CRIMINAL PROCEDURE Pineda (2003) & Herrera (2007) notes

by Danika S. Santos (2-I) Page 1

RULE 112: PRELIMINARY
INVESTIGATION

SECTION 5 WHEN WARRANT OF ARREST MAY ISSUE

Source
Based on Section 6 Rule 112 of the 1985 Rules on Criminal
Procedure with the following amendments:
a. Paragraph (a) is a new rule which:
- reiterates the discretionary power of trial judge to
issue a warrant of arrest after the findings and
recommendations of the investigating officer
have been affirmed by the provincial or city
prosecutor, chief state prosecutor or
Ombudsman and his deputy, and the information
filed;
- clarifies the discretionary power of the judge to
issue a warrant of arrest without waiting for the
conclusion of the preliminary investigation after
having found existence of a probable cause
coupled with the necessity of placing respondent
under custody of the law
- aim: prevent frustration of the ends of justice,
such as when the accused is about to leave the
country and the only way to prevent him from
running away from the clutches of the law is to
put him under the custody of the court
b. paragraph (c) is a new provision which provides the
cases when warrant or arrest is not necessary

Applicability
Section 5, Rule 112 applies only after the complaint or
information had already been filed in the court (RTC or MTC)

PI is already over except in paragraph (b) (involving MTC
judge), where the accused may be ordered arrest even before
the conclusion of the PI because of the necessity of preventing
the frustration of the ends of justice as when the respondent is
about to depart from the Philippines with no assurance that he
will come back

Paragraph (a) applies to both RTC and MTC judges.
With respect to MTC judges, it is required that the PI has been
conducted by the prosecutor.
If PI was conducted by the MTC judge himself, the procedure
in Section 3, Rule 113 must be followed

Issuance of Warrant of Arrest (WOA) is NOT Mandatory on
the Part of the J udge
Judge is required to personally evaluate the resolution of the
prosecutor and its supporting evidence within 10 days from the
filing of the complaint or information.

In making the evaluation, he is not bound by the resolution and
certification of the prosecutor.
If in his evaluation he finds no probable cause, he may
immediately dismiss the case.
If there is doubt as to the existence of the probable cause, he
may order the prosecutor to present additional evidence within
5 days from the notice.
If he finds no probable cause despite the additional evidence,
he shall dismiss the case within 30 days from the filing of the
complaint or information.

Unless the judge has found the existence of probable cause,
he shall not issue a WOA.

Can Mandamus Lie to Compel a J udge to Issue a WOA?
NO.
Issuance of WOA by the judge is not automatic or mandatory.
The word may instead of shall is used. The issuance of the
warrant is subject to the sound discretion of the judge.

Remedy of Prosecutor when he believes that the accused
should be immediately placed under custody so as not to
frustrate criminal justice
Prosecutor may file the information so that the RTC judge may
issue a WOA.

Validity of WOA is not dependent upon Validity of the
Order for Its Issuance
WOA is complete by itself and signed by the judge himself, its
validity is not dependent upon the validity of the order rendered
for its issuance signed by the same judge.

Cases when WOA is not necessary
1. when the accused is already under detention
pursuant to a WOA issued by the MTC in accordance
with Paragraph (b) (a commitment order shall be
issued);
2. when the complaint or information was filed pursuant
to Section 6 of Rule 112; and
3. when the offense is punishable by fine only.

Judge Must Go Beyond the Prosecutors Certification and
Investigation Report Whenever Necessary
Correlate to Section 2, Article III of the 1987 Constitution
This constitutional provision has the effect of superseding the
former rule that a judge in determining probable cause for the
issuance of a search warrant or warrant of arrest, may rely on
the certification of the prosecutor.

People V. Inting
HELD:
1
st
Determination of probable cause is a function of
the Judge. It is not for the prosecutor to ascertain. Only the
judge and the judge alone makes this determination
2
nd
preliminary inquiry made by the Prosecutor does
not bind the judge. It merely assists him to make the
determination of probable cause. The judge does not have to
follow what the prosecutor presents to him. By itself, the
prosecutors certification of the probable cause is ineffectual. It
is the report, affidavits, the transcripts of stenographic notes (if
any), and all other supporting documents behind the
prosecutors certification which are material in assisting the
judge to make his determination.
3
rd
Judges and Prosecutors alike should distinguish
the preliminary inquiry which determines the probable cause
for the issuance of WOA from the preliminary investigation
proper which ascertains whether the offender should be held
for trial or release.
The determination of probable cause for the WOA is made by
the JUDGE. The preliminary investigation proper (whether or
not there is a reasonable ground to believe that the accused is
guilty of the offense charged) is the function of the
PROSECUTOR.


CRIMINAL PROCEDURE Pineda (2003) & Herrera (2007) notes
by Danika S. Santos (2-I) Page 2

Lim V. Felix
If a judge relies solely on the certification of the
prosecutor, he has not personally determined the probable
cause. The determination is made by the prosecutor. The
constitutional mandate has not been satisfied. The judge
therefore commits a grave abuse of discretion.
The extent of the judges personal examination of the
report and its annexes depends on the circumstances of each
case. We cannot determine beforehand how cursory or
exhaustive the judges examination should be. The judge has
to exercise sound discretion for, after all, the personal
determination is vested in the judge by the constitution. It can
be as brief or as detailed as the circumstances of each case
require. To be sure, the judge must go beyond the prosecutors
certification and investigation report whenever necessary. He
should call for the complainant and witnesses themselves to
answer the courts probing questions when the circumstances
of the case so require.


SECTION 6 WHEN ACCUSED LAWFULLY ARRESTED
WITHOUT WARRANT

Source
Based on Section 7, Rule 112 Rule of Criminal Procedure and
Section 2, RA No. 7438 (An Act Defining Certain Rights of
Person Arrested, Detained or Under Custodial Investigation as
well as the Duties of the Arresting, Detaining and investigating
Officers, and Providing Penalties for Violation Thereof.

The words Regional trial Court were deleted because there
are cases now cognizable by the 1
st
level courts which require
PI before they should be filed.

The provision for inquest by the prosecutor is inserted in the
new rule.

In the 2
nd
paragraph, if the accused would want PI for having
been arrested without a warrant, he must sign a waiver of the
provisions of Art. 125
1
of RPC in the presence of his counsel.
The provision of the old rule to the effect that he could be
assisted by a non-lawyer who is responsible of his choice
have been deleted. This means, only a lawyer can assist the
accused when he signs a waiver of the provisions of Art, 125 of
RPC.

Applicability
Rule applies only when the accused has been lawfully arrested
without a WOA. The rule on arrest of persons without a warrant
is provided in Section 5, Rule 113.

1
Art. 125 Delay in the delivery of detained persons to the proper
judicial authorities The penalties provided in the next preceding articles
shall be imposed upon the public officer or employee who shall be imposed
upon the public officer or employee who shall detain any person for some
legal ground and shall fail to deliver to deliver such person to the proper
judicial authorities with the period of:
12 hours for crimes or offenses punishable by light penalties or their
equivalent,
18 hours for crimes or offenses punishable by correctional penalties or their
equivalent, and
36 hours for crimes or offenses punishable by afflictive or capital penalties
or their equivalent.
In every case, the person detained shall be informed of the
cause of his detention and shall be allowed, upon his request, to
communicate and confer at any time with his attorney or counsel.

This section does not apply if the accused was not lawfully
arrested. The persons so arrested must be released without
prejudice to the criminal liability of the arresting officer.

If a person is lawfully arrested without a warrant and is
detained, he can ask for preliminary investigation before the
filing of the complaint or information. However, he must sign a
waiver of the provisions of Art. 125 (RPC) in the presences of
his counsel.
If he refuses to sign a waiver, the complaint or information can
be lawfully filed by the prosecutor without PI. (This is an
exception to the general rule that an arrested person is entitled
to PI if the offense does not fall under Section 8 of Rule 112
referring to cases not requiring PI nor covered by Rule on
Summary Procedure.)

It is however required under the new rule that the prosecutor
has to conduct an inquest before filing the information against
the accused (Section 6, 1
st
Par, Rule 112)

If there is no inquest prosecutor, the rule allows the:
1. offended party, or
2. peace officer
to directly file the complaint in court on the basis of the affidavit
of the offended party or arresting officer or arresting private
person.

Bail may be Asked by the Accused During the Requested
PI
Even if accused has waived the provisions of Art. 125 (RPC) to
avail himself of the right to PI, nevertheless, this waiver shall
not preclude him from applying for bail for his provisional
liberty. The investigation must be finished within 15 days from
its opening or inception. (Section 6, 2
nd
Par, Rule 112)

Filing of the Complaint or Information without PI; Remedy
of the Accused
Accused, within 5 days from the time he learns of the filing of
the complaint or information against him without PI, may ask
for it, and when granted, may present his countervailing
evidence to refute the evidence of the complainant and
witness.

The pleading that the accused may file may be entitled
Motion/Petition for Preliminary Investigation if no investigation
has been conducted.

If there was already a preliminary investigation but the accused
for no fault of his own failed to appear, he may file a
Motion/Petition for Re-Investigation. IT IS THE JUDGE and
not the prosecutor who will resolve the motion.

The motion seeking a PI must be file within 5 days from the
time the accused learned of the complaint or information.
Beyond this period, it is already late.

Custodial Investigation Report (CIR)
CIR must be reduced in writing, provided that before such
report is signed or thumbmarked (if the person arrested or
detained does not know how to read and write), it shall be read
and adequately explained to him by his counsel or by the
assisting counsel provided by the investigation officer in the
language or dialect known to such arrested or detained

CRIMINAL PROCEDURE Pineda (2003) & Herrera (2007) notes
by Danika S. Santos (2-I) Page 3

persons, OTHERWISE, such investigation report shall be null
and void.

Effect of Absence of Required PI
1. does not affect the courts jurisdiction
2. does not impair the validity of the information
3. does not render the information defective.

If there is no PI and the defendant, before entering his plea,
calls the attention of the court to the absence of the PI, the
Court, instead of dismissing the information, should conduct
such investigation, order the prosecutor to conduct it or
remand the case to the inferior court so that the PI may be
conducted.


SECTION 7 RECORDS

Source
Based on Section 8 of Rule 112 of the 1985 Rules of Criminal
Procedure with the following amendments
1. Paragraph (a) is a new insertions (based on Circular
No. 16 of the Department of Justice dated April 19,
1991 and the case of Lim v. Felix); a reiteration of the
general principle in preliminary investigation).
2. Paragraph (b), the words RTC was deleted after the
words records of the case because there are cases
now cognizable by the 1
st
level courts which require
PI before they should be filed.
3. Title of Section has been changed from Records of
Preliminary Investigation to Records
4. There are now separate titles for the 2 paragraph
which are:
Paragraph (a) Records Supporting the Information
or Complaint
Paragraph (b) Records of Preliminary Investigation

Records of the PI not Part of the record of the Case in the
Court
Hence, prosecutor is not mandated to offer in evidence the
record of PI since it is separate from the records of the case
and may or may not be considered by the court.

A PI is not a trial or any part thereof and has no purpose
except that of determining whether or not the defendant should
be released or held for trial before a competent court.

Formerly, it is only the complaint or information which is
forwarded to the trial court. Under the new rule, the complaint
or information must be accompanied by supporting affidavits
and documents. The trial judge does not take judicial notice of
the existence of documents examined or passed upon in the
PI. If there is a need to resort to other records of the PI, the
court motu proprio or upon motion of a party may direct the
production of the record or any of its part.

The handling prosecutor may also be required to produce the
records, if the accused desires to present the same as
evidence during the trial, if copies thereof had not been
forwarded to the court. The specific documents needed by the
party must be presented and marked as exhibits for
identification and must be offered as evidence if the same have
to be used as evidence.

Certain documents in the Preliminary investigation which
are required to be forwarded to the trial court together
with the complaint or information
1. Copies of evidence submitted by the parties
2. Affidavits and counter-affidavits and other relevant
evidence
3. Resolution of the prosecutor recommending the filing
of the cases (Dept Circular No. 16; April 19, 1991)
These documents are necessary to allow the trial judge ample
opportunity without the necessary inconvenience and hardship
to have sufficient basis in personally evaluating the resolution
of the prosecutor for purposes of issuing the WOA.

For evidentiary purposes, however, the accompanying
documents of the complaint or information must be duly
presented as exhibits and offered as evidence. The court
cannot be compelled to motu proprio take judicial notice of said
documents.


SECTION 8 CASES NOT REQUIRING A PRELIMINARY
INVESTIGATION NOR COVERED BY THE RULE ON
SUMMARY PROCEDURE

Source
Based on Section 9 of Rule 112 of the 1985 Rule of Criminal
Procedure with the following amendments:
1. Change of title
2. Words RTC was deleted after the words records of
the case because there are cases now cognizable by
the 1
st
level courts which require PI before they
should be filed
3. In Paragraph (a), the phrase involving an offense
punishable by imprisonment of less than 4 years, 2
months and 1 day is inserted (to conform with BP
129
2
which increased jurisdiction of 1
st
level courts)
4. Paragraph (a), 2
nd
sentence is changed by providing
for a specific period (10 days) from filing of the
complaint within which the prosecution must resolve
to dismiss or file the complaint
5. Paragraph (b) has the following amendments:
a. Judge is given 10 days after the filing of the
complaint or information to determine whether a
probable cause exists
b. If there is none, he shall dismiss the complaint or
may require submission of additional evidence to
help him determine the existence of probable
cause
c. Judge, instead of issuing a WOA, may just issue
summons;
d. If the accused is already under detention, the
judge instead of issuing a WOA may issue a
commitment order.

Coverage of Section
Applies to cases which do not require PI before they could be
filed and yet they are not covered by the rule on Summary
Procedure.


2
The jurisdiction of 1
st
level courts was further increased to cover offenses
punishable with imprisonment not exceeding 6 years irrespective of
imposable fine.

CRIMINAL PROCEDURE Pineda (2003) & Herrera (2007) notes
by Danika S. Santos (2-I) Page 4

Procedure depends upon the office or officer before whom the
case is filed:
a. If filed directly with the prosecutor and the offense
involved is punishable by imprisonment of less than 4
years, 2 months and 1 day provisions of Section 3
(a) shall be observed.
Prosecutor shall resolve the complaint on the basis of
the affidavits and other supported documents
submitted by the complainant within 10 days.
b. If the case is filed with the MTC or MCTC involving an
offense covered by this Section that is punishable by
less than 4 years, 2 months and 1 day same
procedure (Section 3a) shall be observed

Duties of the J udge in Section 8, Rule 112
1. If he finds no probable cause after personally
evaluating the evidence and after examining in writing
and under oath the complainant and his witnesses
he shall DISMISS the complaint within 10 days after
the filing of the complaint
2. If he finds probable cause he shall issue:
a. warrant of arrest against the accused to hold him
for trial
b. summon, requiring him to answer the complaint if
the judge is satisfied that there is no necessity for the
accused to be placed under custody

Probable Cause, defined
reasons, supported by facts and circumstances, as will
warrant a cautious man in the belief that his action, and the
means taken in prosecuting it, are legally just and proper. (US
v. Addison)

Meaning of searching questions and answers to
determine probable cause
- taking into consideration the purpose of the
preliminary investigation which is to determine
whether there is a reasonable ground to believe
that an offense has been committed and the
accused is probably guilty thereof so that the
WOA may be issued and the accused held for
trial, such questions as have tendency to show
the commission of a crime and the perpetrator
thereof.

Meaning of personal examination of witnesses
If witnesses made sworn statements before a peace officer,
and the Municipal Judge who examined them, asked whether
the contents thereof were true, to which the witnesses
answered in affirmative, this act satisfies the requirement of
personal examination.

Respondent Not Entitled to Discovery Procedure During
Preliminary Investigation
In a PI, the respondent is not entitled to the Discovery
Proceedings under Sections 9
3
and 10
4
of rule 116. These

3
Section 9 Bill of Particulars The accused may, before arraignment,
move for a Bill of Particulars to enable him properly to plead and prepare for
trial. The motion shall specify the alleged defects of the complaint or
information and the details desired.
4
Section 10 Production or Inspection of Material Evidence in
Possession of Prosecution Upon motion of the accused showing good
cause and with notice to the parties, the court, in order to prevent surprise,
suppression or alteration, may order the prosecution to produce and permit
provisions apply only after the filing of information in court to
assist the accused to make an intelligent plea and prepare
himself for trial.


RULE 113: ARREST

SECTION 1 DEFINITION OF ARREST

Source
Reproduction of Section 1, Rule 113 of the 1985 Rules of
Criminal Procedure

Arrest, defined
Arrest is the taking of a person into custody in order that he
may be bound to answer for the commission of an offense.

Arrest involves the following:
1. authority to arrest
2. assertion of that authority with intent to effect an
arrest; and
3. restraint of the person to be arrested

All that is required for an arrest is some act by the arresting
officer indicating his intention to detain or take a person into
custody and thereby subject that person to the actual control
and will of the officer; no formal declaration is required.

Rights of Persons Arrested, Detained or Under Custody
Investigation under RA 7438
5


the inspection and copying or photographing of any written statement given
by the complainant and other witnesses in any investigation of the offense
conducted by the prosecution or other investigating officers, as well as any
designated documents, papers, books, accounts, letters, photographs,
objects or tangible things not otherwise privileged, which constitute or
contain evidence material to any matter involved in the case and which are
in the possession or under the control of the prosecution, police, or other
law investigating agencies.

5
RA No. 7438 (AN ACT DEFINING CERTAIN RIGHTS OF PERSON
ARRESTED, DETAINED OR UNDER CUSTODIAL INVESTIGATION AS
WELL AS THE DUTIES OF THE ARRESTING, DETAINING AND
INVESTIGATING OFFICERS AND PROVIDING PENALTIES FOR
VIOLATIONS THEREOF)

Section 1. Statement of Policy. It is the policy of the Senate to value the
dignity of every human being and guarantee full respect for human rights.

Section 2. Rights of Persons Arrested, Detained or Under Custodial
Investigation; Duties of Public Officers.
(a) Any person arrested detained or under custodial investigation
shall at all times be assisted by counsel.
(b) Any public officer or employee, or anyone acting under his
order or his place, who arrests, detains or investigates any person for the
commission of an offense shall inform the latter, in a language known to
and understood by him, of his rights to remain silent and to have competent
and independent counsel, preferably of his own choice, who shall at all
times be allowed to confer privately with the person arrested, detained or
under custodial investigation. If such person cannot afford the services of
his own counsel, he must be provided with a competent and independent
counsel by the investigating officer.
(c) The custodial investigation report shall be reduced to writing
by the investigating officer, provided that before such report is signed, or
thumbmarked if the person arrested or detained does not know how to read
and write, it shall be read and adequately explained to him by his counsel or
by the assisting counsel provided by the investigating officer in the

CRIMINAL PROCEDURE Pineda (2003) & Herrera (2007) notes
by Danika S. Santos (2-I) Page 5


language or dialect known to such arrested or detained person, otherwise,
such investigation report shall be null and void and of no effect whatsoever.
(d) Any extrajudicial confession made by a person arrested,
detained or under custodial investigation shall be in writing and signed by
such person in the presence of his counsel or in the latter's absence, upon
a valid waiver, and in the presence of any of the parents, elder brothers and
sisters, his spouse, the municipal mayor, the municipal judge, district school
supervisor, or priest or minister of the gospel as chosen by him; otherwise,
such extrajudicial confession shall be inadmissible as evidence in any
proceeding.
(e) Any waiver by a person arrested or detained under the
provisions of Article 125 of the Revised Penal Code, or under custodial
investigation, shall be in writing and signed by such person in the presence
of his counsel; otherwise the waiver shall be null and void and of no effect.
(f) Any person arrested or detained or under custodial
investigation shall be allowed visits by or conferences with any member of
his immediate family, or any medical doctor or priest or religious minister
chosen by him or by any member of his immediate family or by his counsel,
or by any national non-governmental organization duly accredited by the
Commission on Human Rights of by any international non-governmental
organization duly accredited by the Office of the President. The person's
"immediate family" shall include his or her spouse, fianc or fiance, parent
or child, brother or sister, grandparent or grandchild, uncle or aunt, nephew
or niece, and guardian or ward.

As used in this Act, "custodial investigation" shall include the
practice of issuing an "invitation" to a person who is investigated in
connection with an offense he is suspected to have committed, without
prejudice to the liability of the "inviting" officer for any violation of law.

Section 3. Assisting Counsel. Assisting counsel is any lawyer, except
those directly affected by the case, those charged with conducting
preliminary investigation or those charged with the prosecution of crimes.

The assisting counsel other than the government lawyers shall
be entitled to the following fees;
(a) The amount of One hundred fifty pesos (P150.00) if the
suspected person is chargeable with light felonies;
(b) The amount of Two hundred fifty pesos (P250.00) if the
suspected person is chargeable with less grave or grave felonies;
(c) The amount of Three hundred fifty pesos (P350.00) if the
suspected person is chargeable with a capital offense.

The fee for the assisting counsel shall be paid by the city or
municipality where the custodial investigation is conducted, provided that if
the municipality of city cannot pay such fee, the province comprising such
municipality or city shall pay the fee: Provided, That the Municipal or City
Treasurer must certify that no funds are available to pay the fees of
assisting counsel before the province pays said fees.

In the absence of any lawyer, no custodial investigation shall be
conducted and the suspected person can only be detained by the
investigating officer in accordance with the provisions of Article 125 of the
Revised Penal Code.

Section 4. Penalty Clause. (a) Any arresting public officer or employee,
or any investigating officer, who fails to inform any person arrested,
detained or under custodial investigation of his right to remain silent and to
have competent and independent counsel preferably of his own choice,
shall suffer a fine of Six thousand pesos (P6,000.00) or a penalty of
imprisonment of not less than eight (8) years but not more than ten (10)
years, or both. The penalty of perpetual absolute disqualification shall also
be imposed upon the investigating officer who has been previously
convicted of a similar offense.

The same penalties shall be imposed upon a public officer or
employee, or anyone acting upon orders of such investigating officer or in
his place, who fails to provide a competent and independent counsel to a
person arrested, detained or under custodial investigation for the
commission of an offense if the latter cannot afford the services of his own
counsel.

(b) Any person who obstructs, prevents or prohibits any lawyer,
any member of the immediate family of a person arrested, detained or
under custodial investigation, or any medical doctor or priest or religious
minister chosen by him or by any member of his immediate family or by his


RA 7438 Covers Invitation of Persons by the Police
The law expanded the constitutional guarantee to situations in
which an individual has not been formally arrested but merely
been invited for questioning by the police.


SECTION 2 ARREST; HOW MADE
Source
Section 2, rule 113 of the 1985 Rules of Criminal Procedure
with the following amendment:
1. splitting of the 2
nd
paragraph into 2 sentences which
used to be a single sentence

Proper Procedure for the issuance of WOA by a J udge

1. the judge personally evaluates the report and the
supporting documents submitted by the prosecutor
regarding the existence of probable cause and on the
basis thereof, issue a WOA; or
2. if on the basis thereof he finds no probable cause, he
may disregard the prosecutors report and require the
submission of supporting affidavits of witnesses to aid
him in arriving at a conclusion as to the existence of
probable cause.

How Arrest is Effected
1. physically restraining the person to be arrested (like
putting handcuffs and placing him under the police
officers control); or
2. voluntary submission of the person to the arresting
officer (provided, he places himself to the will and
control of the latter)

There can be no arrest if the person sought to be arrested is
not conscious of any restraint of his liberty.

It is necessary in Arrest that the office has the intention to
actually restrain the other, and an intent on the part of the
person sought to be arrested to submit himself to the control or
custody of the former. Without these intentions, no arrest is
effected.

No Unnecessary Violence or Force Should be Used

counsel, from visiting and conferring privately with him, or from examining
and treating him, or from ministering to his spiritual needs, at any hour of
the day or, in urgent cases, of the night shall suffer the penalty of
imprisonment of not less than four (4) years nor more than six (6) years,
and a fine of four thousand pesos (P4,000.00).

The provisions of the above Section notwithstanding, any
security officer with custodial responsibility over any detainee or prisoner
may undertake such reasonable measures as may be necessary to secure
his safety and prevent his escape.

Section 5. Repealing Clause. Republic Act No. No. 857, as amended, is
hereby repealed. Other laws, presidential decrees, executive orders or rules
and regulations, or parts thereof inconsistent with the provisions of this Act
are repealed or modified accordingly.

Section 6. Effectivity. This Act shall take effect fifteen (15) days
following its publication in the Official Gazette or in any daily newspapers of
general circulation in the Philippines.

CRIMINAL PROCEDURE Pineda (2003) & Herrera (2007) notes
by Danika S. Santos (2-I) Page 6

An officer may use such degree of force which may be
reasonable necessary to arrest a criminal even to the extent of
harming the latter.

But the officer is not allowed to use violence or unnecessary
force to make an arrest.

Rationale: no one is above the law.

In making an arrest, the arresting officer or person should use
discretion and caution in effecting it. He should be humane.

If he uses force more than what is reasonably appropriate
under the circumstance, he virtually commits an act of
oppression.

Exception to the Non-Use of Force
- when it is reasonable necessary to hold the
offender.

If the offender resists, the officer may employ force when
necessary to secure and detain the offender, prevent his
escape, recapture him and overcome the resistance even to
the extent of taking life, if such is necessary.

However, the office is not justified to use violence or force
when no resistance is offered or when violence or force is
disproportionate to the degree of resistance.

However, a police officer is NOT required to afford the criminal
attacking him the opportunity for a fair and equal struggle. A
police officer, in performing his duty, must stand his ground
and cannot take refuge in flight.

Mere notoriety of the person to be arrested as a criminal is no
excuse to shoot him precipitately. Notoriety only provides a
basis for redoubled official alertness and vigilance; it can never
justify precipitate action at the cost of human life.

SECTION 3 DUTY OF ARRESTING OFFICER

Source
Section 3, Rule 113 of the 1985 Rules of Criminal Procedure
with the following amendment: by restyling the section which
was awkwardly worded before

Delivery Does Not Mean Physical Delivery
It means FILING OF AN INFORMATION AGAINST HIM
BEFORE THE PROPER COURT

Inception of Custodial Investigation
The moment the accused was arrested and brought to the
police station


SECTION 4 EXECUTION OF WARRANT

Source
Section 4, Rule 113 of the 1985 Rules of Criminal Procedure
with the following amendment: rewording of the section without
changing the essence of the old rule.


Period of Implementing the Warrant of Arrest
WOA shall be executed within 10 days from the receipt by the
head of the office to whom it was delivered for execution.
Ordinarily, in police departments, the office concerned is the
Warrant Division or Section.

After the lapse of 10 days, the concerned officer shall make a
report to the issuing judge. Officer shall explain the reason why
the warrant was not executed, if the officer failed to effect the
arrest. The period is just a directive to the officer.

WOA Does Not Expire
WOA does not become stale or functus oficio unlike a search
warrant which is valid only for 10 days
6
.

WOA is valid and effective until arrest has been made or the
warrant has been lifted by the court.


SECTION 5 ARREST WITHOUT WARRANT; WHEN
LAWFUL

Source
Section 5, Rule 113 of the 1985 Rules of Criminal Procedure
with the following amendment: changing Paragraph (b)
7
by the
incorporation of the phrase probable cause to believe based.

Basic Amendment in the Rule
The present rule removed the requirements that an offense
must have in fact been committed and more, it clarified that the
officers probable cause to believe must be based on his
personal knowledge of facts and circumstances tending to
prove that the person to be arrested has committed the crime.

Under the new amendment, the indubitable existence of a
crime is not necessary to justify a warrantless arrest.
The probable cause to believe that the person to be arrested
has committed the offense, must be based on the officers own
personal knowledge of facts and circumstances pointing to the
person arrested as the author of the crime.

Warrantless Arrest; Grounds are Limitative
The Section provides for 3 conditions or situations when a
warrantless arrest may be effected. Warrantless Arrest is one
where the act of arresting a person is done without any WOA
issued by a judge.

Not only a peace officer but also a private individual may effect
the arrest when any of the 3 situations enumerated in Section
is availing.
Citizens Arrest is the right of a private individual to arrest.

People v. Bati
HELD:
It is the considered view of the Court that there was
no need for Luciano and Caraan to be armed with a WOA

6
Section 10. Validity of Search Warrant a search warrant shall be valid
for 10 days from its date. Thereafter, it shall be void. (Rule 126, 2000 Rules
of Criminal Procedure)
7
The old rule provided:
a.) XXX
b.) When an offense has in fact just been committed, and he has
personal knowledge of facts indicating that the person to be
arrested has committed it (Sec.5, Rule 113, 1985 Rules)

CRIMINAL PROCEDURE Pineda (2003) & Herrera (2007) notes
by Danika S. Santos (2-I) Page 7

when they arrested Marquez and the accused since they has
personal knowledge of the actual commission of the crime. The
subsequent arrest of Marquez and accused were made under
the principle of hot pursuit.
The search on their persons are incidental to their
valid warrantless arrest. For the rule that searches and
seizures must be supported by a valid warrant is not absolute.
There are at least 3 exceptions: 1. Search incidental to an
arrest; 2. Search of a moving vehicle; and 3. Seizure of
evidence in plain view.

Rule on Arrest
General Rule: No arrest, search and seizure can be made
without a valid warrant issued by a competent judicial authority.
Exception: rule on warrantless arrest.

Restriction to Right to Arrest
Right to arrest without warrant cannot extend to other
situations outside of the 3 cases provided under Section 5, rule
113. That will be derogatory of the right of the peoples liberty.

A statute, rule or situation which allows exceptions to the
requirements of a WOA or search warrant must be strictly
construed.

The act of arresting and detaining a person without legal
ground constitutes a crime.
Arbitrary Detention if committed by a public officer
8

Illegal Detention if committed by a private person
9


DISCUSSIONS OF THE GROUNDS
1. When in his presence, the person to be arrested
has committed, is actually committing, or is
attempting to commit an offence, a.k.a.
FLAGRANTE DELICTO

Requisites of Flagrante Delicto (caught in the act)
a. The person to be arrested must execute an overt act
10

indicating that he has just committed, is actually
committing or is attempting
11
to commit the crime
b. Such overt at is done in the presence or within the
view of the arresting person

Rationale
To hold that no criminal can be in any case be arrested and
searched for the evidence and tokens of his crime without a
warrant, would be to leave society, to a large extent, at the
mercy of the shrewdest, the most expert, and the most

8
Art. 124, RPC
9
Art. 267, RPC
10
Overt act is a physical activity or deed, indicating the intention to commit
a particular crime, more than a mere planning or preparation, which if
carried to its complete termination following its natural course, without being
frustrate by external obstacles nor by the voluntary desistance of the
perpetrator, will logically and necessarily ripen into a concrete offense.
11
(RPC) Art. 6 Consummated, frustrated and attempted felonies A
felony is consummated when all the elements necessary for its execution
and accomplishment are present; and it is frustrated when the offender
performs all acts of execution which would produce the felony as a
consequence but which, nevertheless, do not produce it by reason of
causes independent from the will of the perpetrator.
There is an attempt when the offender commences the
commission of a felony directly by overt act, ad does not perform all the
acts of execution which should produce the felony by reason of some cause
or accident other that his own spontaneous desistance.
depraved of the criminals, facilitating their escape in many
instances.

Under the present rule, arrests can be effected also when
a person is just on the state of attempting to commit a
crime
The criminal acts must e externalized in overt physical acts of
the offender so that the same may be perceived by the sensory
faculties of the police officer or private person who is making
the warrantless arrest.

Presence is properly and strictly construed to relate to acts
taking place within the optical or perhaps auditory perception of
the arresting officer. (Umil v. Ramos)

A crime is committed in the presence or within the view of an
officer when the officer or private person sees the commission
of the offense, although at a distance, or hears the
disturbances created thereby and proceeds at once to the
scene thereof. (US v. Fortaleza)

It may be said that the requirement of the presence of the
peace officer is the substitute for the securing of a WOA.

Arrest in Buy-Bust Operations
In buy-bust operations, the offender commits an act in the
presence of the police of the officer.


2. When an offense has just been committed and the
peace officer or private person has a probable
cause to believe based on personal knowledge of
facts or circumstances that the person to be
arrested has committed it, a.k.a. HOT PURSUIT
ARRESTS
It can happen that an offense had already been committed but
not in the presence or within the view or hearing perception of
the peace officer or arresting private person. The offender is
not seen or caught in the act (flagrante delicto, 1
st
mode).
However, the officer must have direct knowledge or view of the
crime after its commission.

Basis of Hot Pursuit Doctrine
Based on the rule that arrest can be made without the WOA
when an offense has just been committed and the arresting
officer has probable cause to believe based on his personal
knowledge of facts or circumstances that a crime has just been
committed.

It is not necessary that the arresting person have direct
knowledge of the commission of the crime, but they must have
direct knowledge or view of the crime right after its
commission.

Significance of the phrase Has just been committed
It is not sufficient that a crime was indeed committed. It is
required that the said crime has just been committed. The
proximity of time of commission of the crime must be close to
the time of that arrest.

Probable Cause to believe
The is probable cause when there is reasonable suspicion that
a crime has been committed which is based in personal
knowledge of facts and circumstances that the person to be

CRIMINAL PROCEDURE Pineda (2003) & Herrera (2007) notes
by Danika S. Santos (2-I) Page 8

arrested has committed the crime coupled with good faith
12
on
the part of the arresting officer.

Probable Cause in Arrest presence of such facts or
circumstance within the personal knowledge of a police officer
which could lead a reasonable, discreet and prudent man to
believe that an offense has been committed by the person
sought to be arrested, and that the objects sought in
connection with the offense are in the place to be searched.

Personal Knowledge of Facts probable cause grounded on
reasonable belief that a crime had just been committed and the
person to be arrested is probably the perpetrator thereof.

Personal knowledge of facts in arrest without warrant must be
based upon probable cause which means an actual belief or
reasonable grounds of suspicion. Suspicion must be founded
in probable cause, coupled with good faith on the part of the
peace officer or private person making the arrest.

NB: the peace officer or private person effecting the arrest
cannot arrest any person without warrant based only on an
information.


3. When the person to be arrested is a prisoner who
has escaped from penal establishment or place
where he is serving final judgment or is
temporarily confined while his case is pending, or
has escaped while being transferred from one
confinement to another

Basis of this principle
Based on the principle that at the time of the arrest of the
escapee, he is in continuous act of committing a crime, that is,
evading the service of his sentence.

If the escapee is not serving a final judgment because his case
is still pending, by his escape he becomes a fugitive from
justice. He can also be arrested without WOA.

4 VIEWPOINTS OF PROBABLE CAUSE
1. Determination of probable cause to hold a person for
trial done by an investigating prosecutor or municipal
judge which is the exercise of an executive function
2. Determination of probable cause for the issuance of
WOA by a judge which is a judicial function
3. Determination of probable cause in effecting a
warrantless arrest by an arresting officer or private
person
4. Determination of probable cause in issuing a search
warrant


SECTION 6 TIME OF MAKING ARREST

Source
Reproduction of Section 6, Rule 113 of 1985 rule of Criminal
Procedure

Time of effecting arrest

12
Good faith may be shown by immediately bringing the arrested person to
the proper authorities for investigation.
Any day including Sundays and holidays and at any time of
the day or night.

WOA does not expire after the lapse of 10 days from its date;
remains valid until the ame is executed or lifted.


SECTION 7 METHOD OF ARREST BY OFFICER BY
VIRTUE OF A WARRANT

John Doe or Richard Doe WOA; Black WOA
John Doe or Richard Doe WOA is void unless there is
further description of the description personae as will justify an
officer to act under it.

A blank WOA without any description of the person to be
arrested is void.

WOA should particularly describe the person or persons to be
arrested.

Circular on J ohn Doe Informations
Department of Justice issued Circular No. 50 on October 29,
1990 involving John Doe informations directing the Prosecutor
as follows:
Henceforth, as a matter of policy of this Departmen,
whenever a complaint implicating a John Doe is fied, you are
hereby directed to:
1. Elicit from the witnesses other appropriate
descriptions to particularly describe a John Doe to
distinguish him or set him apart from others; and
2. To place a new name in the information in lieu of a
John Doe only when the description of this John
Doe as appearing in the sworn statement of a
witness substantially tallies with the description of the
persons placed in the John Does stead.

Formality Required by Section 7, Rule 113
When a peace officer is making an arrest he has to fulfill the
following duties:
1. Inform the arrestee of the cause of the arrest
2. Inform the arrestee of the fact that a WOA has been
issued against him
However, he may dispense with the said formality under the
following circumstances:
1. Arrestee flees
2. Arrestee forcibly resists before the officer has the
opportunity to so inform him
3. Giving of information will imperil or frustrate the arrest

Formality Mandatorily Required by Special Law
Under RA 7438
13
, the arresting public officer or employee, or
anyone acting under his order or in his place has the following
duties, as well as stiff penalties for its violation.

Constitutional Basis of RA 7438
Section 12, Article III of the 1987 Constitution

May the Arrestee Waive his Right to Have a Competent
and Independent Counsel
It cannot be waived except in writing and in the presence of
counsel
14
.

13
See footnote no. 5

CRIMINAL PROCEDURE Pineda (2003) & Herrera (2007) notes
by Danika S. Santos (2-I) Page 9


Effect of Violation of Procedure Laid Down in the Rule
Any statement in violation of procedure laid down in the rule,
whether exculpatory
15
or inculpatory
16
, in whole or in part, shall
be inadmissible as evidence.

Time to Question Irregularity of the Arrest
Any objection to any defect or irregularity attending in an arrest
must be made before the accused enters his plea.


SECTION 8 METHOD OF ARREST BY OFFICER
WITHOUT WARRANT

Arrest by a Peace Officer Without Warrant
The arresting officer shall inform the arrestee of the following:
1. authority of the arresting officer
2. Cause of the arrest
The officer may dispense with the above duty in the following:
1. Arrestee is then engaged in the commission of an
offense
2. Arrestee is pursued immediately after the committing
of the crime, has escaped
3. Arrestee has escaped after having been arrested
4. Arrestee flees
5. Arrestee forcibly resists the arrest
6. When the giving of information will imperil the arrest

Difference in Section 7 and 8 of the Rule
Section 8 requires the presentation of any evidence showing
the authority of the arresting officer like a badge or police
identification; Section 7 needs no such requirement because
the officer is already armed with WOA.


SECTION 9 METHOD OF ARREST BY PRIVATE PERSON

Arrest by Private Persons
Similar to the method of arrest by an officer without WOA
(Section 8)

Difference between Section 8 and 9
In Section 8, the officer shall inform the arrestee of the peace
officers authority; in Section 9 private person shall inform the
arrestee of the intention to arrest the arrestee.


SECTION 10 OFFICER MAY SUMMON ASSISTANCE

When Officer May Summon Assistance
Officer or officers may summon assistance as many persons
as is necessary to adequately assist the former in effecting the
arrest. The person or persons summoned shall aid the officer
or officers when assistance can be extended without detriment
to themselves.

NB: The arrests contemplated in this section are lawful arrests.


14
Section 12 (1), last sentence, Art. III, 1987 Constitution
15
Evidence favorable to the defendant in a criminal trial, which clears or
tends to clear the defendant of guilt
16
Evidence that shows or tends to show a persons involvement in an act,
or an evidence that can establish guilt.
Unlawful Arrest committed by any person, who in any case
other than those authorized by law or without reasonable
ground thereof shall arrest another for the purpose of
delivering to the proper authorities.
17


Status of a Person Answering to the Call of the Officer in
Need of Assistance
A person who comes to the aid of the peace officer who is an
agent of a person in authority becomes identified with the
peace officer and any one who resists him while aiding the
peace officer will be liable for the offense of indirect assault.
18



SECTION 11 RIGHT OF OFFICER TO BREAK INTO
BUILDING OR ENCOSURE

Applicability
Sections 11 and 12 apply only to peace officer. The word
authority is applied only to a public officer and does not apply
to private persons.


SECTION 12 RIGHT TO BREAK OUT FROM BUILDING
OR ENCLOSURE

Officers right to Liberate or Free himself
If the officer who entered into the building to arrest an offender
is himself detained or captivated he can break out therefrom
even with the use of force to liberate himself, provided, that he
shall not cause damage to the property more than what is
necessary for his liberation.


SECTION 13 ARREST AFTER ESCAPE OR RESCUE

Arrest After Arrestee has escaped or Rescued
Arrestee can be re-arrested by any person without the need of
WOA at any time and any where in the Philippines.

If the first arrest was unlawful, he cannot be re-arrested without
warrant.

Difference of Section 13 and Section 5
In Section 5, the one who escapes is a prisoner serving final
sentence, or a person temporarily confined while his case is
pending. In Section 13, the one who escaped is not a prisoner
nor is he facing a criminal charge in the court.


SECTION 14 RIGHT OF ATTORNEY OR RELATIVE TO
VISIT PERSON ARRESTED

Relative, meaning
RA 7438
19
enumerates the relatives who may visit or confer
with the arrested person, as follows:
The person's "immediate family" shall include his or
her spouse, fianc or fiance, parent or child, brother
or sister, grandparent or grandchild, uncle or aunt,
nephew or niece, and guardian or ward.

17
Art. 269, RPC
18
Art. 149, RPC
19
See footnote no. 5, Section 2 (f)

CRIMINAL PROCEDURE Pineda (2003) & Herrera (2007) notes
by Danika S. Santos (2-I) Page 10


Medical Doctor, Priest or Minister may also Visit and
Confer with the Arrested Person
RA 7438 states,
Any person who obstructs, prevents or prohibits any
lawyer, any member of the immediate family of a
person arrested, detained or under custodial
investigation, or any medical doctor or priest or
religious minister chosen by him or by any member of
his immediate family or by his counsel, from visiting
and conferring privately with him, or from examining
and treating him, or from ministering to his spiritual
needs, at any hour of the day or, in urgent cases, of
the night shall suffer the penalty of imprisonment of
not less than four (4) years nor more than six (6)
years, and a fine of four thousand pesos (P4,000.00).