MALVERSATION REPUBLIC ACT NO.

1060 duly authorized officer, shall be prima facie evidence that he has put
such missing funds or property to personal uses."
REPUBLIC ACT NO. 1060 - AN ACT INCREASING THE PENALTY
FOR THE CRIME OF MALVERSATION OF PUBLIC FUNDS OR Sec. 2. This Act shall take effect upon its approval.cralaw
PROPERTY, BY AMENDING ARTICLE TWO HUNDRED
SEVENTEEN OF THE REVISED PENAL CODE Approved: June 12, 1954

Section 1. Article two hundred seventeen of the Revised Penal

Code is amended to read as follows:
Malversation through negligence
"Art. 217. Malversation of public funds or property. — Presumption
of malversation. — Any public officer who, by reason of the duties of BY PERSIDA ACOSTA JANUARY 16, 2018
his office, is accountable for public funds or property, shall appropriate Dear PAO,
the same, or shall take or misappropriate shall consent, or through
abandonment or negligence, shall permit any other person to take My friend was recently hired as a payroll employee of a government
such public funds or property, wholly or partially, or shall otherwise be agency. She was asked to deposit a certain amount for the agency.
guilty of the misappropriation or malversation of such funds or Since she knew the cashier of the bank that day as they were college
property, shall suffer: classmates, she left the money with the cashier. As she was about to
go out of the bank to buy food, the bank manager who saw what she
"1. The penalty of prision correccional in its medium and maximum did called her attention and asked to wait for the completion of her
periods, if the amount involved in the misappropriation or malversation transaction before leaving the bank premises. Being new, she did not
does not exceed two hundred pesos.cralaw think that there was anything wrong with what she did. The manager
"2. The penalty of prision mayor in its minimum and medium told her that she can be held liable for malversation of public funds if
periods, if the amount involved is more than two hundred pesos but she is shown to be remiss in her job. Is that true even if she did not
does not exceed six thousand pesos. take any money for her personal use? Please advise me on this
matter.
"3. The penalty of prision mayor in its maximum period to reclusion
temporal in its minimum period, if the amount involved is more than Ms. Libra
six thousand pesos but is less than twelve thousand pesos. Dear Ms. Libra,
"4. The penalty of reclusion temporal in its medium and maximum Malversation of public funds is a crime punishable under our law. It is
periods, if the amount involved is more than twelve thousand pesos provided under Article 217 of the Revised Penal Code, as recently
but is less than twenty-two thousand pesos. If the amount exceeds amended by Republic Act (RA) 10951t:
the latter, the penalty shall be reclusion temporal in its maximum
period to reclusion perpetua.cralaw “Any public officer who, by reason of the duties of his office, is
accountable for public funds or property, shall appropriate the same or
"In all cases, persons guilty of malversation shall also suffer the shall take or misappropriate or shall consent, through abandonment or
penalty of perpetual special disqualification and a fine equal to the negligence, shall permit any other person to take such public funds or
amount of the funds malversed or equal to the total value of the property, wholly or partially, or shall otherwise be guilty of the
property embezzled.cralaw misappropriation or malversation of such funds or property x x x
"The failure of a public officer to have duly forthcoming any public xxx
funds or property with which he is chargeable, upon demand by any
The failure of a public officer to have duly forthcoming any public person to take the money. And this is still malversation under Article
funds or property with which he is chargeable, upon demand by any 217.
duly authorized officer, shall be prima facie evidence that he has put
such missing funds or property to personal uses.” Said ruling was, in fact, duly reiterated by the Sandiganbayan in its
decision, thus:
Taking into account the foregoing legal provision, the following
elements must be present in order for the crime of malversation to x x x As consistently ruled by jurisprudence, a public officer may be
exist:(a) The offender is a public officer; (b) He had the custody or held liable for malversation even if he does not use public property or
control of funds or property by reason of the duties of his office; (c) funds under his custody for his personal benefit, but consents to the
Those funds or property were public funds or property for which he taking thereof by another person, or, through abandonment or
was accountable; (d) He appropriated, took, misappropriated or negligence, permitted such taking. The accused, by her negligence,
consented or, through abandonment or negligence, permitted another simply created the opportunity for the misappropriation. Even her
person to take them (The Revised Penal Code, Criminal Law, Book II, justification that her deposits, which were not machine-validated, were
Justice Luis Reyes, Sixteenth Edition, 2006, p. 400). nonetheless acknowledged by the bank cannot fortify her defense. On
the contrary, it all the more emphasizes her propensity for negligence
Corollary, for your friend to be held liable for the crime of malversation each time that she accepted deposit slips, which were not machine-
of public funds, we believe that it should not only be shown that she validated, her only proof of receipt of her deposits” (Emphasis
was remiss in her job. Rather, it must be clearly shown that she is a supplied).
public officer who, by reason of the duties of her position, has/had
custody or control of the subject public funds and, even if there is no We hope that we were able to answer your queries. Please be
proof that she misappropriated such funds for her personal uses that reminded that this advice is based solely on the facts you have
she consented or, through negligence, permitted another person to narrated and our appreciation of the same. Our opinion may vary
take such public funds. If she does not have such public funds in her when other facts are changed or elaborated.
possession when the same is demanded from her and she cannot
offer a satisfactory explanation, then she is presumed to have placed
such missing funds to her personal use pursuant to the last paragraph The elements of malversation of public funds are:
of Article 217 of the above-mentioned law.
that the offender is a public officer;
The Supreme Court through Associate Justice Diosdado Peralta, in its
recent ruling in Hernan vs. Sandiganbayan (G. R. No. 217874, that he had the custody or control of funds or property by reason of
December 5, 2017), elucidated: the duties of his office;
“The court quotes, with approval, the trial court’s ruling, viz.: that those funds or property were public funds or property for which he
was accountable; and
Even if the claim of Hernan, i.e., that she actually left the amount of
P11,300.00 and the corresponding deposit slip with the Bank Teller that he appropriated, took, misappropriated or consented or, through
Ngaosi and she came back to retrieve the deposit slip later, is to be abandonment or negligence, permitted another person to take
believed and then it came out that the said P11,300.00 was not them.49
credited to the account of DoTC [Department of Transportation and
Communications] with the Land Bank and was in fact missing, still There is no dispute on the existence of the first three elements;
accused Hernan should be convicted of malversation because in this petitioner admitted having received the cash advances for which he is
latter situation she permits through inexcusable negligence another accountable. As to the element of misappropriation, indeed petitioner
failed to rebut the legal presumption that he had misappropriated the
said public funds to his personal use, notwithstanding his officer, (b) he has custody or control of the funds or property by
unsubstantiated claim that he has in his possession liquidation reason of the duties of his office, ( c) the funds or property are public
documents. The SB therefore committed neither reversible error nor funds or property for which he is accountable, and, most importantly,
grave abuse of discretion in convicting the petitioner of malversation (d) he has appropriated, taken, misappropriated or consented, or,
for failure to explain or account for his cash shortage by any through abandonment or negligence, permitted another person to take
liquidation or supporting documents. As this Court similarly ruled in them. Article 217 of the Revised Penal Code pertinently provides as
one case50: follows: x x x."

In the crime of malversation, all that is necessary for conviction is ARTICLE 217. Malversation of public funds or property - Presumption
sufficient proof that the accountable officer had received public funds, of malversation. - Any public officer who, by reason of the duties of his
that he did not have them in his possession when demand therefor office, is accountable for public funds or property, shall appropriate
was made, and that he could not satisfactorily explain his failure to do the same, or shall take or misappropriate or shall consent, or through
so. Direct evidence of personal misappropriation by the accused is abandonment or negligence, shall permit any other person to take
hardly necessary as long as the accused cannot explain satisfactorily such public funds or property, wholly or partially, or shall otherwise be
the shortage in his accounts. guilty of the misappropriation or malversation of such funds or
property, shall suffer: xx xx 4.
In convicting petitioner, the Sandiganbayan cites the presumption in
Article 217, supra, of the Revised Penal Code, i.e., the failure of a The penalty of reclusion temporal in its medium and maximum
public officer to have duly forthcoming any public funds or property periods, if the amount involved is more than 12,000 pesos but is less
with which he is chargeable, upon demand by any duly authorized than 22,000 pesos. If the amount exceeds the latter, the penalty shall
officer, is prima facie evidence that he has put such missing fund or be reclusion temporal in its maximum period to reclusion perpetua.
property to personal uses. The presumption is, of course, rebuttable.
Accordingly, if the accused is able to present adequate evidence that In all cases, persons guilty of malversation shall also suffer the
can nullify any likelihood that he had put the funds or property to penalty of perpetual special disqualification and a fine equal to the
personal use, then that presumption would be at an end and the prima amount of the funds malversed or equal to the total value of the
facie case is effectively negated. This Court has repeatedly said that property embezzled.
when the absence of funds is not due to the personal use thereof by
the accused, the presumption is completely destroyed; in fact, the The failure of a public officer to have duly forthcoming any public
presumption is never deemed to have existed at all. In this case, funds or property with which he is chargeable, upon demand by any
however, petitioner failed to overcome this prima facie evidence of duly authorized officer, shall be prima facie evidence that he has put
guilt. such missing funds or property to personal uses.

See - 211543.pdf

"x x x.

Malversation may be committed by appropriating public funds or

property; by taking or misappropriating the same; by consenting, or
through abandonment or negligence, by permitting any other person
to take such public funds or property; or by being otherwise guilty of
the misappropriation or malversation of such funds or property. 29 For
a prosecution of the crime to prosper, concurrence of the following
elements must be satisfactorily proved: (a) the offender is a public
WARRANTLESS ARREST Published 07 December 2018, The Daily The second situation is often described as the “hot pursuit” arrest. For
Tribune this rule to apply, it is required that: (a) an offense has just been
committed; and (b), the arresting officer has probable cause to believe
It is not uncommon to either read or hear that persons were arrested based on personal knowledge of facts or circumstances that the
without any court-issued arrest warrant. These news reports would person to be arrested has committed it. (Pestilos vs. Generoso, G.R.
normally generate questions such as, “Is this legal?” “Do our laws No. 182601, 10 November 2014). Law enforcers need not personally
permit warrantless arrest of persons?” The answer to this question is witness the commission of a crime, but they must have personal
a “yes” but subject to well-defined limitations and requisites. knowledge of facts and circumstances indicating that the person
sought to be arrested committed it. (Veridiano vs. People, G.R. No.
Arrest is “the taking of a person into custody in order that he may be 200370, 07 June 2017) Also, there must be no appreciable lapse of
bound to answer for the commission of an offense.” (Section 1, Rule time between the arrest and the commission of the crime. Otherwise,
113, Revised Rules on Criminal Procedure). As a rule, before a a warrant of arrest must be secured.
person may be arrested, courts must first issue a warrant of arrest;
otherwise, an arrest will be considered as illegal. However, awaiting The third kind of warrantless arrest is self-explanatory. Necessarily,
the issuance of a warrant of arrest sometimes renders ineffective the an escapee must be brought back to the prison or in the place where
arrest of the perpetrators of criminal offenses. Thus, our laws he is serving sentence without any warrant of arrest to be issued
enumerate permissible instances authorizing arrest of persons without again by the court.
any warrant issued by our courts.
Note that the law authorizes a police officer or even an ordinary
Section 5, Rule 113 of the Revised Rules on Criminal Procedure citizen to arrest offenders only if the latter are committing or have just
provides that “a peace officer or a private person may, without a committed a crime. (Posadas vs. Ombudsman, G.R. No. 131492, 29
warrant, arrest a person: September 2000).
(a) When, in his presence, the person to be arrested has committed, Should an arrest be made not in accordance with the above rules, or
is actually committing, or is attempting to commit an offense; otherwise put, if the arrest is not lawfully warranted, such
apprehension will be declared illegal, and the arresting officers may
(b) When an offense has just been committed, and he has probable be prosecuted for the crime of Arbitrary Detention under Article 124 of
cause to believe based on personal knowledge of facts or the Revised Penal Code, which penalizes any public officer or
circumstances that the person to be arrested has committed it; and employee who, without legal grounds, detains a person. This is in
(c) When the person to be arrested is a prisoner who has escaped addition to such other crimes or offenses that may be committed in
from a penal establishment or place where he is serving final the course of the illegal apprehension and detention.
judgment or is temporarily confined while his case is pending, or has From the moment the arrested person is brought in the custody of the
escaped while being transferred from one confinement to another.” law, he must be afforded his rights under the law. Under Section 12,
The first situation refers to “in flagrante delicto” arrest. Under this rule, Article III of the present Constitution, “any person under investigation
it must be shown that: (a) the person to be arrested must execute an for the commission of an offense shall have the right to be informed of
overt act indicating he has just committed, is actually committing, or is his right to remain silent and to have competent and independent
attempting to commit a crime; and (b) such overt act is done in the counsel preferably of his own choice. If the person cannot afford the
presence or within the view of the arresting officer (Valdez vs. People, services of counsel, he must be provided with one. These rights
G.R. No. 170180, 23 November 2007). Thus, if a person is caught in cannot be waived except in writing and in the presence of counsel.” It
the act of stealing money from a sari-sari store, he may be is provided further that “no torture, force, violence, threat, intimidation,
immediately arrested without any warrant. or any other means which vitiate the free will shall be used against
him. Secret detention places, solitary, incommunicado, or other similar judgment or is temporarily confined while his case is pending, or has
forms of detention are prohibited.” escaped while being transferred from one confinement to another.

Violation of the foregoing constitutional rights will subject the erring The Supreme Court summarizes the rule as follows:
law enforcer to criminal prosecution for violation of Republic Act No.
7438, which defines certain rights persons arrested, detained or under Corolarilly, the 1987 Constitution states that a search and consequent
custodial investigation, as well as the duties of public officers. seizure must be carried out with a judicial warrant; otherwise, it
becomes unreasonable and any evidence obtained therefrom shall be
It is always a balancing act- the obligation of the State to enforce the inadmissible for any purpose in any proceeding. Said proscription,
law to protect its citizens and the right of individuals to be similarly however, admits of exceptions, namely:
protected against possible abuses of the State. The best solution is to
simply abide by the law. This will dispense with police intervention and 1. Warrantless search incidental to a lawful arrest;
bill of rights- invocation.
2. Search of evidence in “plain view;”
Warrantless Arrest: When Can It Be Lawful?
3. Search of a moving vehicle;
Last updated: 03 November 2017 15:18 Created: 03 November 2017
14:57 3 min read Hits: 2055 Rating: 4. Consented warrantless search;

An individual who committed an offense was chased by a police 5. Customs search;

officer. The individual attempted to go inside a house to hide from the 6. Stop and Frisk; and
police authorities. The officer followed and discovered drugs lying
around. Can the drugs be confiscated and used as evidence? 7. Exigent and emergency circumstances.
According to the plain view doctrice, the evidence can be used as the
intrusion was valid. If the police officer peeks through the window of What constitutes a reasonable or unreasonable warrantless search or
the house and sees the drugs, he can also confiscate the evidence seizure is purely a judicial question, determinable from the
without prejudice. However, the plain view doctrine cannot be used uniqueness of the circumstances involved, including the purpose of
because there was no previous valid intrusion. the search or seizure, the presence or absence of probable cause, the
manner in which the search and seizure was made, the place or thing
Section 5, Rule 113 of the Rules of Court provides: searched, and the character of the articles procured.
Sec 5. Arrest without warrant, when lawful – A peace officer or a In searches incident to a lawful arrest, the arrest must precede the
private person may, without a warrant, arrest a person: search; generally, the process cannot be reversed. Nevertheless, a
search substantially contemporaneous with an arrest can precede the
(a) When, in his presence, the person to be arrested has committed, arrest if the police have probable cause to make the arrest at the
is actually committing or is attempting to commit an offense; outset of the search. Although probable cause eludes exact and
(b) When an offense has just been committed and he has probable concrete definition, it ordinarily signifies a reasonable ground of
cause to believe based on personal knowledge of facts or suspicion supported by circumstances sufficiently strong in
circumstances that the person to be arrested has committed it; and themselves to warrant a cautious man to believe that the person
accused is guilty of the offense with which he is charged.
(c) When the person to be arrested is a prisoner who has escaped
from a penal establishment or place where he is serving final
SC reminds PNP anew: Follow rules on warrantless arrest custody serving final judgment or temporarily confined during the
pendency of his case or has escaped while being transferred from
September 25, 2016 - 11:35am one confinement to another.
MANILA, Philippines (Philippines News Agency) — The Supreme The court stressed that in warrantless arrests made pursuant to Sec.
Court (SC) reminded anew the Philippine National Police to comply 5(b), “it is essential that the element of personal knowledge must be
with rules on warrantless arrest, particularly on drug suspects. coupled with the element of immediacy; otherwise, the arrest may be
nullified, and resultantly, the items yielded through the search
The court made the reiteration after it acquitted a drug convict when it incidental thereto will be rendered inadmissible in consonance with
found that his warrantless arrest and the search incidental to his the exclusionary rule of the 1987 Constitution.”
arrest were “unreasonable and unlawful.”
The court held that while the element of personal knowledge under
In the 11-page decision penned by Justice Estela M. Perlas-Bernabe, Sec. 5(b) was present, the police authorities, opting to conduct a “hot
the high court’s First Division granted the appeal of accused-appellant pursuit operation which — considering the lack of immediacy —
Gerrjan Manago to reverse and set aside the May 20, 2013 decision unfortunately failed to meet the legal requirements therefor. Thus,
and Nov. 6, 2013 resolution of the Court of Appeals (CA). there being no valid warrantless arrest under the “hot pursuit”
The CA in the said decision affirmed the March 23, 2009 ruling of the doctrine, the CA erred in ruling that Manago was lawfully arrested.
Regional Trial Court (RTC) Branch 58 of Cebu City, finding Manago “In view of the finding that there was no lawful arrest in this case, the
guilty beyond reasonable doubt of violating Section 11, Article II of RA CA likewise erred in ruling that the incidental search on Manago’s
9165, the Comprehensive Dangerous Drugs Acts of 2002. vehicle and body was valid. In fact, the said search was made even
“In fine, Manago’s warrantless arrest, and the search incidental before he was arrested and thus, violated the cardinal rule on
thereto, including that of his moving vehicle were all unreasonable searches incidental to lawful arrests that there first be a lawful arrest
and unlawful. In consequence, the shabu seized from him is rendered before a search can be made,” the Court held.
inadmissible in evidence pursuant to the exclusionary rule under The court underscored that “routine inspections do not give police
Section 3 (2), Article III of the 1987 Constitution. Since the confiscated officers carte blanche discretion to conduct warrantless searches in
shabu is the very corpus delicti of the crime charged, Manago must the absence of probable cause.”
necessarily be acquitted and exonerated from criminal liability,” the
court held. Records reveal that in the evening of March 15, 2007, PO3 Antonio
Din of the Philippine National Police (PNP) Mobile Patrol Group
The court, however, said that one of the recognized exceptions to the personally witnessed a robbery incident while he was waiting for his
needs of a warrant before a search may be effect is a search turn to have a haircut at Jonas Borces Beauty Parlor. After his brief
incidental to a lawful arrest. In this instance, the law requires that shootout with the armed robbers, the latter fled using a motorcycle
there first be a lawful arrest before a search can be made and “the and a red Toyota Corolla. Through an investigation and verification by
process cannot be reversed.” police authorities, they found out that the armed robbers were staying
Under Section 5, Rule 113 of the Revised Rules of Criminal in Barangay Del Rio Pit-os; and traced the getaways vehicles to
Procedure, the three instances when warrantless arrests may be Manago. The next day, March 16, 2007, the police set up a
lawfully effected are: (a) an arrest of a suspect in flagrante delicto (in checkpoint in Sitio Panagdait where the red Toyota Corolla being
the very act of); (b) an arrest of a suspect where, based on personal driven by Manago passed by and was intercepted by the police
knowledge of the arresting officer, there is probable cause that said officers. The police then ordered Manago to disembark the car, and
suspect was the perpetrator of a crime which had just been from there, proceeded to search the vehicle and the body of Manago,
committed; and (c) an arrest of a prisoner who has escaped from
which yielded the plastic sachet containing shabu. Thereupon, they Seares: ‘Hot pursuit’ and Imok’s killers
effected Manago’s arrest.
ATTY. PACHICO A. SEARES December 4, 2017
In this case, the police officers had already conducted a thorough
investigation and verification proceedings, which yielded, among ARREST without warrant during “hot pursuit” is allowed for efficient
others: the identities of the robbery suspects; the place where they police work: (1) delay may endanger law enforcers’ lives or the lives of
reside; and the ownership of the getaway vehicles used in the others and (2) delay may allow the perpetrators to flee.
robbery. These pieces of information were already enough for said
police officers to secure the necessary warrants to accost the robbery Jordan Gera, the second suspect to fall in the killing of Ermita Bry.
suspects. Consequently, there was no longer any exigent Captain Felicisimo Rupinta, was arrested by police eight days (Dec. 1)
circumstance that would have justified the necessity of setting up a after Rupinta’s murder (Nov. 23).
checkpoint for the purpose of searching the subject vehicle. Also, the Was Gera’s arrest still in the course of a hot pursuit and thus valid and
checkpoint was arranged for the targeted arrest of Manago, who was legal? Most probably not, if one relies on Supreme Court past
already identified as the culprit of the robbery incident. In this regard, decisions that lay down conditions to determine legality of warrantless
it cannot, therefore, be said that the checkpoint was meant to conduct arrests.
a routinary and indiscriminate search of moving vehicles. Rather, it
was used as a subterfuge to put into force the capture of the fleeing ‘Just committed’
suspect.
From the SC rulings (among them, notably the case of Pestilos,
In 2009, Manago was found by the Cebu City RTC guilty beyond Macapanas et. al. vs. Generoso and People of the Philippines, GR
reasonable doubt of possession of 0.3852 grams of shabu and #18260, Nov. 10, 2014), what’s deemed crucial is the provision under
sentenced him to suffer the penalty of imprisonment for a period of 12 the Revised Rules of Criminal Procedure that the crime has been “just
years and one day, as minimum, to 15 years, as maximum, and to committed.”
pay a P300,000 fine.
That means the incident must have “immediacy” and “no large
The case was elevated to the CA which affirmed Manago’s conviction, measure of interruption” or “appreciable lapse of time.” Underscore
prompting the latter to further elevate the matter to the high court. the word “just” in “just committed” under the rules, the high tribunal in
effect said.

How long

But how long may the interruption be before the hot pursuit cools and
the arrest becomes unlawful?

Not hot pursuit anymore: the next day (People vs. del Rosario); three
days later (Posadas vs. Ombudsman); six days after (Rolito Go vs.
Court of Appeals, yes, the traffic rage case).

Held valid: the same day (People vs. Tonog Jr.); three hours after the
crime (People vs. Gerente).

Of course, along with the element of time, the SC also considered

“personal knowledge” and “probable cause” as determined by cops
making the arrest.
Arrest warrant Sec. 3. Duty of arresting officer. – It shall be the duty of the officer
executing the warrant to arrest the accused and deliver him to the
Let this be made clear though: If police can no longer arrest a murder nearest police station or jail without unnecessary delay.
suspect under the hot pursuit doctrine, it doesn’t mean law enforcers
hands are tied and perpetrators get off the hook. Police can still go Sec. 4. Execution of warrant. – The head of the office to whom the
after him using an arrest warrant. warrant of arrest was delivered for execution shall cause the warrant
to be executed within ten (10) days from its receipt. Within ten (10)
Is the rule merely a “human rights nicety” that the Commission on days after the expiration of the period, the officer to whom it was
Human Rights (CHR) loves to wave before law enforcers? Or an assigned for execution shall make a report to the judge who issued
annoying rule of procedure that impairs police work? the warrant. In case of his failure to execute the warrant, he shall state
the reason therefore.
Reason for rule
Sec. 5. Arrest without warrant; when lawful. – A peace officer or a
The SC, in interpreting the said rule on criminal procedure (Rule 113, private person may, without a warrant, arrest a person:
section 5 [b]), noted that as the “time gap” increases between
commission of the crime and the arrest, pieces of information “are (a) When, in his presence, the person to be arrested has committed,
prone to be contaminated by external factors,” such as is actually committing, or is attempting to commit an offense;
misinterpretation and hearsay. In sum, the rule aims to minimize
arrests on mere suspicion or information passed from person to (b) When an offense has just been committed and he has probable
person to police. cause to believe based on personal knowledge of facts or
circumstances that the person to be arrested has committed it; and
This is not to imply the police arrested suspect #2 Jordan Gera
without evidence that can stand in court. But in making the apparent (c) When the person to be arrested is a prisoner who has escaped
shortcut, the police could hurt the case buildup against Rupinta’s from a penal establishment or place where he is serving final
killers. judgment or is temporarily confined while his case is pending, or has
escaped while being transferred from one confinement to another.
The rule is a safeguard against abuse or excess. Too bad that some
people may see it as an impediment to swift law enforcement -- and a In cases falling under paragraphs (a) and (b) above, the person
dampener to the grippingly dramatic image of police hotly pursuing arrested without a warrant shall be forthwith delivered to the nearest
dastardly criminals. police station or jail and shall be proceeded against in accordance
with section 7 of Rule 112.
RULE 113 - ARREST
Sec. 6. Time of making arrest. – An arrest may be made on any day
Section 1. Definition of arrest. – Arrest is the taking of a person into and at any time of the day or night.
custody in order that he may be bound to answer for the commission
of an offense. Sec. 7. Method of arrest by officer by virtue of warrant.

Sec. 2. Arrest; how made. – An arrest is made by an actual restraint – When making an arrest by virtue of a warrant, the officer shall
of a person to be arrested, or by his submission to the custody of the inform the person to be arrested of the cause of the arrest and the fact
person making the arrest. that a warrant has been issued for his arrest, except when he flees or
forcibly resists before the officer has opportunity to so inform him, or
No violence or unnecessary force shall be used in making an arrest. when the giving of such information will imperil the arrest. The officer
The person arrested shall not be subject to a greater restraint than is need not have the warrant in his possession at the time of the arrest
necessary for his detention.
but after the arrest, if the person arrested so requires, the warrant arrested or of another acting in his behalf, have the right to visit and
shall be shown to him as soon as practicable. confer privately with such person in the jail or any other place of
custody at any hour of the day or night. Subject to reasonable
Sec. 8. Method of arrest by officer without warrant. – When making an regulations, a relative of the person arrested can also exercise the
arrest without a warrant, the officer shall inform the person to be same right.
arrested of his authority and the cause of the arrest, unless the latter
is either engaged in the commission of an offense, is pursued
immediately after its commission, has escaped, flees, or forcibly
resists before the officer has opportunity to so inform him, or when the
giving of such information will imperil the arrest.

Sec. 9. Method of arrest by private person. – When making an arrest,

a private person shall inform the person to be arrested of the intention
to arrest him and the case of the arrest, unless the latter is either
engaged in the commission of an offense, is pursued immediately
after its commission, or has escaped, flees, or forcibly resists before
the person making the arrest has opportunity to so inform him, or
when the giving of such information will imperil the arrest.

Sec. 10. Officer may summon assistance. – An officer making a lawful

arrest may orally summon as many persons as he deems necessary
to assist him in effecting the arrest. Every person so summoned by an
officer shall assist him in effecting the arrest when he can render such
assistance without detriment to himself.

Sec. 11. Right of officer to break into building or enclosure. – An

officer, in order to make an arrest either by virtue of a warrant, or
without a warrant as provided in section 5, may break into any
building or enclosure where the person to be arrested is or is
reasonably believed to be, if he is refused admittance thereto, after
announcing his authority and purpose.

Sec. 12. Right to break out from building or enclosure. – Whenever an

officer has entered the building or enclosure in accordance with the
preceding section, he may break out therefrom when necessary to
liberate himself.

Sec. 13. Arrest after escape or rescue. – If a person lawfully arrested

escapes or is rescued, any person may immediately pursue or retake
him without a warrant at any time and in any place within the
Philippines.

Sec. 14. Right of attorney or relative to visit person arrested. – Any

member of the Philippine Bar shall, at the request of the person
Robbery vs. Theft; distinctions. In People v. Tapang,⁠10 this Court affirmed the conviction of the
accused for frustrated theft because he stole a white gold ring with
PEOPLE OF THE PHILIPPINES VS. CESAR CONCEPCION Y diamond stones from the victim’s pocket, which ring was immediately
BULANIO, G.R. No. 200922, July 18, 2012. or subsequently recovered from the accused at or about the same
time it was stolen.
“x x x.
In People v. Omambong,⁠11 the Court distinguished robbery from
Robbery vs. Theft theft. The Court held:
On the second and third issues, Article 293 of the RPC defines Had the appellant then run away, he would undoubtedly have been
robbery as a crime committed by “any person who, with intent to gain, guilty of theft only, because the asportation was not effected against
shall take any personal property belonging to another, by means of the owner’s will, but only without his consent; although, of course,
violence against or intimidation of any person, or using force upon there was some sort of force used by the appellant in taking the
anything.” Robbery with homicide occurs when, by reason or on money away from the owner.
occasion of the robbery, the crime of homicide shall have been
committed⁠5. In Article 249 of the RPC, any person who shall kill xxxx
another shall be deemed guilty of homicide. Homicide, as used in
robbery with homicide, is to be understood in its generic sense to What the record does show is that when the offended party made an
include parricide and murder.⁠6 The penalty for the crime of robbery attempt to regain his money, the appellant’s companions used
with homicide is reclusion perpetua to death.⁠7 violence to prevent his succeeding.

Theft, on the other hand, is committed by any person who, with intent xxxx
to gain but without violence against or intimidation of persons nor
force upon things, shall take the personal property of another without The crime committed is therefore robbery and not theft, because
the latter’s consent⁠8. The penalty of prision correccional in its personal violence was brought to bear upon the offended party before
minimum and medium periods is imposed upon persons guilty of theft, he was definitely deprived of his money.⁠12
if the value of the thing stolen is more than P200 but does not exceed
P6,000. The prosecution failed to establish that Concepcion used violence,
intimidation or force in snatching Acampado’s shoulder bag.
By definition in the RPC, robbery can be committed in three ways, by Acampado herself merely testified that Concepcion snatched her
using: (a) violence against any person; (b) intimidation of any person; shoulder bag which was hanging on her left shoulder. Acampado did
and/or (c) force upon anything. Robbery by use of force upon things is not say that Concepcion used violence, intimidation or force in
provided under Articles 299 to 305 of the RPC. snatching her shoulder bag. Given the facts, Concepcion’s snatching
of Acampado’s shoulder bag constitutes the crime of theft, not
The main issue is whether the snatching of the shoulder bag in this robbery.
case is robbery or theft. Did Concepcion employ violence or
intimidation upon persons, or force upon things, when he snatched Concepcion’s crime of theft was aggravated by his use of a
Acampado’s shoulder bag? motorcycle in committing the crime. Under Article 14(20) of the RPC,
the use of a motor vehicle as a means of committing a crime is a
In People v. Dela Cruz,⁠9 this Court found the accused guilty of theft generic aggravating circumstance. Thus, the maximum period of the
for snatching a basket containing jewelry, money and clothing, and penalty for the crime of theft shall be imposed upon Concepcion due
taking off with it, while the owners had their backs turned. to the presence of a generic aggravating circumstance and the
absence of any mitigating circumstance.
Based on the RTC Decision’s statement of facts which was affirmed possessions that are stolen belonged to someone else, they can be
by the CA, Concepcion’s co-conspirator, Rosendo Ogardo, Jr. y taken in secret or while the owner is unavailable. Robbery can only be
Villegas (Ogardo), who was driving the motorcycle, died because he charged if the victim personally experienced the crime.
lost control of the motorcycle and crashed in front of de Felipe’s taxi.
Since Concepcion, as passenger in the motorcycle, did not perform or Threats
execute any act that caused the death of Ogardo, Concepcion cannot
be held liable for homicide. Where a perpetrator does not harm a victim, but merely threatens the
victim with harm, several additional requirements must be met in order
X x x.” to show that a robbery occurred. Threats during a theft only rise to the
level of robbery if they are imminent threats that include a threat of
Robbery death, bodily injury, or destruction of the victim’s home. If a criminal
threatens to shame the victim or spread rumors about them, this will
Robbery is defined as the taking of another’s property by force or not turn a larceny into a robbery. Additionally, the victim must have an
threat. It is sometimes also referred to as larceny by threat or force. actual and reasonable fear based on the threats. For example, if a
Because robbery involves injury or the threat of injury, it is considered weightlifter is threatened by a small child who is trying to steal his
a more serious crime than many of the other theft crimes. wallet, it is doubtful that the weightlifter would be “reasonably” afraid
of the child and this is probably not a robbery.
In 2012, over a quarter of a million robberies occurred in the United
States. This is a twenty-five percent reduction from the more than one Aggravated Robbery
million robberies that occurred per year for much of the 1990s.
Many states provide for varying degrees of robbery depending on the
Elements of Robbery level of violence exerted against the victim. Aggravated robbery is a
robbery that occurs under the most serious of circumstances and
The crime of robbery involves (1) the taking of the property of another usually requires either that a deadly weapon was used during the
(2) from his or her person or in their presence (3) by violence, robbery or that the perpetrator inflicted serious bodily harm on the
intimidation or threat (4) with the intent to deprive them of it victim. For instance, if a criminal uses a gun or knife to commit the
permanently. Robbery is thus distinct from the crime of larceny in two crime, or gravely injures the victim, he may be charged with
important ways. First, the theft occurs through the use of force and aggravated robbery. Some states also apply aggravated robbery to
intimidation. A perpetrator is not required to use significant force, or any robbery that occurs against special groups of victims, such as
extreme threats, in order to commit a robbery. All that is required is elderly persons or disabled individuals.
the amount of violence or fear necessary to cause the victim to give
up his or her possessions. This may vary based on the value of the Article 308 of the Revised Penal Code provides
possession and the victim. For instance, less violence may be
required to rob an elderly woman of her possessions than would be Art. 308. Who are liable for theft. Theft is committed by any person
required to intimidate a strong young man. It is also important to note who, with intent to gain but without violence against, or intimidation of
that the violence must occur as part of the theft in order for the crime persons nor force upon things, shall take personal property of another
to rise to the level of robbery. If an individual uses violence after the without the latters consent.
theft while trying to escape police, for instance, this will not make the
crime a robbery. The elements of theft under Article 308 of the Revised Penal Code
are as follows: (1) that there be taking of personal property; (2) that
A second distinction of robbery is that the crime must occur in the said property belongs to another; (3) that the taking be done with
victim’s presence. This is because violence or threat of harm requires intent to gain; (4) that the taking be done without the consent of the
the presence of the victim. If the victim is unavailable, the elements of owner; and (5) that the taking be accomplished without the use of
a robbery cannot be completed. While larceny requires that the violence against or intimidation of persons or force upon things.
RA 9165 Section 11. Possession of Dangerous Drugs. - The penalty hydrochloride, marijuana resin or marijuana resin oil,
of life imprisonment to death and a fine ranging from Five hundred methamphetamine hydrochloride or "shabu", or other dangerous
thousand pesos (P500,000.00) to Ten million pesos (P10,000,000.00) drugs such as, but not limited to, MDMA or "ecstasy", PMA, TMA,
shall be imposed upon any person, who, unless authorized by law, LSD, GHB, and those similarly designed or newly introduced drugs
shall possess any dangerous drug in the following quantities, and their derivatives, without having any therapeutic value or if the
regardless of the degree of purity thereof: quantity possessed is far beyond therapeutic requirements; or three
hundred (300) grams or more but less than five (hundred) 500) grams
(1) 10 grams or more of opium; of marijuana; and
(2) 10 grams or more of morphine; (3) Imprisonment of twelve (12) years and one (1) day to twenty (20)
years and a fine ranging from Three hundred thousand pesos
(3) 10 grams or more of heroin; (P300,000.00) to Four hundred thousand pesos (P400,000.00), if the
(4) 10 grams or more of cocaine or cocaine hydrochloride; quantities of dangerous drugs are less than five (5) grams of opium,
morphine, heroin, cocaine or cocaine hydrochloride, marijuana resin
(5) 50 grams or more of methamphetamine hydrochloride or "shabu"; or marijuana resin oil, methamphetamine hydrochloride or "shabu", or
other dangerous drugs such as, but not limited to, MDMA or
(6) 10 grams or more of marijuana resin or marijuana resin oil; "ecstasy", PMA, TMA, LSD, GHB, and those similarly designed or
newly introduced drugs and their derivatives, without having any
(7) 500 grams or more of marijuana; and therapeutic value or if the quantity possessed is far beyond
therapeutic requirements; or less than three hundred (300) grams of
(8) 10 grams or more of other dangerous drugs such as, but not
marijuana.
limited to, methylenedioxymethamphetamine (MDA) or "ecstasy",
paramethoxyamphetamine (PMA), trimethoxyamphetamine (TMA),
lysergic acid diethylamine (LSD), gamma hydroxyamphetamine
(GHB), and those similarly designed or newly introduced drugs and
their derivatives, without having any therapeutic value or if the
quantity possessed is far beyond therapeutic requirements, as
determined and promulgated by the Board in accordance to Section
93, Article XI of this Act.

Otherwise, if the quantity involved is less than the foregoing

quantities, the penalties shall be graduated as follows:

(1) Life imprisonment and a fine ranging from Four hundred thousand
pesos (P400,000.00) to Five hundred thousand pesos (P500,000.00),
if the quantity of methamphetamine hydrochloride or "shabu" is ten
(10) grams or more but less than fifty (50) grams;

(2) Imprisonment of twenty (20) years and one (1) day to life
imprisonment and a fine ranging from Four hundred thousand pesos
(P400,000.00) to Five hundred thousand pesos (P500,000.00), if the
quantities of dangerous drugs are five (5) grams or more but less than
ten (10) grams of opium, morphine, heroin, cocaine or cocaine
SC orders adoption of new plea bargaining rules for drug cases During its full court session last April 10, the framework was approved
by the SC en banc.
By Christopher Lloyd Caliwan May 4, 2018, 7:39 pm Share
The SC said that plea bargaining is not allowed in drugs cases where
MANILA -- The Supreme Court (SC) En Banc has ordered all trial the penalty is life imprisonment or death.
courts to adopt a new plea bargaining framework in illegal drug cases
that would allow an accused to plead guilty to a lesser offense for a Plea bargaining is also not allowed under Section 5 of RA 9165 on the
lighter penalty. sale, trading, administration, dispensation, delivery, distribution and
transportation of all kinds of dangerous drugs, the SC noted.
In an eight-page notice dated May 3, the High Court directed Court
Administrator Jose Midas Marquez to issue a circular to all trial courts Under the plea bargaining framework, an accused charged with
in the country for the implementation of the plea bargaining policy. violation of Section 11 of RA 9165 on possession of dangerous drugs
where the quantity is less than 5 grams (in case of shabu, opium,
The plea bargaining framework was adopted by the SC as an offshoot morphine, heroin and cocaine, and less than 300 grams in case of
of its Aug. 15, 2017 decision that declared unconstitutional Section 23 marijuana) with a penalty of 12 years and one day to 20 years in
of Republic Act No. 9165 (Comprehensive Dangerous Drugs Act of prison and a fine ranging from PHP300,000 to PHP400,000, he or she
2002) for being contrary to the rule-making authority of the High can plea bargain to a violation of Section 12 on possession of
Tribunal under the Constitution. equipment, instrument, apparatus, etc. with a penalty of six months
and one day to four years in prison and a fine ranging from
Section 23 of RA 9165 provides that any person charged under the PHP10,000 to PHP50,000.
law, regardless of the imposable penalty, should be denied plea
bargaining or pleading guilty to a lesser offense. In this case, the SC said “the court is given the discretion to impose a
minimum period and a maximum period to be taken from the range of
The SC ruling was handed down on the case filed by Salvador penalty provided by law.”
Estipona against Legaspi City regional trial court Judge Frank
Lobrigo. It said “a straight penalty within the range of six months and one day
to one year may likewise be imposed.”
Case records showed that Estipona was allegedly caught in
possession of .084 grams of methamphetamine hydrochloride or The SC also said, “In all instances, whether or not the maximum
shabu. He was charged with violation of Section 11, Article 2 of RA period of the penalty is already served, drug dependency test shall be
9165 before Judge Lobrigo. required. If accused admits drug use, or denies it but is found positive
after drug dependency test, he/she shall undergo treatment
Assisted by the Public Attorney’s Office, Estipona challenged before rehabilitation for a period of not less than six month.
the SC the judge’s denial of his motion for plea bargaining. The SC
ruled in Estipona's favor. “Said period shall be credited to his/her penalty and the period of
his/her after-care and follow-up program if penalty is still unserved. If
Citing previous decisions, the SC said its power “to promulgate rules accused is found negative for drug use/dependency, he/she will be
for pleading, practice, and procedure is exclusive to the Court and is released on time served, otherwise, he/she will serve his sentence in
not a shared power” and thus, the High Court “is the only entity that jail minus the counseling period at rehabilitation center.
may regulate such procedure.”
"However, if accused applies for probation in offenses punishable
Associate Justice Diosdado M. Peralta, who wrote the Estipona ruling, under RA 9165, other than for illegal drug trafficking or pushing under
met with the officers of the Philippine Judges Association, which Section 5 in relation to Section 24 thereof, then the law on probation
submitted the draft on the plea bargaining framework. shall apply."
Also under Section 11, if the accused is charged with possession of
shabu, opium, morphine, heroin, and cocaine of more than 5 grams
but not exceeding 10 grams, or with marijuana of 300 grams but not
more than 500 grams, he or she can plea bargain to violation of
Section 11 (less than 5 grams in case of shabu, etc. and less than
300 grams of marijuana) to lower the penalty from 20 years to life
imprisonment and fine ranging from PHP400,000 to PHP500,000, to
12 years and one day to 20 years prison term and fine ranging from
PHP300,000 to PHP400,000.

If an accused is charged with possession of equipment, apparatus

and other paraphernalia for dangerous drugs under Section 12, he or
she can plea bargain to violation of Section 15 or use of dangerous
drugs to lessen the penalty from six months and one day to four years
in prison and fine from PHP10,000 to PHP50,000, to six months
treatment and rehabilitation if he or she admits drug use or is found
positive after drug use/dependency test.

For violation of Section 14 for possession of equipment, apparatus

and other paraphernalia for dangerous drugs during parties, social
gatherings or meeting, he or she can plea bargain to violation of
Section 15 on use of dangerous drugs to lower the penalty from a
maximum or four months in prison to six months of treatment and
rehabilitation. (PNA)
SEARCH WARANT ADMINISTRATIVE CIRCULAR NO. 13 September 23, 1974, of this Court, and thereupon tried and decided
by the judge to whom it has been assigned, and not necessarily by
SUPREME COURT CIRCULARS AND ORDERS the judge who is issued the search warrant.
TO: ALL EXECUTIVE JUDGES AND JUDGES OF THE New applications. — In order to insure maximum legitimate effect and
METROPOLITAN TRIAL COURTS, MUNICIPAL TRIAL COURTS give meaning and substance to the constitutional guarantee on the
AND MUNICIPAL CIRCUIT TRIAL COURTS security of every person, his house and his effects, against
unreasonable searches and seizures, the following procedure should
SUBJECT: GUIDELINES AND PROCEDURE IN THE ISSUANCE be strictly observed:
OF SEARCH WARRANTS.
A warrant may be issued for the search and seizure of personal
Under Administrative Order No. 6 of this Court, dated June 30, 1975, property — 1) subject of the offense; 2) stolen or embezzled or are
the Executive Judge derives his powers and prerogatives through the proceeds or fruits of an offense; and, 3) used or intended to be
delegation thereof by this Court — some of which are to improve used as the means of committing an offense;
judicial services, in coordination with court related government
agencies, and to further provide leadership in the management of all A warrant shall not issue but upon probable cause in laid connection
courts within his area of administrative supervision. with one specific offense to be determined by the judge or such other
responsible officer authorized by law after examination under oath or
As a measure to better serve the public good and to facilitate the affirmation of the complainant and the witnesses he may produce on
administration of justice, the Court is prescribing hereunder the facts personally known to them, and particularly describing the place
guidelines in the issuance of search warrants: to be searched and the things to be seized so that they could be
All applications for search warrants, if filed with the Executive Judge, properly identified;
shall be assigned, by raffle, to a judge within his administrative area, The judge must, before issuing the warrant, personally examine in the
under whose direction the search warrant shall be issued for the form of searching questions and answers, in writing and under oath,
search and seizure of personal property; the complainant and any witnesses he may produce and attach to the
After the application has been raffled and distributed to a Branch, the record their sworn statements together with any affidavits submitted;
judge who is assigned to conduct the examination of the complainant If the judge is thereupon satisfied of the existence of facts upon which
and witnesses should immediately act on the same, considering that the application is based, or that there is probable cause to believe that
time element and possible leakage of information are primary they exist, he must issue the warrant, which must be substantially in
considerations in the issuance of search warrants and seizure; the form prescribed by the Rules;
Raffling shall be strictly enforced, except only in cases where an Search warrants must be in duplicate, both signed by the judge. The
application for search warrant may be filed directly with any judge in duplicate copy thereof must be given to the person against whom the
whose jurisdiction the place to be searched is located, after office warrant is issued and served. Both copies of the warrant must indicate
hours, or during Saturdays, Sundays, and legal holidays, in which the date until when the warrant shall be valid and must direct that it be
case the applicant is required to certify under oath the urgency of the served in the daytime. If the judge is satisfied that the property is in
issuance thereof after office hours, or during Saturdays, Sundays and the person or in the place ordered to be searched, a direction may be
legal holidays; inserted in the warrants that it be served at any time of the day or
If, in the implementation of the search warrant, properties are seized night; In every court, there shall be a log under the custody of the
thereunder and the corresponding case is filed in court, said case Clerk of Court wherein shall be entered within 24 hours after the
shall be distributed by raffle conformably with Circular No. 7, dated issuance of the search warrant, the following:
Date and number of the warrant; Search warrant

Name of the issuing judge; By: Frank E. Lobrigo - @inquirerdotnet 12:07 AM December 07, 2016

Name of the person against whom the warrant is issued; The nation was stunned by news that a confessed narcopolitician,
who turned against cohorts, perished while in the custody of state
Offense cited in the warrant; and agents in a provincial jail. The lethal police operation was underpinned
by a search warrant, a judicial writ derived from the common law legal
Name of the officer who applied for the warrant and his witnesses. tradition that reached the Philippines during the American colonial
Each branch or branches of a court shall have a separate and distinct period.
log book from the log book kept by the other branches of the same “Every man’s house is his castle” is a legal maxim celebrated in
court stationed in another city or municipality; English as well as American constitutional theory. The legal maxim
The search warrant shall be valid for ten (10) days from date of sprang from the 1603 English Semayne’s case which not only
issuance, and after which the issuing judge should ascertain if the recognized the right of the homeowner to defend his house against
return has been made, and if there was none, should summon the unlawful entry even by the King’s agents, but at the same time
person to whom the warrant was issued and require him to explain recognized the authority of the appropriate officers to break and enter
why no return was made. If the return has been made, the judge upon notice in order to execute the King’s process.
should ascertain from the officer who seized the property under the In American jurisprudence, the Semayne’s case was the foundation of
warrant if a detailed receipt of the property seized was left with the the “knock and announce rule” in the implementation of search
lawful occupants of the premises in whose presence the search and warrants. In the 1765 English case of Entick vs Carrington, the right to
seizure were made, or in the absence of such occupants, whether he privacy of abode was fortified when the issuance and implementation
left a receipt in the place in which he found the seized property in the of a general search warrant was outlawed. Stonehill vs Diokno was
presence of at least two witnesses of sufficient age and discretion the Philippine version of Entick vs Carrington.
residing in the same locality, and should require that the property
seized by virtue of the warrant shall be delivered to the judge who Entick vs Carrington paved the way for the adoption in 1791 of the
issued the warrant. The judge should see to it that an accurate and Fourth Amendment in the US Constitution, which guarantees the right
true inventory of the property seized duly verified under oath is of the people to be secure in their persons, houses, papers and
attached to the return and filed with the court; and effects, against unreasonable searches and seizures. The same
guarantee is found in Section 2 of Article III of the 1987 Philippine
The return on the search warrant shall be filed and kept by the Constitution. A similar provision is found in Article 10, Title IV of the
custodian of the log book who shall also enter in the log book, the 1899 Malolos Constitution. In the 1886 case of Boyd vs United
date of the return, the result, and such other actions the judge may States, which applied the Fourth Amendment, the US Supreme Court
have taken thereon. hailed the case of Entick vs Carrington as a “great judgment; one of
This circular shall take effect immediately from receipt of notice. the landmarks of English liberty; and one of the permanent
Melencio-Herrera and Relova, JJ., are on leave. monuments of the British Constitution.”

Very truly yours, A search warrant thus is a justified intrusion into a citizen’s
constitutional right to privacy and the right against unreasonable
(Sgd.) GLORIA C. PARAS searches and seizures. The Rules of Court require that it can only be
issued upon probable cause and on personal knowledge of the
Clerk of Court applicant of the facts justifying the issuance. The place to be searched
or persons or things to be seized must be identified with specific Note: This speech was originally published in The Manila Bulletin
description. The warrant is issued for the seizure of personal property Newspaper Online (www.mb.com.ph). Due to its importance to the
involved in a crime either as an effect or fruit of a crime, or used or PNP, this office reproduced it entirely for the information of our
intended as a means of committing a crime. With jurisprudential policemen in the field.
disdain for general warrants, a search warrant is limited by the single-
offense rule. (Speech of Sen. MIRIAM DEFENSOR SANTIAGO at the Philippine
National Police Headquarters, Camp Crame, on March 13, 2006.)
A search warrant has a subject and an object. The subject is either a
natural or juridical person to whom inures the constitutional guarantee Under the Rules of Court, Rule 113, Section 5, a warrantless arrest,
of the right of privacy. The object is the place to be searched and the also known as "citizen’s arrest," is lawful under three circumstances:
personal property to be seized. There must be a causal link between
the subject and the object of a search warrant. That nexus is When, in the presence of the policeman, the person to be arrested
established by the effective control of the subject of the warrant over has committed, is actually committing, or is attempting to commit an
the object of the search. offense. This is the "in flagrante delicto" rule.

Leased premises are within the effective control of the lessee that When an offense has just been committed, and he has probable
makes him the subject of a search warrant to be implemented in the cause to believe, based on personal knowledge of facts or
leased premises. Thus a search warrant can only be issued against a circumstances, that the person to be arrested has committed it. This is
subject who enjoys the right to privacy. The state or any of its the "hot pursuit" arrest rule.
instrumentalities do not enjoy such constitutional right because the bill When the person to be arrested is a prisoner who has escaped from a
of rights is arrayed against the tremendous power of the state. The penal establishment.
state bears the burden or duty of transparency and never the right to
privacy. In flagrante delicto warrantless arrest should comply with the element
of immediacy between the time of the offense and the time of the
The only possibility that a search warrant may be issued against a arrest. For example, in one case the Supreme Court held that when
state property or premises is when such property or premises are the warrantless arrest was made three months after the crime was
within the effective control of a private individual or entity. committed, the arrest was unconstitutional and illegal.

If an accused is caught in flagrante delicto, the warrantless arrest is

lawful and the evidence obtained in a search incidental to the arrest is
admissible as evidence. One common example of a warrantless
arrest is a buybust operation.

An offense is committed in the presence or within the view of an

officer when the officer sees the offense, although at a distance; or
hears the disturbance that it creates and proceeds at once to the
scene.

If the warrantless arrest turns out to be unlawful, still the court is

capable of assuming jurisdiction over the accused. Any objection to
the court’s jurisdiction is waived, when the person arrested submits to
arraignment without any objection.
The test of in flagrante delicto arrest is that the suspect was acting A valid arrest must precede the search, not vice versa. One exception
under circumstances reasonably tending to show that he has to the rule on search is waiver by the suspect. For example, where the
committed or is about to commit a crime. Evidence of guilt is not shabu was discovered by virtue of a valid warrantless search, and the
necessary. It is enough if there is probable cause. For example, if accused himself freely gave his consent to the search, the prohibited
there was a prior arrangement to deliver shabu inside a hotel, the drugs found as a result were inadmissible as evidence.
immediate warrantless arrest of the accused upon his entry in the
hotel room is valid. By contrast, the discovery of marked money on Another example, is the stop-and-frisk rule. A warrantless search is
the accused does not justify a warrantless arrest. allowed if the officers had reasonable or probable cause to believe
before the search that either the motorist is a law offender, or that
Under the rule on "hot pursuit" arrest, the policeman should have they did find the evidence pertaining to the commission of a crime in
personal knowledge that the suspect committed the crime. The test is the vehicle to be searched. The rule for checkpoints is that the
probable cause, which the Supreme Court has defined as "an actual inspection of the vehicle should be limited to a visual search. The
belief or reasonable grounds of suspicion." vehicle itself should not be searched, and its occupants should not be
subjected to a body search.
Under this rule, the policeman does not need to actually witness the
execution or acts constituting the offense. But he must have direct * Seizure of prohibited articles in plain view. The seizure should
knowledge, or view of the crime, right after its commission. comply with the following requirements:

* Mentally disabled persons on emergency grounds. (1) A prior valid intrusion based on a valid warrantless arrest, in which
the police are legally present in the pursuit of their official duties.
* Arrest based on unreasonable suspicion.
(2) The evidence was inadvertently discovered by the police who had
The Constitution does not forbid warrantless search; it only forbids the right to be where they are.
unreasonable search. The Rules of Court, Rule 126, Section 13,
allows a warrantless search, provided it is incident to a lawful arrest. (3) The evidence must be immediately apparent.
The law provides: "A person lawfully arrested maybe searched for
dangerous weapons or anything which may have been used or (4) Plain view justified mere seizure of evidence without further
constitute proof in the commission of an offense without a search search.
warrant."
As a lawyer and a former RTC judge, I am a very strong law and-
To be valid, the search must have been conducted at about the time order person. The people upholding law in society are policemen and
of the arrest or immediately thereafter, and only at the place where therefore, all doubts should be resolved in favor of the police. After all,
the suspect was arrested, or the premises or surroundings under his the Rules of Court provides for the disputable presumption that official
immediate control. duty has been regularly performed.

Any evidence obtained during an illegal search (even if it confirms I submit that it is not fair to demand that the police should risk their
initial suspicion of felonious activity) is considered absolutely very lives to uphold the rule of law, and yet should be held in low
inadmissible for any purpose in any proceeding, since it is considered esteem by people whose mission in life is to change or disregard the
to be the fruit of a poisonous tree. Since the Anti-Wiretapping Law law, outside of constitutional processes. Accordingly, as vice chair of
provides that an illegal wiretap is inadmissible for any purpose in any the Senate Finance Committee, I will file at the end of the Senate
proceeding, being the fruit of a poisonous tree, do you wonder how budget hearings, a motion to appropriate the sum of R37 billion for the
the alleged Garci tape could be possibly considered admissible? I Philippine National Police.
wonder too.
* More firearms, both short and long; more radios, whether base, Human Rights Advisory for Arresting Officer Implementing Warrant of
mobile, or handheld. Arrest

It is not the guns or armament or the money they can pay. It is the (Revised POP December 2013, Rule 13 pages 32-37)
close cooperation that makes them win the day. It is not the individual
or the police as a whole but the everlasting teamwork. “All PNP personnel must promote and protect the citizen’s right to due
process, presumption of innocence until proven guilty by the court,
and equal protection of the law."

Always carry a copy of the warrant of arrest. In case the warrant of

arrest is not in the possession of the arresting officer, it must be
produced and immediately shown to the person arrested after the
conduct of the arrest;

Be in proper and complete uniform or as the nature of the operation

would require, it is enough that a member of the team implementing
the warrant is in uniform but everybody must have PNP ID CARD.
Always identify yourself as a police officer;

Arresting officers must deliver the arrested person without

unnecessary delay to the nearest Police Station or jail to record the
fact of the arrest;

Respect the right of person deprived of liberty to have immediate

access to any form of communication available to inform his/her
family, relative, friend, lawyer or any human rights organization on his
or her whereabouts and condition;

Arresting officers must inform the person arrested of the cause of the
arrest and the fact that a warrant had been issued for his arrest,
except when he flees or forcibly resist before the officer has
opportunity to so inform him, or when giving such information will
imperil the arrest;

As much as possible, use marked PNP vehicle in transporting

arrested person(s);

No torture, force, violence, threat, intimidation, or any other similar

means which vitiate the free will shall be used against an arrested
person; and

The bringing of arrested persons to secret detention places, solitary

confinement and the like is strictly prohibited.