareno, he was arrested for murder for 10 days after the commission of the offense yet the SC declared the arrest as valid. The
ruling in the case of Umil v. Ramos is no longer controlling, but there is a peculiar circumstance in the case of Nazareno,
because in the case of Nazareno what was filed therein was a petition for habeas corpus for the release of Nazareno, but before
the SC could decide on the case for habeas corpus the information was already filed in court and the court wherein the case was
filed already issued a commitment order, such made the petition for habeas corpus moot and academic. Again, in hot pursuit
arrest the rule as it is now that the warrantless arrest of a person in a hot pursuit arrest must not be too far removed from the
commission of the offense.

3. Accused is an Escape Prisoner, whether convicted or temporary detention

 The other exceptional circumstance where it is a valid warrantless arrest is when the person arrested has escaped from a penal
institution, where he is serving a final judgment or where he is temporarily detained pending the decision of his case or
where he escaped when he is transferred from one station to another.
 The reason is plainly evident the person is already a fugitive from justice, so you no longer need a warrant of arrest. He can be
arrested at the time even without a warrant of arrest.

4. Other warrantless arrest – Consented Arrest

 Another exceptional circumstance where your warrantless arrest may be declared a valid, although this is not found in the rules,
is when there is a waiver of the right of the person arrested, wherein he waived his right to the legality of the warrantless arrest.
 If you are a victim of a warrantless arrest, do not participate in the arraignment, rather before arraignment you question the
validity of the arrest by filing a motion to quash the information, and your motion to quash the information must be grounded on
sec 3, par c, Rule 117, ROC, you question the jurisdiction of the court over the person of the accused.
 It is only through arrest in criminal cases that the trial court would acquire jurisdiction over the person over the accused. Failing
to file a motion to quash the information before the arraignment would render your right as having been waived. You
file the motion to quash information before arraignment.

Q: How about this practice of the accused in putting up bail for his temporary liberty, would it not amount as a waiver
of right to question the validity of his arrest?

A: NO. Under sec 26, Rule 124, ROC, putting up a bail is no longer considered as a waiver of your right to question the validity of
the arrest.

Search Incidental to a Lawful Arrest

 Once a person is arrested, you could expect that the person will be searched by the arresting officer or by a civilian, that once
there is an arrest, there would be a consequential search.
 Such that if the arrest is illegal, it would normally follow that the consequential search or the search that is predicated
on the preceding arrest would also be declared as illegal.
 So where the arrest or search is illegal, what would happen to the evidence that is illegally confiscated? May that be admitted in
evidence? The rule is that under par 2, sec 3, article 3 is that any evidence obtained in violation of sec 2, art 3 in the 1987
constitution is inadmissible in any purpose and in any proceedings. The rule is that any evidence illegally obtained is
inadmissible in court.
 Such rule applies only if the accused through his lawyer interposed a timely objection to the admission of evidence
illegally obtained, that has to be invoked. You should object once that evidence is admitted during trial otherwise, failure to
object would render that evidence otherwise illegally obtained admissible in court, once the prosecution formally offers the evidence
to the court that is the time that you interpose your objection.

When evidence collected in an unlawful search could be valid

1. Failure to object to the admissibility of the evidence.
2. If the evidence is used not against the person from whom the same was taken, but against the person who perpetrated such illegal
search or arrest.
3. When the search, although illegal, is conducted without the intervention of the state or any of its agents.

 While par 2, sec 3, article 3 ostensibly provides that any evidence obtained in violation of sec 2, article 3 is admissible and for any
purpose and for any proceedings yet there is another instance where that may be admitted in evidence.
 When that evidence, although illegally obtained, is being offered not against the person from whom the same is taken but
against the person making such illegal search or arrest.

Example:
I am illegally searched by a police officer. I offered my objection without a warrant, so no doubt that such is illegal. During trial,
shabu for example, when the shabu is offered against me, I timely interposed my objection and the court that that should be
excluded. After acquittal, suppose that I filed a counter suit against the officer who made such illegal search or arrest. I sued him
for a criminal case on illegal search. Can I utilize that shabu as my evidence against the police officer? YES, because this time
around that evidence is not offered against me but against such person who made the illegal search or arrest.

Under our jurisdiction, there are actually 3 instances under which an evidence, otherwise illegally obtained or confiscated may be
admitted in court. First, failure to object to the admissibility of the evidence. Second, if that is rather used not against the person
from whom the same was taken, but from the person or against the person who perpetrated such illegal search or arrest. Third
instance is when the search although illegal is conducted without the intervention of the state or any of its agents. Just like in the
case of Bongcarawan, so that is the third instance when an evidence otherwise illegally obtained may be admitted in court, when
the search otherwise illegal is conducted without the active participation or intervention of the state or of its agents. Take note of
these 3 instances where an evidence illegally obtained may still be admitted in court.

Remedies against an illegal arrest

 Other than objecting to the evidence otherwise illegally obtained, what remedies do you have against the person making such
arrest or search? If the person making an illegal arrest is a public officer then you can file a counter suit for arbitrary detention
and that is a penalized crime under article 194, RPC and if the person making the illegal arrest is a private citizen then you can
sue him for kidnapping and illegal detention defined under penalized crime under article 267, RPC. These, among other things,
are your remedies.
 It is better to file the counter suit after you are acquitted because once you file it while it is still pending in court, that can be
abated. Your other remedy is if you are detained illegally, it is to file a petition for habeas corpus under rule 102, ROC, or you may
want to file a writ of amparo.
 Take note however that petitions for habeas corpus and amparo, although these are effective remedies, would be rendered
moot and academic once an information of the person illegally detained is already filed in court and once the court
has already issued a commitment order.
 When this happens, you may now shift gears by filing another motion, a motion to quash an information the one that is filed
against you based on sec 3, par c, Rule 117, ROC, you question the jurisdiction of the court. Although by experience, this motion
is usually not granted, yet this will be treated as a continuing objection in the illegality of the arrest.
 In other words, by filing this motion your will not be deemed to have waived already your right to question the legality of the
arrest. You are questioning the jurisdiction over the accused that is highly waivable, that is again if there is failure in the legality
of the arrest.
 So you take note of the remedies available to a person who is illegally arrested, again a criminal case for arbitrary detention,
kidnapping, depending on who initiated the arrest, then habeas corpus, writ of amparo and motion to quash the information
pursuant to sec. 3 (c), Rule 117, ROC, unlawful arrest. Basically, you question that the arrest is illegal. If there are things taken
from you, you can sue for robbery, if there is employment of force, threat or intimidation.

SEARCH

GENERAL RULE: For a search to be valid it needs a search warrant.

Search Warrant
 A search warrant is a court process directing or allowing the law enforcement agencies to search a particular place and confiscate
or seize the items enumerated in the search warrant itself.

Requisites for a valid search warrant:

1. There should be probable cause
2. Such probable cause must be must be determined by the judge or by a judge
3. Such probable cause must be determined after examination under oath of the complainant and the witnesses
4. There should be particularity in the description of the place to be searched and the object or things to be seized

1. There should be probable cause

 What is probable cause in the context of the issuance of a search warrant? Probable cause in a context of a search warrant refers
to such facts and circumstances as would lead a prudent man to believe that an offense has been committed and the
objects sought in connection therewith are in the place described in the search warrant.
 Take note that this element is important such that a search warrant that is issued without probable cause is invalid. Even if a
judge issues a search warrant but there is not probable cause, the search warrant itself is in valid. It does not matter if there is a
warrant issued by the judge because if there is no probable cause for that the search warrant therefore is invalid.
 What would happen if a search warrant is issued authorizing the confiscation of not just one but several items and
there is probable cause in respect to some items, but there is none in respect to others? Should it be voided in its
entirety?
 No. In fact, that is the ruling in the case of PP v. Salanguit, because in such case the search warrant is issued for shabu and for
drug paraphernalia, yet there is no probable cause in so far as search for drug paraphernalia is concerned. The SC said that a
search warrant is severable, meaning to say that the entire warrant is not voided just because some provisions therein are invalid
or that some items therein are ordered to be confiscated without probable cause.
 We just have to disregard the invalid portion of the search warrant. The invalidity of some portions therein will not invalidate
in the whole search warrant by itself. Corollary to the requirement on probable cause is the provision under sec 4, Rule 126, ROC
which mandates that a search warrant must only be issued for one specific offense. It is clear the under sec 4, Rule 126, ROC that
a search warrant should only be issued for one specific offense, such that is a search warrant is issued for two or more
offenses then the search warrant is invalid. It is considered to be a scatter shot warrant.
 A case in point is the case of Stonehill v. Diokno, where the SC declared as invalid the search warrant that was issued for
different offenses like violation of Central Bank circular, violation of tariff and customs code, violation of the internal revenue code
and violation of the RPC. Thus, leading the SC to declare such search warrant us invalid. It would not matter if the offenses therein
are true and subject to probable cause, because the requirement is clear that such should only be issued for one specific offense.
The entire warrant is then voided, because the requirement under sec 4, Rule 126, ROC is violated.
 A similar conclusion was reached in the case of Asian Surety Insurance Company Inc. v. Herrera, where again the SC declared
invalid the search warrant issued for estafa, falsification, tax evation, and insurance fraud. Again it was issued in violation of the
requirement that the search warrant must only be issued for one specific offense.
 Yet we have to take note of the case of Pp vs. Salanguit. Although there was probable cause for shabu, there was none in the
case for the drug paraphernalia, yet the SC said that well we just have to disregard the authority in regards the confiscation of
drug paraphernalia because of course there was no probable cause for that in that the SC did not invalidate the entire warrant.
 But the lawyer of Salanguit was very smart, he argued in the alternative that even assuming that the entire warrant is not voided
in so far as the drug paraphernalia is concerned yet the search warrant was issued in violation of sec 4, Rule 126, ROC to the end
that a search warrant must only be issued to one specific offense. His argument was that there is such crime of illegal possession
of shabu which is a crime distinct and separate from illegal possession of drug paraphernalia.
 To bolster his argument, he cited that illegal possession of shabu is defined as a crime under a separate provision under RA 6425,
whereas illegal possession of drug paraphernalia is like was defined as a crime under a separate provision under RA 6425. The SC
disagreed. According to the SC, while it is true that the crime of illegal possession of shabu is defined as a crime under a separate
provision of RA 6425, in like manner that illegal possession of drug paraphernalia under a separate section thereof, the fact
remains that these crimes are closely related. In fact, they belong to the same species of offense such that they are
penalized under the same law and that was RA 6425. That is rather peculiar, that applies only to situation where
separate crimes are defined as such as defined under one special penal law.
 Such that if there is a search warrant authorizing the confiscation of unlicensed firearm and that also authorizes the confiscation
of ammunitions, then the search warrant is perfectly valid, for they are penalized under the same special law. But when the crime
is issued for murder and at the same time it also covers homicide, then this is violative of sec 4, Rule 126, ROC.

2. Such probable cause must be must be determined by the judge or by a judge

 The second requirement in the issuance of a search warrant is that the search warrant must be issued by a judge. In our discussion,
before on arrest we already knew that a warrant of arrest may be by administrative agencies, such as where there is already a
final finding of a violation of the law.
 Verily, the BID or the commission of immigration and deportation may issue a warrant of arrest for the implementation of a
deportation order or when there is an order of contempt, a warrant of arrest may be issue to the person cited in contempt of an
admin body. The question is, does this rule hold true in so far as the issuance of a search warrant? In other words, may a search
warrant be issued by an administrative agency? NO.
 Do you remember the case of Salazar vs. Achacoso where the secretary of labor issued a search warrant against the person
who is suspected to be carrying out illegal recruitment? According to the SC, Sec 27 of the Labor Code is unconstitutional, because
the rule as it is now is that only a judge of a court of law has the power to issue a search warrant. In other words, while
a warrant of arrest may be issued by administrative bodies, if only to carry out a final finding of a violation of the law. A search
warrant should only be issued by a judge of a court of law. So in that context therefore, we need to distinguish between a
search warrant and a warrant of arrest.

Application for Search Warrant

 Where would you file an application for a search warrant? Because when we speak of arrest, of course before the information
is filed in court, the complaint affidavit must be fist be filed in the office of the prosecutor. How about in the case of a search
warrant? It should be filed directly to the court. Apply to any court as long as it belongs to the hierarchy of courts.
 You take note however in respect to the filing of application for the issuance of a search warrant, we are to be governed by
the provision under sec 2, Rule 126, ROC, there it is provided by way of general rule, that an application for a search
warrant must be filed in any court within whose territorial jurisdiction the crime is committed.
 Take note that MTC courts or RTC of Cebu City may only take cognizance of cases or criminal cases within their respective
territorial jurisdiction. In like manner that Lapu-Lapu courts may only take cognizance of cases within their territorial
jurisdiction. In other words, the Lapu-Lapu courts cannot take cognizance of criminal cases which happened in Cebu City,
because you take note that in criminal cases venue is jurisdictional, unlike in civil cases. Such that as a rule, when a crime
happens in Cebu City the application of search warrant in connection therewith should only be filed within the Cebu City courts
and vice versa.
 However, the same sec 2, Rule 126, ROC provides by way of exception that for compelling reasons, the application for
a search warrant may be filed in any court within the judicial region where the offense is committed or where
the search warrant is to be enforced. Take note that Philippines is divided into different judicial regions not necessarily
on the basis of geographical location. Now, by way of exception and when there is compelling reason, the application for a
search warrant may be filed in any court within the territorial region or judicial region where the offense is committed.
 As a rule, an application for a search warrant that is committed in Cebu City must be filed only in Cebu city courts but by way
of exception the same may be filed in Lapu-Lapu city courts or in the court of Bogo city because this courts in Bogo and Lapu-
Lapu all belong to the 7th judicial region, but that can only be done for compelling reasons.
 Say for example the subject matter of the raid is drug manufacturing, you these people have their eyes and ears on the court,
and they have their moles, such that to avoid a tip off then any such application for search warrant may be filed in
a far flung court if only to avoid leakage in information. So for compelling reasons, the application for search warrant
may be filed in any court within the judicial region where the offense is committed.
 Take note however that when a case is filed in court, and the search warrant is to be issued in connection therewith
then, an application for such search warrant must only be filed in the court where the case is pending. This is in
observance of the rule on primacy of jurisdiction, after all a particular court has already taken cognizance of a particular case.
Take note of sec 2, Rule 126, ROC.
 I would like to invite your attention that there is a circular issued by the SC that is Circular No. 03-8-02, February 15, 2004,
which authorizes the executive judges of RTC in Manila and Quezon city to issue search warrants upon applications to the
PNP, NBI, or ACTAF(?) the same to be enforced in any place in the Philippines, even if the same is to be enforced outside their
respective territorial jurisdiction. But this is allowed only in the following cases; heinous crimes, illegal gambling, illegal
possession of firearms and ammunitions, violation of the comprehensive dangerous drugs act, violation of the
intellectual property code, violation of anti-money laundering law, and violation of tariff and customs code, but
only the executive judges or in their absence the vice-executive judges in Manila and Quezon City are empowered
to issue search warrants which may be enforced even outside their territorial jurisdiction.

3. Such probable cause must be determined after examination under oath of the complainant and the witnesses
 The third requisite attended to the issuance of a search warrant is that the probable cause must be determined by the judge
after examination under oath of the complainant and the witnesses he may produce. This is a requirement under sec 2,
Article 3 of the Constitution, and this requirement is further buttress by sec 5, Rule 126, ROC, which provides and mandates that
indeed judges should examine the applicant and the witnesses in connection to the issuance of the search warrant.
 In our discussion on arrest and citing the case of Soliven vs. Makasiar, the judge, in the issuance of a warrant of arrest, is not
anymore mandated to conduct a personal examination of the complainant. But this rule is different in the issuance of a search
warrant, because under the rule particularly sec 5, Rule 126, ROC, the judge is mandated to conduct a personal
examination of the applicant and his witnesses.
 In fact, under the rules, the judge must ask searching questions and that he should ask probing questions, he should not ask
questions answerable by a yes or no. He should more or less cross examine the applicant and his witnesses before issuing the
search warrant. Under the rules, such examination should be conducted under oath, such that if the applicant is not telling the
truth then he can be prosecuted for perjury and such interrogation must be reduced in writing.
 While the warrant of arrest may be issued without the judge having to conduct and examination of the complainant, yet a search
warrant can never be issued without the judge conducting personal examination of the applicant and his witnesses.
 The rule is very strict, such that in one case, the case of Alvarez v. CFI, our SC succinctly ruled that an applicant for the issuance
of a search warrant should only testify on matters which are within his personal knowledge. In other words, hearsay information
will not suffice.
 In the case of Burgos v. Chief of Staff, the SC declared as invalid the search warrant that was issued on the basis of what was
termed as the evidence gathered by the military unit. The applicant in that case was the military commander, but he was not the
one who gathered the evidence. It was rather his subordinate who supposedly gathered the evidence, yet it was him who applied
for the search warrant. So no doubt, his testimony in respect to the existence of the evidence is considered hearsay.

4. There should be particularity in the description of the place to be searched and the object or things to be seized
 The last requirement in the issuance of the search warrant is that there should be particularity in the description of the place to
be searched. I would like to invite your attention to the case of PP v. CA, you recall the raid of Apartment no. 1 where the address
stated in the search warrant is Abegail store. The SC said that it was invalid, because there was no meeting of the minds
between the applicant and the issuing judge. What the applicants had in mind was Apartment no. 1 but the address stated
in the search warrant was rather Abegail store and the judge issued the search warrant authorizing the search on Abegail store.
There was no particularity in the description of the place in that case, such that the search warrant was declared
invalid by the SC. But in actual practice and only to avoid this kind of problem, normally the authorities in the application of a
search warrant present to the judge the vicinity map or sketch map present the location of the premises sought to be searched.
 In the case of PP v. CA, it was argued by the prosecution that there was a sketch that was submitted, yet it was found out that
that sketch was rather submitted belatedly. In fact, that only came out when the prosecution already filed a motion for
reconsideration on the order of the judge quashing the search warrant. It was rather an attempt to cover up the mistake in the
application of the search warrant.

a. Particularity in the description of the person subject matter thereof

 Another requirement which is subsumed in the 4th requisite is that in the issuance of the search warrant there should be
particularity in the description of the person subject matter thereof. You recall the case of Pp vs. Prescilla del Norte, the
SC said that her arrest was invalid because the person referred to in the search warrant was a certain Ising Diwa and the
person arrested was Priscilla del Norte.
 You take note however of the case of PP vs. Tui Won Chua, because in that case the search warrant was issued against a
certain Timothy Tui, but the person arrested is Tui Won Chua. Unlike in the case of del Norte, the SC affirmed the arrest of
Tui Won Chua as valid, because any such mistake subject matter in the search warrant was however cured by the personal
knowledge on the part of the police officers who enforced the search warrant for they were the same officers who conducted
the same surveillance leading to the issuance of the search warrant. But that was not the circumstance on the case of del
Norte, in fact the police officers did not know the person referred to as Ising Diwa such that they had to employ the help of
the barangay official who pointed to them this person who turned out to be Prescilla del Norte.

b. Particularity describe the objects or things to be searched or to be confiscated

 Another equally important requirement which is subsumed under the 4th requisite for the issuance of the search warrant is
that the search warrant also must particularly describe the objects or things to be searched or to be confiscated.
 The reason for this are (1) to enable the officers enforcing the search warrant to identify the objects to be confiscated thereby
preventing unlawful seizure of things and (2) to deny them any discretion as to what things to be confiscated. Such that if
the things or objects are not particularly described in the search warrant itself then the search warrant may be declared as in
invalid for being a general warrant.
 Therefore, a general warrant is one which does not particularly describe the things or objects subject matter thereof.

Scattershot warrant
 A scatter shot warrant is issued for more than one specific offense, while a general warrant may be issued for one specific
offense yet it does not particularly describe the things or objects subject matter thereof.

 In the case of Stonehill v. Diokno, the SC also nullified the warrant for being a general warrant, because in this case the search
warrant was issued for the confiscation of financial records, vouchers, journals, correspondents, receipts, letters, portfolios,
typewriters and other documents evidencing all business transactions. According to the SC that warrant is defective, because it
authorized the confiscation of all documents pertaining to all business transactions without distinctions as to legitimate or
illegitimate transactions.
 Similarly, in the case of Burgos v. Chief of Staff, the search warrant was also declared as invalid for being a general warrant,
because it authorized the confiscation of subversive materials without specifying what materials are to be considered as subversive.
 Yet in another case of Alvarez v. CFI, the SC however said that when the object or things are incapable of being technically
described then a general description would suffice, because in this case the search warrant for the seizure of books, documents,
receipts and lists, however there was a qualifying clause list as by used of Alvarez in connection with his usurious money lending
transaction which is conducted in violation of the law. Unlike in the case of Diokno which authorizes the confiscation of all
documents evidencing all and any kind of business transactions, even if the same is a legitimate business.
 Assume that the judge issues a search warrant and the search warrant authorized the confiscation of several items listed in
paragraph A and B and the items enumerated under paragraph A are generally described although the same may be physically
described, but the items in paragraph B are particularly described. Should the entire warrant be voided? No.
 Recall the case of Microsoft vs. Maxicorp, according to the SC, only those items that are but generally described are to be
considered invalid, yet the remainder thereof will have to remain valid. Indeed, as what was ruled in the case of Microsoft and
Salanguit, a search warrant therefore is severable, such that when there is a portion thereof that is invalid, then it will not
render the entire warrant invalid, so the remainder which is not affected thereby would have to be enforced.

Q: What are the things that may be ordered confiscated?

A: Items which are the subject matter of the offense or anything that may be used in the commission of the offense or is intended
to be used in the commission of the offense may also be ordered confiscated. These are the subject of the offense, stolen or
embezzled goods, as well as the instrument of the commission of the offense.

Enforcement of a search warrant

 It has to be sent to the law enforcement agencies for their enforcement. In fact, it has to be enforced, normally, by the
applicants for the issuance thereof.
 Take note that in the enforcement of a search warrant and under sec 7, Rule 126, ROC, the officers enforcing the search
warrant may likewise employ reasonable force. In that under the Rules of Court, particularly sec 7, Rule 126, they are
allowed to break open a window or a door if only to gain entrance of the premises or to break out there from.
 Take note also that under sec 8, Rule 126, ROC, if a search is to be conducted in a house or a room thereof or any
other premises that the lawful occupant must be present in each and every face of the search or in his absence,
 a member of his family, or in the absence of the latter then such searched must be witnessed by two (2) persons
of sufficient age and discretion and who must be residents of the same locality. The occupant of the house must
be present at every stage of the search, or else it would invalidate such search. The reason for this requirement is
to assure or see to it that there is no planting of evidence.
 Take note also under sec 9, Rule 126, ROC, is that a search warrant is generally enforced during day time, except
where in the search warrant the judge directs or allows that the same may be enforced during night time. The
other rule under sec 10, Rule 126, ROC, is that a search warrant is valid only for 10 days reckoned from the date of the
issuance thereof, as appearing in the search warrant itself there after the search warrant ceases to be valid.

Warrantless Search
 The general rule, for a search to be valid it has to be covered by a search warrant yet that particular rule admits of some exceptions.

Exceptions to the rule that no search can be conducted unless a search warrant is first secured:
1. Consented searches
2. Stop and frisk search
3. Search incidental to a lawful arrest
4. Plain-view doctrine
5. Customs search conducted on vessels and aircrafts
6. Search of moving vehicles
7. Inspection of building or premises for the enforcement of fire, sanitary, and/or building regulation
8. Search under emergency instances

1. Consented searches
 One such exceptional circumstance where they may be a valid warrantless search is in the case of a (1) Consented search, meaning
to say that the person concerned has none the less given his consent to be searched upon without a search warrant. Take note
however that for such consent to be valid it should be given unequivocally, expressly, voluntarily and intelligently.
 Recall the case of Caballes vs. CA, it was argued by the prosecution that Caballes has given his consent because he did not
interpose any objection and that according to the prosecution, according to the police officers, Caballes did not impose tenacious
objections, rather he kept silent. The SC said that mere silence is not enough, mere passivity is not enough. Consent in
the concept of a warrantless search has to be given freely, intelligently, and for more important expressly.
 In that context, recall also the case of Pp vs. Susan Canton, in the plane ticket, there is that provision or stipulation pursuant to
RA 6235 whereby the airline passenger is deemed to have given his or her consent to being searched upon at the terminal
otherwise he or she may be refused embarkation into the aircraft. Consent will validate and in otherwise invalid search or even if
the search is conducted without a warrant if the person concerned has given his consent thereto then it becomes valid already.
Take note however that for such consent to a warrantless search to be valid such consent must only be given by the person who
is the holder of such right. The waiver of right against unreasonable search or giving consent to an otherwise warrantless search
may only be given by the holder of the particular right.
 A case in point is the case of Damaso, 212 SCRA 457, where the elements of the defunct Philippine Constabulary conducted a
warrantless search on the house of Damaso. At the time of the search Damaso was not around, such that the PC sought the
permission of the person there who turned out to be a mere house helper, so she gave her consent for the elements of the PC to
conduct a search on the house of Damaso. After the search, it was found out that Damaso had in his possession subversive
materials. In the ensuing criminal prosecution the contention of Damaso claim that the search was illegal, but the prosecution
countered that the consent was given by the helper of Damaso. SC sided with Damaso that according to SC that any such consent
was invalid because it was given by the person who was not the holder of the right. If at all it should have been Damaso who
should have given his consent to such warrantless search.
 But the ruling in a different and much earlier case in Lopez v. Collector of Customs, 68 SCRA 320, was quite different. It was
quite disturbing. There was a warrantless searched conducted in a hotel room occupied by Lopez. At the time of the warrantless
search, Lopez was not around and the person present was the manicurist. So the law enforcers sought the permission of the
manicurist for them to be allowed entry into the room and for them to conduct a search thereon. In the ensuing criminal
prosecution, Lopez objected to the validity of the search, yet in this case our SC said that it was enough that a consent was given
for the law officers to conduct such warrantless search. SUPERSEDED BY DAMASO CASE. For such consent to be valid, such
consent should be given by the holder of that right. If the officers insisted, then such is may be invalid for it will not be
covered by the exceptional circumstance.

2. Stop and frisk search

 Another exceptional circumstance where there may be a valid warrantless search is in the event of what is known as a stop and
frisk situation.
 Under this situation, a police officer is allowed to stop a person on the street, interrogate that person and search him
for concealed weapons if the police officer observes that the other person is rather acting suspiciously, such that
there is probable cause on his part to believe that criminality is afoot.
 Take note that based on jurisprudence, stop and frisk is only applied to a situation where the one conducting the search is a
police officer and it is important to consider that for this situation to be allowed the person to be searched must be acting
suspiciously.
 Before conducting such warrantless search, the police officer is mandated to introduce himself first as a person in
authority and ask questions, and if he is not satisfied with the answers then that is the time that he may conduct a
warrantless search.
 The purpose of allowing this is (1) for the safety of the police officer, because we do not know if the person is armed and he may
use that against the police officer, (2) is to prevent the commission of the offense, to prevent criminality.
 Recall the case of Solayao, Solayao was drunk and he was wearing a camouflage and when his companions were approached by
the PC officer some of his companions fled. The SC then said that the search conducted on Solayao was valid. It was rather a stop
and frisk situation.
 The same ruling was had in the case of Posadas, the one who was bringing with him a buri bag then the police officers approached
him and introduced themselves and he attempted to flee. Such that the police officers thought that he was doing something illegal.
SC also declared the search to be valid even if the same is done without a search warrant. It was rather akin to a stop and frisk
situation.
 But the stop and frisk doctrine was not however applied in the case of Malacat. The Muslim-looking guy whose eyes were rapidly
moving. The SC did not apply the stop and frisk doctrine. According to SC it is highly improbable for police officer Yu to have
observed the movement of the eyes of Malacat, after all the police officer was nowhere near Malacat and it was already about
night time.
 The same holds true in the case of Mengote, he was holding his abdomen. He was looking from side to side. SC said that there
was nothing wrong with that. More so in the case of Mengote, the SC did not advance that argument.

Atty. Galeon’s obiter dictum:

 Had the prosecution advanced the stop and frisk doctrine in the case of Mengote, probably the decision would have been
different.
 I’d like to underscore the fact that in a stop and frisk situation which resulted in a search, normally what should precede is
the fact of search before the fact of arrest. It is not the other way around. Stop and frisk situation is rather an exception to
the on search, in that here what normally precedes is the search before there may be a warrantless arrest.
3. Search incidental to a lawful arrest
 The third exceptional circumstance under which there may be a valid warrantless search is a search incidental to a valid arrest.
 The rule is where a person is validly arrested, then the person may be searched upon for concealed weapons or for
anything which may be used as proof of his commission of the offense. So if a person is legally arrested you could expect
that he will be searched by the apprehending officer or even civilians.
 The purpose of which is to find out if he has concealed weapons which he may use against the person effecting the
arrest or to recover something that may be used as proof of his commission of the offense.
 Take note however as was ruled in the case of Espano v. CA, this search incidental to a valid arrest is normally limited only to
the body of the person arrested and the immediate surrounding or vicinity within his immediate control.
 Otherwise stated, the search incidental to a valid arrest should not be conducted at a place which is well beyond the
control of the person arrested. In case of Espano, he was arrested on the street, pursuant to a test buy operation, yet aside
from the search conducted upon this person yielding to the recovery of 2 sachets of marijuana, a search was conducted in this
house, and ruling as to the search conducted in his house was illegal it was not considered as a search incidental to the arrest at
that time of his arrest, Espano had no control over his house. He was arrested on the streets yet a search was conducted in his
house.
 Take note that a search incidental to a valid arrest what normally precedes is the fact of the arrest and what follows is the fact of
the search or at the very least the search should be done simultaneous with or contemporaneous with the arrest. So a search
conducted incidental to an arrest it is imperative that a search should be done after or at the very least contemporaneous with the
fact of the arrest, but it can never be conducted before the fact of the arrest. So this is the distinction between a stop and frisk
situation vis-a-vis a search incidental to an arrest as was clarified in the case of Malacat.
 Take note further that a search incidental to a valid arrest it is imperative that the preceding arrest must be valid for the search
to considered also as valid. Conversely, if the preceding arrest is invalid then the consequential search is likewise invalid.
The preceding arrest is valid if such is covered by a warrant of arrest or it may be a case of a permissible warrantless arrest.
 Recall the case of Figueroa, when the police officers went to his house for his warrantless arrest and when he was arrested, they
conducted a search on Figueroa that may fall in a search incidental to a valid arrest. In the case of Espano, he was arrested
without a warrant pursuant a buy bust operation the arrest was valid such that the search conducted in this person which lead to
the discovery of 2 sachets of marijuana was considered also as valid, because the preceding arrest even if the same was without
a warrant was decreed to be valid.

4. Plain-view doctrine
 Another exceptional circumstance where there may be a valid warrantless search is in the event known as confiscation of things
or items in plain view, the plain view doctrine.
 Here, incriminating evidence which is in the so called plain view of the police officer who has the right to be in the position to have
that view may be confiscated and admitted in evidence. It is important that there may be inadvertent discovery of the incriminating
evidence and the illegality of the item must be readily apparent.
 So the requisites for the application of the doctrine are as follows; (1) there should be a valid intrusion, meaning the person must
be in the position to have that view (2) there should be inadvertent discovery of that illegal thing or object, meaning that there
should not be any conscious effort to particularly search for or look for that illegal thing, (3) the item must be readily illegal, (4)
if you may want to add, is that the plain view would authorize the outright confiscation of the item.

Requisites of plain view doctrine:

a. There should be a valid intrusion
b. There should be inadvertent discovery of that illegal thing or object
c. The item must be readily illegal
d. Would authorize the outright confiscation of the item

a. There should be a valid intrusion

 Recall the case of Figueroa, where the police officers were serving for the arrest of Figueroa, when he was arrested, they
noticed inadvertently that there are packs of marijuana placed on top of the table. The same was confiscated and the SC said
that it was valid, because those items fell within the plain view of the arresting officers.

Situation:
 Intrusion may be valid even without a warrant. Let’s say a police officer is pursuing a snatcher, the snatcher went inside this
house the police officer followed only to arrest this person, then once inside the police officer observed that there are marijuana
placed on the table.
 Can the police officer confiscate the marijuana? But he went inside the house without a warrant? Is the intrusion valid? YES.
In other words, when we speak of valid intrusion, it does not matter if such intrusion is with or without a warrant. What
matters most is that the same is valid.

b. There should be inadvertent discovery of that illegal thing or object

 The other requisite is that there should be inadvertent discovery of the illegal item. Meaning to say, there should be no
conscious effort to locate or look for that particular item.
 Recall the case of Salanguit, the search warrant was for shabu and drug paraphernalia and in the course of the enforcement
of the search warrant the police officers discovered marijuana. What was the ruling in respect to marijuana? According to the
SC, the marijuana was inadmissible, because it was not shown in the case as to when marijuana was discovered. As that the
SC was of the view that it was discovered after the discovery of the shabu, after all in the application of the search warrant
the witness testified that he knew for a fact as to where shabu was placed inside the cabinet.
 In that premise, the SC was of the view that marijuana was only confiscated after the discovery of the shabu. The SC did not
apply the plain view doctrine because it would appear that there was a conscious effort a further search when the rule is that
when a valid portion of a warrant had already been executed no further search shall thereafter be allowed. More so the
marijuana was not readily apparent for it was wrapped in a newspaper; it would have been different if such was wrapped in
a transparent container.

Situation:
 What if the marijuana which was wrapped in newsprint was discovered in the course of looking for shabu? Assume that
marijuana which was wrapped in newsprint was placed in the cabinet where the shabu was located and only to find out what
was inside the package the police officer had to cut it open. Would that be admissible? Would you abide the plain view doctrine?
 YES. This time around you can apply the plain view doctrine because it was found in the course of looking for shabu. Although
there was an effort at slicing the container such was precisely done if only to discover what was inside it and the police officer
in doing that did not expect what was really inside the package. Their purpose in opening that is for the purpose of looking
for shabu.

 In the case of PP v. Musa, 217 SCRA 597, where in this case Musa was arrested pursuant to a test buy operation but such was
conducted inside his living room and after the test buy Musa was placed under arrest. The police officer tried to locate the mark
money, but such was not found. In the search for looking for the marked money, the police officer conducted a search particularly
in the entire house of Musa including the kitchen and in the course thereof, one police officer noticed that there was a package
and when it was opened, it contained marijuana. SC decreed that the marijuana was inadmissible in evidence. They did not apply
the plain view doctrine because it was not apparent what was inside the package. There was an active search that was conducted.
 More so the search was conducted after the arrest of Musa. Search incidental to an arrest cannot also be applied because the
kitchen at that time was beyond the ambit of control of Musa, because he was arrested right in his living room and also the
transaction.

5. Customs search conducted on vessels and aircrafts

 Another exceptional circumstance where there may be a valid warrantless search is when there is a customs search conducted on
vessels like ocean going vessels and aircrafts. The reason is plain and evident, because such are equipped with powerful engines
which could facilitate their escape. They can easily elude arrest or pursuit. In this situation the procurement of a search warrant
would be futile. There is urgency in the situation. The search conducted on pump boats for the enforcement of fisheries laws would
also be considered as valid. The case of Aminnudin is different because he was not searched while he was still in the vessel, he
was already disembarking.

6. Search of moving vehicles

 Another exceptional circumstance where a warrantless search may be decreed as valid is when a search is conducted at
checkpoints. Recall the case of Libnao, there was a checkpoint and it was decreed as valid. In the case of Caballes, the case was
decreed invalid because in the first place the police officers were not conducting a checkpoint.
 They were merely on a roving patrol. They chanced upon the jeepney of Caballes, flagged it down and conducted a warrantless
search. It was decreed as illegal. The reason for this is just like vessels, land based vehicles are also equip with powerful engines
that they can possibly elude arrest.
 In the case of Valmonte v. De Villa, 178 SCRA 211, the SC already ordained that a check point is valid for as long as it is impelled
in the existence of public order and for as long as it is conducted in a manner that is least intrusive to motorist. Take note that as
was ruled in the case of Caballes the mere mobility of this vehicle will not authorize the police officers just to conduct and
indiscriminate search. For a checkpoint to be valid, it has to be impelled with probable cause, dictated upon existence of public
order and should be conducted at a definite place. On the rules of engagement, for a valid checkpoint to be had, it should be
manned by uniformed personnel, there should be a proper signage and there should be a patrol car that is properly marked.
 Generally, the search that is permissible in check points are nothing but a peripheral or visual search. In other words,
what may be allowed is the flashing of flashlights without necessarily requesting the motorist to disembark in the vehicle. They
are not allowed to direct to open or close the spectacles.
 They are not allowed to conduct body frisking. What they could do is look through the window, have it opened, but are
not allowed to get inside the vehicle. If the vehicle is parked and there is a curtain, they are allowed to open the curtain but
not go inside the vehicle such was permitted in one case. Body frisking is no longer a peripheral search.
 However, there are also instances where a thorough search may be conducted. At check point, a thorough search may be
conducted if there is already probable cause on the part of the officers to believe that the motorist is a criminal
offender. And based on jurisprudence, probable cause at check points would take in the form of a tip off or advance information.

Situation:
 Assume that there is a nearby shot out in the vicinity of San Carlos, a riding in tandem, and then it was relayed through a
radio that the malefactors were riding on a pink motorbike and they are wearing black jackets with the logo of SpongeBob
and Patrick. So there is a checkpoint then there is this motorcycle resembling the one that was reported. On the situation, do
you think that police officers are not allowed to conduct a thorough search? NO, because there is already probable cause to
believe that the motorist is a criminal offender.

 Recall the case of Padilla, there was a tip off. According to SC, even is Padilla was searched that would have been valid, because
there was already a tip off and there was already a checkpoint.
 In the case of Libnao, there was already advance information by the civilian informant, a checkpoint was conducted and Libnao
was thoroughly searched wherein the bag of Libnao was opened. The SC said that it was perfectly valid. That is why I like to
believe that the case of Malmstedt, Montilla and Maspil could be well justified to be falling under this exceptional circumstance
because in those cases checkpoints were held. In those cases, they were already advance information which would make up a
probable cause to believe that the one riding on the vehicle was a criminal offender. That is why I don’t subscribe in the ruling
there in where the SC said that the search there was valid because it was incidental to a valid arrest, because the search was done
first.

7. Inspection of building or premises for the enforcement of fire, sanitary, and/or building regulation
 Another exceptional circumstance where there may be a valid warrantless search is when there is an inspection conducted on
buildings for the enforcement of fire, sanitary and building regulations.

8. Search under emergency instances

 The last exceptional circumstance where there may be a valid warrantless search is when the search in conducted in exigent or
emergency situations.
 Assume for example that there is a nationwide coup de etat or even in Manila and the courts there are not functioning. Can the
government force conduct searches in the course of hunting down offenders, without a warrant? Is that allowed? YES because in
the first place there is no court that is open.
 A case in point a case of PP v. Degrasya, 233 SCRA 716, wherein at the height of the coup de etat during the time of Aquino the
government forces conducted a raid or a search without a warrant on __ office. And in the course of such it was found out that
there were unlicensed firearms and ammunitions were stored in that place. SC said that the warrantless search conducted in __
office was valid because it was done under exigent and emergency situation because at the height of a coup de etat.

Exception to a Valid Warrantless Search

1. Consented search
2. Stop and frisk
3. Search incidental to a valid arrest
4. Plain view
5. Customs search
6. Aircraft, vessel, checkpoints
7. Inspections of building for the inspection of fire, sanitary and building regulations
8. Search under exigent and emergency situations

Admissibility of evidence from illegal searches

 Normally, when searches are conducted and things are recovered thereby, these things will be presented as evidence to the crime
committed. But what would happen if the search is illegal? May the items illegally committed be admissible in evidence?
 Well, the rule as provided for under sec 2 Article 3 is that any evidence illegally obtained is inadmissible for any purpose and for
any proceedings.
 For this exclusionary rule to apply, you have to invoke this particular provision. In other words, there is a need for you or the
accused to interpose and objection the moment the incriminating evidence is already being formally offered in court.
 In the course of the trial the prosecution will present testimonial evidence, witnesses to testify on the facts and the evidence will
be presented for formality purposes. You interpose your objection if such is formally offered in evidence and formal offering of
evidence, normally follows after testimonial evidence.
 If you fail to interpose an objection to the formal offer of exhibits, then such will be admissible in court. The
exclusionary rule under sec 2 Article 3 will not automatically be applied in such case, it should be invoked.
 While sec 2 Article 3 excludes such inadmissible evidence, yet it can still be applied if the evidence is offered not against
the person from whom the same is taken but to the person who conducted such illegal search or arrest.

Instances where illegally admitted evidence may be admitted in court

1. When there is failure in invoking your right against unlawful search or arrest,
2. When the same is issued not against the person from whom the same is taken but to the person who conducted the illegal arrest
or search,
3. When the search is done without the active intervention of the state.

Remedies in illegal searches

 You may want to file a case for violation of domicile under Article 128, RPC; or
 When the search is done pursuant to a warrant that is rather illegally procured you can file a case under Article 129, RPC, penalizing
the procurement of a search warrant illegally; and
 on top of the criminal cases you may want to file a motion to quash the search warrant.
 You may want to file also a motion to suppress the evidence illegally obtained but under observing the omnibus motion rule it is
better for you to file an omnibus motion. An omnibus motion is first to quash the search warrant and the second prayer is to
suppress the evidence illegally obtained. Before trial you may already file this motion to quash the search warrant and motion to
suppress the evidence illegally obtained.
 Where would you file such omnibus motion? As a rule, if no case has not yet been filed in connection with the enforcement
of the search warrant, you file the omnibus motion with the issuing court, but if a case has already been filed in
another court in connection with the raid that was conducted then you file such motion in the court where the case
is already filed or pending.
 Also, if you think the judge who issued the search warrant acted capriciously, then you can file a petition for certiorari under Rule
65, ROC, alleging that the judge acted with grave abuse of discretion. Just allege that the judge acted without authority.
 Your other remedy if the motion of quash the search warrant and suppress the evidence is not granted and a trial ensued is to
interpose your objection the moment the inadmissible evidence is offered in court.
 Take note as was rule in the case of Nuevas, even if you failed to question the illegality of your arrest you are not
precluded from objecting to the admission of the evidence illegally obtained.