PostHeaderIcon Warrantless Arrest & Search: A Police Primer

senator mirriam

Note: This speech is originally published in The Manila Bulletin Newspaper Online (www.mb.com.ph). Due to its importance to the PNP, this office reproduced it entirely for the information of our policemen in the field.

(Speech of Sen. MIRIAM DEFENSOR SANTIAGO at the Philippine National Police Headquarters, Camp Crame, on March 13, 2006.)

Under the Rules of Court, Rule 113, Section 5, a warrantless arrest, also known as "citizen’s arrest," is lawful under three circumstances:

1. When, in the presence of the policeman, the person to be arrested has committed, is actually committing, or is attempting to commit an offense. This is the "in flagrante delicto" rule.

2. When an offense has just been committed, and he has probable cause to believe, based on personal knowledge of facts or circumstances, that the person to be arrested has committed it. This is the "hot pursuit" arrest rule.

3. When the person to be arrested is a prisoner who has escaped from a penal establishment.

In flagrante delicto warrantless arrest should comply with the element of immediacy between the time of the offense and the time of the arrest. For example, in one case the Supreme Court held that when the warrantless arrest was made three months after the crime was committed, the arrest was unconstitutional and 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 under circumstances reasonably tending to show that he has committed or is about to commit a crime. Evidence of guilt is not necessary. It is enough if there is probable cause. For example, if there was a prior arrangement to deliver shabu inside a hotel, the immediate warrantless arrest of the accused upon his entry in the hotel room is valid. By contrast, the discovery of marked money on the accused does not justify a warrantless arrest.

Under the rule on "hot pursuit" arrest, the policeman should have personal knowledge that the suspect committed the crime. The test is probable cause, which the Supreme Court has defined as "an actual belief or reasonable grounds of suspicion."

Under this rule, the policeman does not need to actually witness the execution or acts constituting the offense. But he must have direct knowledge, or view of the crime, right after its commission.

* Mentally disabled persons on emergency grounds.

* Arrest based on unreasonable suspicion.

The Constitution does not forbid warrantless search; it only forbids unreasonable search. The Rules of Court, Rule 126, Section 13, allows a warrantless search, provided it is incident to a lawful arrest. The law provides: "A person lawfully arrested maybe searched for dangerous weapons or anything which may have been used or constitute proof in the commission of an offense without a search warrant."

To be valid, the search must have been conducted at about the time of the arrest or immediately thereafter, and only at the place where the suspect was arrested, or the premises or surroundings under his immediate control.

Any evidence obtained during an illegal search (even if it confirms initial suspicion of felonious activity) is considered absolutely inadmissible for any purpose in any proceeding, since it is considered to be the fruit of a poisonous tree. Since the Anti-Wiretapping Law provides that an illegal wiretap is inadmissible for any purpose in any proceeding, being the fruit of a poisonous tree, do you wonder how the alleged Garci tape could be possibly considered admissible? I wonder too.

A valid arrest must precede the search, not vice versa. One exception to the rule on search is waiver by the suspect. For example, where the shabu was discovered by virtue of a valid warrantless search, and the accused himself freely gave his consent to the search, the prohibited drugs found as a result were inadmissible as evidence.

Another example, is the stop-and-frisk rule. A warrantless search is allowed if the officers had reasonable or probable cause to believe before the search that either the motorist is a law offender, or that they did find the evidence pertaining to the commission of a crime in the vehicle to be searched. The rule for checkpoints is that the inspection of the vehicle should be limited to a visual search. The vehicle itself should not be searched, and its occupants should not be subjected to a body search.

* Seizure of prohibited articles in plain view. The seizure should comply with the following requirements:

(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.

(2) The evidence was inadvertently discovered by the police who had the right to be where they are.

(3) The evidence must be immediately apparent.

(4) Plain view justified mere seizure of evidence without further search.

As a lawyer and a former RTC judge, I am a very strong law and-order person. The people upholding law in society are policemen and therefore, all doubts should be resolved in favor of the police. After all, the Rules of Court provides for the disputable presumption that official duty has been regularly performed.

I submit that it is not fair to demand that the police should risk their very lives to uphold the rule of law, and yet should be held in low esteem by people whose mission in life is to change or disregard the law, outside of constitutional processes. Accordingly, as vice chair of the Senate Finance Committee, I will file at the end of the Senate budget hearings, a motion to appropriate the sum of R37 billion for the Philippine National Police.

* More firearms, both short and long; more radios, whether base, mobile, or handheld.

It is not the guns or armament or the money they can pay. It is the close cooperation that makes them win the day. It is not the individual or the police as a whole but the everlasting teamwork.

Last Updated (Monday, 30 January 2012 00:52)

 
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