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Crim

Pro
Midterms
Reviewer

C2016

CRIMINAL PROCEDURE MIDTERMS


REVIEWER | C 2016
Professor Sandra Marie Olaso-Coronel
Buenagua.Del Valle.Go.Lao.Leynes.Licaros.Villamin

W i t h m u c h g r a t i t u d e t o t h e C 2 1 0 5 C r i m i n a l P r o c e d u r e R e v i e w e r . I t m a d e
o u r l i v e s s o m u c h e a s i e r .

CRIMINAL PROCEDURE MIDTERMS REVIEWER | C 2016

Part One
Prosecution of Criminal & Civil Aspects of Offense and application for
Provisional Remedies
I.

Nature of actions arising from criminal act


A. Dual nature

RPC Art. 100. Civil liability of a person guilty of felony. Every person criminally liable for a felony is also civilly
liable.

B. Essential rights
1. Presumption of innocence

Burden of proof is with the state to prove the:


o Elements of the crime; and
o Culpability

2. Procedural due process


II.

Institution of actions arising from crime


A. Criminal Aspect
1. Generally

Rule 110, sec. 1. Institution of criminal actions. Criminal actions shall be instituted as follows:
(a) For offenses where a preliminary investigation is required pursuant to section 1 of Rule 112, by filing the complaint
with the proper officer for the purpose of conducting the requisite preliminary investigation.
(b) For all other offenses, by filing the complaint or information directly with the Municipal Trial Courts and Municipal
Circuit Trial Courts, or the complaint with the office of the prosecutor. In Manila and other chartered cities, the
complaints shall be filed with the office of the prosecutor unless otherwise provided in their charters.
The institution of the criminal action shall interrupt the running of the period of prescription of the offense
charged unless otherwise provided in special laws.
RJCL Section 11. Duties of a Person in Authority Taking a Child into Custody. - Any person taking into custody
a child in conflict with the law shall:
(a) Assign an alias to the child;
(b) Ensure that the blotter details containing the true name of the child, if any, are modified, to reflect the alias by
which the child shall be known throughout the proceedings;
(c) Explain to the child in simple language and in a dialect that can be understood the reason for placing the child
under custody, and the offense allegedly committed;
(d) Advise the child of his/her constitutional rights in a language or dialect understandable to the child;
(e) Present proper identification to the child;
(f) Refrain from using vulgar or profane words and from sexually harassing or abusing, or making sexual advances on
the child;
(g) Avoid displaying or using any firearm, weapon, handcuffs or other instrument of force or restraint, unless
absolutely necessary and only after all methods of control have been exhausted and have failed;
(h) Avoid violence or unnecessary force and refrain from subjecting the child to greater restraint than is necessary for
apprehension and custody;
(i) Ensure that a body search of the child is done only by a law enforcement officer of the same gender as that of the
child;
(j) Ensure expedited transfer of the child by immediately, or not later than eight (8) hours after apprehension, turning
over custody of the child to the local social welfare and development office or other accredited non-government
organizations;
(k) Notify the child's parents, guardians or custodians or in their absence, the child's nearest relative and the Public
Attorney's Office of the child's apprehension;
(l) Ensure that the child is not locked up in a jail or detention cell during the investigation;

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(m) Bring the child immediately to an available government medical or health officer for a thorough physical and
mental examination;
(n) Ensure that should detention of the child in conflict with the law be necessary, the segregation of the child be
secured in quarters separate from that of the opposite sex and adult offenders, except where a child is taken into
custody for reasons related to armed conflict, either as combatant, courier, guide or spy, and families are
accommodated as family units in which case, the child shall not be separated from the family;
(o) Record all the procedures undertaken in the initial investigation including the following: whether handcuffs or other
instruments of restraint were used, and if so, the reason for such use; that the parents or guardian of the child, the
Department of Social Welfare and Development, and the Public Attorney's Office were informed of the taking into
custody of the child and the details thereof; the measures that were undertaken to determine the age of child, and the
precise details of the physical and medical examination or in case of failure to submit a child to such examination, the
reason therefore; and
(p) Ensure that all statements signed by the child during the investigation are witnessed and signed by the child's
parents or guardian, social worker or legal counsel in attendance.

Who are the proper officers:


o Prosecutor
o Ombudsman
o Comelec

Repercussions of said rule:

A preliminary investigation is required for offenses where the penalty is at least four (4) years, two (2) months
and one (1) day. (Sec. 1 Rule 112, Rules of Court)

RTC has jurisdiction over offenses punishable with imprisonment of more than six (6) years.

No direct filing in the RTC


Interruption of the running of the prescriptive period

Filing of the complaint or information interrupts the period of prescription.


o
Filing of the complaint for preliminary investigation interrupted the running of the statute of limitations
(People v Olarte 1960)
o
The law does not specify that the complaint or information be filed in the proper court. Hence, filing with the
fiscals office interrupts the period of prescription.

The prescriptive period remains tolled until final judgement.

2. Venue and jurisdiction

BP 129 Section 20. Jurisdiction in criminal cases. Regional Trial Courts shall exercise exclusive original jurisdiction
in all criminal cases not within the exclusive jurisdiction of any court, tribunal or body, except those now falling under
the exclusive and concurrent jurisdiction of the Sandiganbayan which shall hereafter be exclusively taken cognizance
of by the latter.
BP 129 Section 32. Jurisdiction of Metropolitan Trial Courts, Municipal Trial Courts and Municipal Circuit Trial Courts
in criminal cases. Except in cases falling within the exclusive original jurisdiction of Regional Trial Courts and of the
Sandiganbayan, the Metropolitan Trial Courts, Municipal Trial Courts, and Municipal Circuit Trial Courts shall
exercise:
(1) Exclusive original jurisdiction over all violations of city or municipal ordinances committed within their respective
territorial jurisdiction; and
(2) Exclusive original jurisdiction over all offenses punishable with imprisonment not exceeding six (6) years
irrespective of the amount of fine, and regardless of other imposable accessory or other penalties, including the civil
liability arising from such offenses or predicated thereon, irrespective of kind, nature, value, or amount thereof:
Provided, however, That in offenses involving damage to property through criminal negligence they shall have
exclusive original jurisdiction thereof. (as amended by R.A, No. 7691)
Rule 110 Sec. 15. Place where action is to be instituted. - (a) Subject to existing laws, the criminal action shall be
instituted and tried in the court of the municipality or territory where the offense was committed or where any of its
essential ingredients occurred.

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(b) Where an offense is committed in a train, aircraft, or other public or private vehicle in the course of its trip, the
criminal action shall be instituted and tried in the court of any municipality or territory where such train, aircraft, or
other vehicle passed during its trip, including the place of its departure and arrival.
(c) Where an offense is committed on board a vessel in the course of its voyage, the criminal action shall be instituted
and tried in the court of the first port of entry or of any municipality or territory where the vessel passed during such
voyage, subject to the generally accepted principles of international law.
(d) Crimes committed outside the Philippines but punishable under Article 2 of the Revised Penal Code shall be
cognizable by the court where the criminal action is first filed.
RJCL Section 14. Conduct of Initial Investigation by the Police. - The police officer conducting the initial investigation
of a child conflict with the law shall do so in the presence of either or both of the parents, guardian or custodian, or in
their absence, the nearest relative of the child, the child's counsel of choice, or a lawyer from the Public Attorney's
Office, and the local social welfare officer. A representative of a non-government organization, religious group, or
member of the Barangay Council for the Protection of Children shall be allowed to be present at the investigation in
the absence of the parents, guardian, relative, or social welfare officer.
Venue vs Jurisdiction

Venue
Determined by the place where the criminal act
took place
Hinged on the principle of territoriality
Can be transferred:
o ART 2 RPC extra-territorial application of
some provisions of the RPC
o Supreme Court can, upon petition, transfer the
venue of the proceedings for purposed of
convenience,
security,
and
proper
administration of justice.

Jurisdiction
Defined as the power of the body to try, hear
and/or decide cases
Determined by BP 129
o MTC/MeTC/MCTC offenses punishable by
not more than 6 years, ordinance violations
o RTC everything else

Venue refers to territorial jurisdiction


o Meaning, location of where the offense was committed
Jurisdiction refers to the power of the courts to try and impose its will upon the parties. It is the power of the court
to exercise its prerogatives. A case can be heard even in a different venue as long as the court has jurisdiction.
Generally: in the court of the municipality or territory
o Where the offense was committed
o Where any of its essential ingredients occurred
o Three possible jurisdictions:

MTC/MCTC

Offenses punishable with imprisonment of six (6) years or less.

Violations of municipal ordinances

RTC

Offenses punishable with imprisonment of more than six (6) years.

Sandiganbayan

Sec 4 of RA 8249 states:

For offenses listed in Title 7, Book 2 of the Revised Penal Code.

Other offenses or felonies whether simple or complexed with other crimes committed
in relation to their office by the public officials and employees mentioned.

Violation of RA 7080 or the Plunder Law

Violation of RA 3019 or the Anti-Graft and Corrupt Practices Act


o As long as the offender is of salary grade 27 or higher.

If not, then penalty impossible will determine court with jurisdiction.


o Private persons conspiring with public officers
o Territorial jurisdiction of Sandiganbayan is the whole Philippines.
o Functions as several divisions, never as an en banc.
o Divisions rotate location throughout the year.

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People v. Lagon
FACTS: Estafa committed before new law, action after new law, jurisdiction is changed to higher court due to new law
penalty but it can only apply change to jurisdiction and not to the new penalty.
HELD: The jurisdiction of a court is not determined by what may be meted out to the offender after trial or by the
result of the evidence that would be presented in trial, but by the extent of the penalty that the law imposes for the
offense.

3. The complaint/information
Rule 110 Sec. 2. The complaint or information The complaint or information shall be in writing, in the name of the
People of the Philippines and against all persons who appear to be responsible for the offense involved.
Rule 110 Sec. 3. Complaint defined. A complaint is a sworn written statement charging a person with an offense,
subscribed by the offended party, any peace officer, or other public officer charged with the enforcement of the law
violated.
Rule 110 Sec. 4. Information defined. An information is an accusation in writing charging a person with an offense,
subscribed by the prosecutor and filed with the court.
In whose name and against whom filed

In the name of the People of the Philippines


o Private offended party:

May not appeal the dismissal of a criminal case or acquittal of an accused

May appeal the civil aspect of the case


o Only the OSG may appeal the dismissal of criminal case.
Against all persons who appear to be responsible for the offense involved
Complaint
Sworn written statement
o
Under oath
Subscribed:
o
Offended party
o
Any peace officer
o
Other public officer charged with the enforcement of the law violated
Information
Accusation in writing
o
Since subscribed by the prosecutor, prosecutor is acting under the oath of office

Subscribed:
o
Prosecutor
Filed with the Court
Complaint vs Information
Complaint is under oath because complainant is alleging facts that are personally known to him.
o
Information is not under oath because prosecutor has no personal knowledge of the facts stated.
Complaint filed pursuant to Rule 110, sec. 1(b) (which does not require a preliminary investigation) does not need
an information to be subsequently filed.
Peace officer includes police, NBI, Customs, PDEA.

4. Person prosecuting criminal action; intervention of offended party


Rule 110 Section 5. Who must prosecute criminal action. - All criminal actions either commenced by complaint or by
information shall be prosecuted under the direction and control of a public prosecutor. In case of heavy work schedule
of the public prosecutor or in the event of lack of public prosecutors, the private prosecutor may be authorized in
writing by the Chief of the Prosecution Office or the Regional State Prosecutor to prosecute the case subject to the
approval of the court. Once so authorized to prosecute the criminal action, the private prosecutor shall continue to
prosecute the case up to end of the trial even in the absence of a public prosecutor, unless the authority is revoked or
otherwise withdrawn.

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The crimes of adultery and concubinage shall not be prosecuted except upon a complaint filed by the
offended spouse. The offended party cannot institute criminal prosecution without including the guilty parties, if both
are alive, nor, in any case, if the offended party has consented to the offense or pardoned the offenders.
The offenses of seduction, abduction and acts of lasciviousness shall not be prosecuted upon a complaint
filed by the offended party of her parents, grandparents or guardian, nor, in any case, if the offender has been
expressly pardoned by any of them. If the offended party dies or becomes incapacitated before she can file the
complaint, and she has no known parents, grandparents or guardian, the State shall initiate the criminal action in her
behalf.
The offended party, even if a minor, has the right to initiate the prosecution of the offenses of seduction,
abduction and acts of lasciviousness independently of her parents, grandparents, or guardian, unless she is
incompetent or incapable of doing so. Where the offended party, who is a minor, fails to file the complaint, her
parents, grandparents, or guardian may file the same. The right to file the action granted to parents, grandparents, or
guardian shall be exclusive of all other persons and shall be exercised successively in the order herein provided,
except as stated in the preceding paragraph.
No criminal action for defamation which consists in the imputation of any of the offenses mentioned above
shall be brought except at the instance of and upon complaint filed by the offended party.
The prosecution for violation of special laws shall be governed by the provision thereof.
A criminal action is prosecuted under the direction and control of the public prosecutor
A criminal offense is an outrage against the sovereignty of the State
Appearance of a private prosecutor
Only allowed where the civil action for the recovery of the civil liability is instituted in the criminal action pursuant to
Rule 111 (sec. 16, Rule 110 Rules of Court)
o Hence, offended party may not intervene if the offended party:

Waives civil action

Reserves the right to institute separately, or

Institutes the civil action prior to the criminal action


Criminal action in the MTC or MCTC
Action under the direction and control of the prosecutor
o When the prosecutor is not available, the action may be prosecuted by (OCA Circular No. 39-2002,
August 21, 2002):

The offended party

Any peace officer

Public officer charged with the enforcement of the law violated


When a private prosecutor may prosecute a case even in the absence of the public prosecutor
If he is authorized to do so in writing
o Reasons to authorize:

Heavy work schedule

There is a lack of public prosecutors


Authority may be revoked or withdrawn by the public prosecutor
Adultery and Concubinage
No complaint from spouse; no case
Must be instituted against both guilty parties
The offended party must not have consented or pardon the offenders
o Consent or pardon may either be express or implied (rule does not distinguish)
Seduction, abduction, and acts of lasciviousness
Complaint can come from:
o Offended party
o Parents
o Grandparents
o Guardians
If there is an express pardon; no case (note: express only not implied)
If offended party dies and no known relative (listed above), the State may initiate the criminal action in her behalf.
Minor may initiate the case

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o If minor fails to initiate, minors:

Parents

Grandparents

Guardian
Defamation
Imputation of the offenses of:
o Adultery
o Concubinage
o Seduction
o Abduction
o Acts of lasciviousness
People v. Beriales
FACTS: Private prosecutor authorized to conduct the case for prosecution. Accused refused to plead during
arraignment because Fiscal not yet around. Trial court continued.
HELD: Even if there is a private prosecutor placed in charge, the fiscal must still be present and still supervise. If not,
evidence presented may not be admitted. Fiscal clearly not exercising control or supervision.

Republic v. Sunga
FACTS: Trial set 10 years after information was filed. Complainant filed an affidavit of desistance. Provincial Fiscals
move to reconsider the order of dismissal of the case was denied.
HELD: CFI can dismiss criminal cases based on an affidavit of desistance. However, any move on the part of the
complainant or offended party to dismiss the criminal case, even if without objection of the accused, should first be
referred to the prosecuting fiscal for his view on the matter.
People v. Ocapan
FACTS: Victim raped and prevented from leaving the accused home for a period of time. Accused charged with
complex crime of rape with serious illegal detention. Trial court dismissed the charge of rape on the ground that the
offended party had not filed a complaint.
HELD: Rape, at that time, was a private crime. It was necessary for the offended party to file a complaint first.
People v. Ilarde
FACTS: Husband filed a complaint for adultery against his wife and her lover. Before the information could be filed by
the Fiscal, the husband died. Case dismissed because the crime of adultery is not to be prosecuted except upon a
complaint filed by the offended party.
HELD: The desire of the offended party to bring his wife and her alleged lover to justice is amply demonstrated by the
affidavit filed with the Fiscals office, his filing for legal separation, and his disinheriting of her in his Last Will and
Testament. The affidavit had all the elements of a valid complaint.
People v. Madali
FACTS: During the course of the appeal of the accused-appellants, the complainant (the wife of the murder victim)
filed a Motion for Time to File Brief separate from that which the OSG would file by way of an answer to the brief of
the accused-appellants.
HELD: The complainant has an interest in the civil liability arising from the crime and may intervene.
Cf.
Crespo v. Mogul
FACTS: Fiscal filed information against Crespo. Undersecretary Macaraig directed the fiscal to move for immediate
dismissal of the information.
HELD: General principle is that the fiscal directs and controls the prosecution of criminal action. However, such power
is not without control or limitation. Secretary of Justice may direct that a motion to dismiss a case be filed in court.
However, Secretary should, as far as practicable, refrain from entertaining a petition for review or appeal from the
fiscal.

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Roberts v. CA
FACTS: Pepsi Number Fever
HELD: There is nothing in Crespo v. Mogul which bars the DOJ from taking cognizance of an appeal, by way of a
petition for review by an accused in a criminal case. Once a motion to dismiss or withdraw the information is filed, the
trial judge amy grant or deny it, not out of subservience to the Secretary of Justice, but in faithful exercise of judicial
prerogative.
Cf. Non-retroactivity of removal of complaint requirement in rape
People v. Galigao
FACTS: Accused allegedly raped three of his daughters.
HELD: RPC Art. 335 required a criminal complaint before an information could be filed, since rape was a private
crime then. RA 8535, making rape a crime against persons, cannot be applied retroactively.

i.

5. Form and content


a. Procedural
Name of accused and offended party
Rule 110 Sec. 7. Name of the accused. The complaint or information must state the name and surname of the
accused or any appellation or nickname by which he has been or is known. If his name cannot be ascertained, he
must be described under a fictitious name with a statement that his true name is unknown.
If the true name of the accused is thereafter disclosed by him or appears in some other manner to the court,
such true name shall be inserted in the complaint or information and record.
Rule 110 Sec. 12. Name of the offended party. The complaint or information must state the name and surname of
the person against whom or against whose property the offense was committed, or any appellation or nickname by
which such person has been or is known. If there is no better way of identifying him, he must be described under a
fictitious name.
Notes
All questions on identity must be done before plea.
Middle name is not required but is usually included for the practical purpose of better identification.
Whether true name, alias or mistaken name, what is important is the positive identification.
Amendment may be done in court.
People v. Guevarra
FACTS: The names of the accused were in the information. Alias included in the names.
HELD: Once the identity of the person and his alias had been reconciled, accused considered to have been properly
named. In this case, his real name had already also been identified.

ii.

Designation of offense
Rule 110 Sec. 8. Designation of the offense. The complaint or information shall state the designation of the offense
given by the statute, aver the acts or omissions constituting the offense, and specify its qualifying and aggravating
circumstances. If there is no designation of the offense, reference shall be made to the section or subsection of the
statute punishing it.
DOJ-NPS Manual, PART III SEC. 40. Designation of offense charged. - For offenses that are punishable under the
Revised Penal Code, the caption shall set forth the denomination of the offense and the specific article and paragraph
of the statute violated.
Where there is another charge or countercharge in the same case having one case number or in case of a
consolidated resolution involving two or more criminal cases with two or more docket numbers, the caption shall also
contain said information.
What to include in the designation of the offense
Name of the offense
o Name given to the offense by statute

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o If no name, then reference to the section or subsection punishing it.


Acts or omissions constituting the offense
Qualifying and aggravating circumstances

Effects of Certain Errors


Failure to state the name or section or subsection
o Does not vitiate the information

If the facts alleged clearly recite the facts constituting the crime charged (Malto v People,
September 21, 2007)
Failure to specify the correct crime
o The crime committed is determined by the recital of the ultimate facts and circumstances in the complaint
or information (Briones v People, June 5, 2009)
Failure to state the qualifying and aggravating circumstances
o Will not be considered in the final judgement, even if proven in court.
o It is not the words qualifying or qualified by that raises a crime to a higher category

But the specific allegation of an attendant circumstance

People v. Purisima
FACTS: 26 cases of violations for carrying bladed weapons.
HELD: Informations insufficient. Fact of carrying weapon included but not the motive which, in violations of P.D. 9 (3)
was an important element of the crime.
People v. Bauyaban
FACTS: Appellants entered a house, killed the owner, and forcibly took money from the persons inside. Information
charged the accused with [robbery in band with homicide.
HELD: No such crime as robbery in band with homicide. It should be robbery with homicide, with the ordinary
aggravating circumstance that it was committed in a band. However, aggravating circumstance cannot be appreciated
when it is not properly alleged in the information.
People v. Delim
FACTS: Victim taken from his home and later found dead. Trial court found accused guilty of murder and appreciated
taking advantage of superior strength, night time, and use of an unlicensed firearm as separate aggravating
circumstance.
HELD: What is primordial is that the specific intent of the malefactors as disclosed in the information or complaint is
determinative of what crime the accused is charged with. Also, although proven, aggravating circumstances not
alleged cannot be appreciated.
People v. Fernandez
FACTS: Tamaraw FX stolen by the group of the accused, driver killed.
HELD: Aggravating circumstance must be both alleged in the complaint and proven during trial.
People v. Masapol
FACTS: Accused raped the victim.
HELD: Though proved, circumstance was not alleged in the information cannot be appreciated.

iii.

Formal amendment
People v. Degamo
FACTS: Victim was raped. Later found to have become insane because of the incident.
HELD: Substantial amendment not allowed after arraignment. However, in this case, amendment was merely formal.
Amendment possible when the amendment, in this case the insanity, comes as a subsequent event.
Villaflor v. Vivar
FACTS: Original information was for slight physical injuries. It was amended when injuries later turned out to be more
serious.
HELD: The change was only formal and not substantial. A formal amendment cannot open a new investigation.

b. Substantive

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i.

Single offense
Rule 110 Sec. 13. Duplicity of the offense. A complaint or information must charge only one offense, except when
the law prescribes a single punishment for various offenses.
Duplicity of the offense
A complaint or information must charge only one offense
o
Except when the law prescribes a single punishment for various offenses
Failure to object
o
The court may convict him of as many offenses as are charged.
People v. Fernandez
FACTS: Two accused raped the victim one after the other.
HELD: Failure to raise objection to the duplicity of offenses alleged in the information constitutes a waiver.
People v. Lopez
FACTS: Accused was charged with attacking, assaulting and shooting two of the victims and of injuring another. Trial
court found the accused guilty of double murder with frustrated murder.
HELD: Information was formally defective as it charged more than one offense. However, because of his failure to file
for a motion to quash, the accused is deemed to have waived objection based on the ground of duplicity.

ii.

Cause of accusation
Rule 110 Sec. 9. Cause of the accusation. The acts or omissions complained of as constituting the offense and the
qualifying and aggravating circumstances must be stated in ordinary and concise language and not necessarily in the
language used in the statute but in terms sufficient to enable a person of common understanding to know what
offense is being charged as well as its qualifying and aggravating circumstance and for the court to pronounce
judgment.
Substantial matters of the information
The offense charged
Acts or omissions complained of as constituting the offense
o Must be sufficient to enable a person of common understanding to know what offense is intended to be
charged
Not necessarily in the language used in the statute
o Must allege clearly and accurately the elements of the crime charged
The qualifying and aggravating circumstances
US v. Chan Toco
FACTS: Accused caught smoking opium. However, information did not allege the exceptions (which allow) the
smoking of opium.
HELD: Information still valid. Proving that the act fell within the [exception\ is a burden of the defense. There is no
need to allege it in the information.
Balitaan v. CFI-Batangas
FACTS: Accused charged with estafa. Existence of checks used in the commission of the crime were not alleged in
the information.
HELD: It is fundamental that every element of the crime be alleged in the information. However, evidentiary matters
such as the existence of the checks are not required to be alleged in the information.
Matilde v. Jabson
FACTS: Accused were charged with qualified theft under PD 133. Information amended twice. Accused alleged that
not all elements were indicated.
HELD: That the things stolen were materials that the accused were working on is an element of PD 133. Since this
fact was not alleged, the information failed to allege all elements of PD 133.
People v. Gallo
FACTS: Victim was raped by her father.

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HELD: The relationship between the victim and the accused was not specifically alleged, although proven during trial.
It thus cannot be appreciated as a qualifying circumstance.
Vasquez v. CA
FACTS: Information was filed against the accused. Trial court found him guilty of libel. Accused states that the
information did not set out the entire news article as published.
HELD: General rule is that the information must set out the particular defamatory words verbatim and as published
and that the statement of their substance is insufficient. However, a defect in this regard may be cured by evidence.
People v. Llanto
FACTS: Victim was raped by her uncle.
HELD: It must be alleged in the information that the offender is a [relative by consanguinity or affinity [as the case
may be within the third civil degree. Such however was not alleged.

iii.

Date, Place and Time of Commission

Rule 110, Sec. 10, Place of Commission of Offense the complaint or information is sufficient if it can be understood
from its allegations that the offense was committed or some of its essential ingredients occurred at some pace within
the jurisdiction of the court, unless the particular place where it was committed constitutes an essential element of the
offense charged or is necessary for its identification
Rule 110, Sec. 11, Date of Commission of the Offense it is not necessary to state in the complaint or information
the precise date the offense was committed except when it is a material ingredient of the offense. The offense may be
alleged to have been committed on a date as near as possible to the actual date of its commission.
Date, Time and Place

The general rule is that specificity is not required.

However, if the date, place and time of the crimes commission is material, it must be specified

When is it material? constitutes an element of the offense, affects jurisdiction


o Date for determining the applicable law
o Place for establishment of jurisdiction, or an element of the offense (Robbery in an inhabited
house, public building, place of worship)
o Time an element of the offense (infanticide, degree of physical injuries), also for possibly
establishing the aggravating circumstance of being done in the nighttime

The purpose of stating the date, time and place of the commission of the offense is to inform the accused
of the nature of the accusation against him, and to show that the crime was committed within the
territorial jurisdiction of the court, and said court may take judicial notice that said place is within its
jurisdiction
o Failure to adequately inform the accused makes the information defective and could lead to the
information being quashed

For practicality, specify the date, time and place as much as possible in order to prevent the defense of
feigned ignorance (It is not clear to me when/where the offense being charged was committed, therefore it
could not have been me)
o Exact date/time/place is preferred, but the closest approximate, so long as enough to appraise the
accused as to when he was alleged to have committed the crime/where he committed the crime, is
sufficient

When it comes to the defense of alibi, the accuseds absence from the crime scene and presence in
another location must be documented. Furthermore, the testimony of a friend or relative regarding the
accuseds whereabouts is not enough to prove the alibi. More substantial evidence will be required.
People v. Lizada
Facts: Victim was raped by her mothers common law husband form August to November 1998. Four separate
informations were filed. The informations indicated the month and year.
Held: The precise date and time of the commission of the offense is not an element of the crime of rape. The
gravamen of the offense is the fact of carnal knowledge under any of the circumstances enumerated in the RPC.
People v. Ladrillo
Facts: Victim was raped by her cousin. The information alleged that it occurred on or about the year 1992

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Held: The designation of the time cannot be so indefinite and uncertain that it does not give the accused the
information required by law. On or about the year 1992 refers not only to the 12 months of 1992 but also those of
prior and subsequent years.
People v. Losano
Facts: The information alleged that the victim was raped by her father sometime in May 1995. The Accused claims
that based on the medico-legal reports, the rape occurred on August 1995.
Held: The date of commission of the crime is not an essential element of rape. Proof as to the time and date of the
commission need not correspond to the allegation in the information.
U.S. v. Javier Dichao
Facts: The information alleged that the rape of the 12 year-old girl occurred sometime between October 1910 to
August 1912.
Held: The time when the crime is alleged to have been committed is so indefinite and uncertain that it does not give
the accused the information required by law.
People v. Molero
Facts: The two informations filed against the father for the rape of his daughter allege different days of February of
succeeding years. The father is found guilty and subsequently files a motion to quash on the basis of double jeopardy
by the second information but was denied.
Held: The case was dismissed for no other reason than to correct the date of the crime. The precise time is not an
essential element of rape. The amendment was only a matter of form and did not prejudice the rights of the appellant.
People v. Lualhati
Facts: Information for rape alleges: that on or about the month of June, 1978, and for sometime prior and
subsequent thereto. The accused filed a motion to dismiss on the ground that the information charges him with
multiple offenses
Held: the defect was corrected by the attached complaint of the victim charging only against the rape committed on
the date stated. Discrepancies in the time of occurrence of the carnal copulations in rape do not affect any essential
right of the accused, where the acts occurred within the period of time alleged in both writings, and the difference
noted in other respects was of a formal (rather than substantial) character.
Rocaberte v. People
Facts: information for theft alleges its commission on or about the period from 1977 to December 28, 1983
Held: the variance in years (1977 to 1983) amounted to a violation of the accuseds constitutional right to be informed
of the cause of the accusation against him.
Cf. Need not be alleged
People v. Perez
Facts: Stabbing incident after a drinking session. The use of a bladed weapon was not alleged in the information.
Held: The kind or nature of the weapon used in the commission of the offense need not be alleged in the information

6. Suspension of criminal action by reason of Prejudicial Question


Rule 111, Sec. 6, Suspension by reason of Prejudicial Question A petition for suspension of the criminal action
based upon the pendency of a prejudicial question in a civil action may be filed in the office of the prosecutor or the
court conducting the preliminary investigation. When the criminal action has been filed in court for trial, the petition to
suspend shall be filed in the same criminal action at any time before the prosecution rests
Rule 111, Sec. 7, Elements of a Prejudicial Question The elements are:
A. The previously instituted civil action involves an issue similar or intimately related to the issue raised in the
subsequent criminal action
B. The resolution of such issue determines whether or not the criminal action may proceed
DOJ-NPS Manual, Part III, Sec. 23, Concept of Prejudicial Question - A prejudicial question is one the resolution
of which is a logical antecedent of the issue involved in a case and the cognizance of which pertains to another
tribunal. It is based on a fact distinct and separate from the crime charged but so intimately connected with it that it
determines the guilt or innocence of the accused. To suspend the criminal action, it must not only appear that said
case involves facts intimately related to those upon which the criminal prosecution would be based but also that in the

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resolution of the issue or issues raised in the civil case, the guilt or innocence of the accused would necessarily be
determined.
DOJ-NPS Manual, Part III, Sec. 24, Elements of a Prejudicial Question The essential elements are:
A. The civil action involves an issue similar or intimately related to the issue raised in the criminal action
B. The resolution of such issue determines whether or not the criminal action may proceed
C. The cognizance of the said issue pertains to another tribunal

What is a Prejudicial Question?

It pertains to an issue in a previously instituted civil case that is intimately related/closely connected to
an issue in a subsequently initiated criminal case
o When are they Intimately Related?

When the resolution of the issue in the civil case determines whether or not the
criminal case may proceed

The issues in both criminal and civil cases arise from the same set of facts

The resolution of the issue in the civil case establishes an element of the offense or
determines culpability

An issue which precedes the criminal action and which requires a decision before a final judgment can be
rendered in the criminal action with which said question is closely connected (Berbari v. Concepcion
Regalado)
Where and When to File for Suspension based on a Prejudicial Question?

Where to File
o Office of the Prosecutor
o Court Handling the Preliminary Investigation

When to File
o During the Preliminary Investigation (Upon filing of complaint)
o During the trial of the criminal action (in the same court handling the criminal case)

Note: May be filed before arraignment, whereby the arraignment is suspended as well
(Rule 116, Sec. 11(b))

Exception: Defense can no longer move for suspension of the case based on a prejudicial
question after it has presented its evidence (People v. Villamor Regalado)
When Prejudicial Question is not applicable?

Issues raised in Administrative Actions cannot be prejudicial to Criminal Actions against the same
person, for the same acts
o Therefore, acquittal in a criminal case does not acquit in an administrative case

Why? Standards of proof are different. Admin = substantial evidence, Crim = proof
beyond reasonable doubt
Marella-Bobis v. Bobis
Facts: Marella-Bobis (Wife) questions the decision of the RTC granting suspension of criminal proceedings against
Bobis (Husband) because of an alleged prejudicial question in the previously instituted civil proceeding for declaration
of nullity of marriage instituted by the Wife.
Held: NO Prejudicial Question. The RPC does not require the validity of the first marriage in the determination of
liability for Bigamy
Ark Travel Express v. Abrogar
Facts: Ark Travel filed a criminal complaint for false testimony in a civil case against respondents, alleging that
respondents gave false testimony upon a material fact in a civil case relative to a complaint for collection of sum of
money, torts and damages filed by Ark.
Held: The civil case is so intimately connected with the subject crime that it is determinate of the guilt or innocence of
the respondents in the criminal cases. The issue of whether or not the testimonies are false is a prejudicial question.
People v. Consing Jr.
Facts: A civil action for injunctive relief then a criminal case for estafa was filed against respondent, who filed a
motion to defer arraignment on the ground of prejudicial question.
Held: No Prejudicial Question. The civil action and the criminal action involved different issues.

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7. Remedies Available
a. Amendment/Substitution of Information
Rule 110, Sec. 14 a complaint or information may be amended, in form or in substance, without leave of court, at
any time before the accused enters his plea. After the plea and during the trial, a formal amendment may only be
made with leave of court and when it can be done without causing prejudice to the rights of the accused.
However, any amendment before plea, which downgrades the nature of the offense charged in or excludes
any accused from the complaint or information, can be made only upon motion by the prosecutor, with notice to the
offended party and with leave of court. The court shall state its reasons in resolving the motion and copies of its order
shall be furnished to all parties, especially the offended party.
If it appears at any time before judgment that a mistake has been made in charging the proper offense, the
court shall dismiss the original complaint or information upon the filing of a new one charging the proper offense in
accordance with Section 19, Rule 118, provided the accused would not be placed in double jeopardy. The court may
require the witnesses to give bail for their appearance at the trial.
DOJ-NPS Manual, Part III, Sec. 4, Effect of Amendment of Information In case an information is amended, a new
preliminary investigation shall be conducted if the amended charge is not related to the crime originally charged; if
there is a change in the nature of the crime charged; or if the information on its face is null and void for lack of
authority to file the same.
Amendment and Substitution of the Information

Either may be made in order to fix a defective information

Amendment
o Refers to the same offense in the original information
o Or may refer to an offense which necessarily includes or is necessarily included in the original
charge

Substitution
o Requires or presupposes a new crime in the information which does not include or is not included in
the original charge

With respect to Double Jeopardy


o For Amendments, only substantial amendments may put the accused in danger of double jeopardy
if they are done after arraignment (entering plea)
o Substitution cannot put the accused in double jeopardy because a new offense is being charged
with the previous charge being dropped
Amendment of the Information

Formal Amendment
o Changes in facts which do not constitute the offense, or do not affect the courts jurisdiction
o Examples:

Change to reflect true name

Change to reflect true crime being alleged

Substantial Amendment
o Changes in facts which constitute the offense and can thereby change its nature if modified, or facts
which determine the jurisdiction of the court
o A substantial matter in a complaint or information is the recital of facts constituting the offense
charged and determinative of the jurisdiction of the court. All other matters are merely of form
(Alemda v. Villaluz, Poblete v. Sandoval Regalado)
o Examples:

Changes in elements of the crime

Change of jurisdiction (determined by penalty)

Change of identity of the accused

Test, to know whether an amendment is Formal or Substantial (Teehankee v. Madayag) if answers


to both questions are YES, the amendment is formal.
1. WON the defense under the information, as it originally stood, would be equally
available after the amendment?

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2.

WON any evidence the accused might have would be equally applicable to the
information in the one form as in the other?
Regarding Aggravating Circumstances
o Notes: Changing/Adding/Removing Aggravating Circumstances to/from an information may be
either formal of substantial amendments, depending on how well it is argued in the pleading

There is no hard and fast rule, only guidelines

So long as it is not prejudicial to the accused

So long as the circumstances do not change the nature of the crime


o Notes: regardless of presence or absence of Aggravating Circumstances, Information still valid if it
complies with all other forms required by the rules

When to Amend or Substitute?

Both may be availed of before or after the accused has entered his plea

Before plea
o Amendment may be effected without leave of court

If Substantial, accused is entitled to another preliminary investigation


o Substitution must be with leave of court as the original information has to be dismissed

After plea
o Formal Amendments are the only amendments allowed by the court provided

Leave of court is obtained

Such amendment is not prejudicial to rights of the accused


o Substantial Amendments can no longer be availed of (double jeopardy)
o Substitution must be with leave of court either way
o The second paragraph of Sec. 14, Rule 110 provides for amendments after plea by motion of the
prosecutor, with notice to the offended party, when:
1. It downgrades the offense charged
2. It excludes any accused from the complaint/information

b. Motion to Quash
Rule 117, Sec. 3, Grounds The accused may move to quash the complaint or information on any of the following
grounds:
1. The facts charged do not constitute an offense
2. The court trying the case has no jurisdiction over the offense charged
3. The court trying the case has no jurisdiction over the person of the accused
4. The officer who filed the information had no authority to do so
5. That it does not conform substantially to the prescribed form
6. That more than one offense is charged except when a single punishment for various offenses is prescribed
7. That the criminal action or liability has been extinguished
8. The it contains averments which, if true, would constitute a legal excuse or justification; and
9. That the accused has been previously convicted or acquitted of the offense charged, or the case against him
was dismissed or otherwise terminated without his express consent
Rule 117, Sec. 4, Amendment of Complaint or Information if the motion to quash is based on an alleged defect of
the complaint or information which can be cured by amendment, the court shall order that an amendment be made.
If it is based on the ground that the facts charged do not constitute an offense, the prosecution shall be given by the
court an opportunity to correct the defect by amendment. The motion shall be granted if the prosecution fails to make
the amendment, or the complaint or information still suffers from the same defect despite the amendment.
What is a Motion to QUASH?

It is a document filed by the accused for the purpose of invalidating the information

All grounds alleged in the motion should refer to defects in the contents of the information which render it
invalid
Effects of a Motion to Quash

With respect to the prosecution - Granting the motion to quash allows the prosecutor to fix the invalid
information
1. By amendment

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There is no specific limit to the number of amendments that may be made to correct an invalid
information, but only up to the extent that the court will allow
2. By substitution or filing a new one
UNLESS, the information was quashed for either:
1. Double Jeopardy
2. Extinguishment of criminal liability
With respect to the accused Court is authorized to issue the order quashing the information and ordering
the filing of a new information
o IF no information is filed within a period of time (discretion of court), accused must be
released
o Accused may continue to be detained UNLESS he posts bail

Cf. Rule 119, Sec. 19, When mistake has been made in charging the proper offense When it becomes manifest at
any time before judgment that a mistake has been made in charging the proper offense and the accused cannot be
convicted of the offense charged or any other offense necessarily included therein, the accused shall not be
discharged if there appears to be good cause to detain him. In such case, the court shall commit the accused to
answer for the proper offense and dismiss the original case upon the filing of the proper information.
Cruz v. CA
Facts: Informations for estafa through falsification of documents were filed. Motion to dismiss was filed on ground that
the informations did not charge an offense.
Held: A complaint/information must state every fact necessary to constitute the offense charged. The fundamental
test in considering a motion to quash on this ground is whether the facts alleged, if hypothetically admitted, will
establish the essential elements of the offense as defined in law

c. Bill of Particulars
Rule 116, Sec. 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 of information
and the details desired

d. Provisional Remedies
Rule 127, Sec. 1, Availability of Provisional Remedies the provisional remedies in civil actions, insofar as they
are applicable, may be availed of in connection with the civil action deemed instituted with the criminal action
Rule 127, Sec. 2, Attachment when the civil action is properly instituted in the criminal action as provided in Rule
111, the offended party may have the property of the accused attached as security for the satisfaction of any
judgment that may be recovered from the accused in the following cases:
a. When the accused is about to abscond from the Philippines
b. When the criminal action is based on a claim for money or property embezzled or fraudulently misapplied or
converted to the use of the accused who is a public officer, officer of a corporation, attorney, factor, broker,
agent or clerk, in the course of his employment as such, or by any other person in a fiduciary capacity, or for
a willful violation of duty
c. When the accused has concealed, removed, or disposed of his property, or is about to do so
d. When the accused resided outside the Philippines
Rule 57 Preliminary attachment
Rule 58 Preliminary Injunction: an order granted at any stage of the proceeding prior to the judgment, requiring a
party or a court, agency or a person to refrain from a particular act or acts. It may also require the performance of a
particular act or acts in which case it shall be known as a preliminary mandatory injunction

B. Civil Aspect
1. Generally

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Rule 111, Sec. 1, Institution of the Criminal Action and Civil Actions When a criminal action is instituted, the civil
action for the recover of civil liability arising from the offense charged shall be deemed instituted with the criminal
action unless the offended party waives the civil action, reserves the right to institute it separately or institutes the civil
action prior to the criminal action.
The reservation of the right to institute separately the civil action shall be made before the prosecution starts
presenting its evidence and under the circumstances affording the offended party a reasonable opportunity to make
such reservation.
When the offended party seeks to enforce civil liability against the accused by way of moral, nominal,
temperate, or exemplary damages without specifying the amount thereof in the complaint of information, the filinf fees
therefor shall constitute a firs lien on the judgment awarding such damages.
Where the amount of damages, other than actual, is specified in the complaint of information, the
corresponding filing fees shall be paid by the offended party upon the filing thereof in court
Except as otherwise provided in these Rules, no filing fees shall be paid by the offended party upon the filing
thereof in court.
Except as otherwise provided in these rules, no filing fees shall be required for actual damages.
No counterclaim cross-claim or third-party complaint may be filed by the accused in the criminal case, by any
cause of action which could have been the subject thereof may be litigated in a separate civil action.
RJCL, Sec. 12 When a criminal action is instituted against a juvenile in conflict with the law, the action for recovery
of civil liability arising from the offense charged shall be governed by Rule 111 of the Revised Rules of Criminal
Procedure
Notes:

General Rule: The civil action for recovery of civil liability arising from the offense charged is impliedly
instituted

Exceptions: a. Offended party waives the civil action b. reserves the right to institute it separately c.
institutes the civil action prior to the criminal action

An offended party cannot claim damages twice for the same act or omission.
Comparison of a Criminal action to a Civil action: Theoretically, the criminal case is faster than the civil case, but
the accused needs to be arraigned. Once the accused has escaped, the criminal case cannot proceed. A civil case
can continue even if the person is hiding. There are docket fees for a civil action.
2. Suspension of separate civil action
Rule 111, Sec. 2, When separate civil action is suspended after the criminal action has been commenced, the
separate civil action arising therefrom cannot be instituted until final judgment has been entered in the criminal action
If the criminal action is filed after the said civil action has already been instituted, the latter shall be
suspended in whatever stage it may be found before judgment on the merits. The suspension shall last until final
judgment is rendered in the criminal action. Nevertheless, before judgment on the merits is rendered in the civil action,
the same may upon motion of the offended party, be consolidated with the criminal action in the court trying the
criminal action.
In case of consolidation, the evidence already adduced in the civil action shall be deemed automatically
reproduced in the criminal action without prejudice to the right of the prosecution to cross examine the witnesses
presented by the offended party in the criminal case and of the parties to the present additional evidence. The
consolidated criminal and civil actions shall be tried and decided jointly.
During the pendency of the criminal action, the running of the period of prescription of the civil action which
cannot be instituted separately or whose proceeding has been suspended shall be tolled.
The extinction of the penal action does not carry with it extinction of the civil action. However, the civil action
based on delict may be deemed extinguished if there is a finding in a final judgment in the criminal action that the act
or omission from which the civil liability may arise did not exist.
Cf. Suspension by reason of prejudicial question
Rule 111, Sec. 6 Supra
Rule 111, Sec. 7 Supra

3. Independent Civil Actions

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Rule 111, Sec. 3, When civil action may proceed independently In the cases provided in Articles 32, 33, 34 and
2176 of the Civil Code, the independent civil action may be brought by the offended party. It shall proceed
independently of the criminal action and shall require only a preponderance of evidence. In no case, however, may
the offended party recover damages twice for the same act or omission charged in the criminal action.

4. Effect of Death on Civil Actions


Rule 111, Sec. 4 the death of the accused after arraignment and during the pendency of the criminal action shall
extinguish the civil liability arising from the delict. However, the independent civil action instituted under Sec. 3 of this
rule or which thereafter is instituted to enforce liability arising from other sources of obligation may be continued
against the estate or legal representative of the accused after proper substitution or against said estate, as the case
may be. The heirs of the accused may be substituted for the deceased without requiring the appointment of an
executor or administrator and the court may appoint a guardian ad litem for the minor heirs.
The court shall forthwith order said legal representative or representatives to appear and be substituted
within a period of thirty days fro notice.
A final judgment entered in favor of the offended party shall be enforced in the manner especially provided in
these rules for prosecuting claims against the estate of the deceased.
If the accused dues before arraignment, the case shall be dismissed without prejudice to any civil action the
offended party may file against the estate of the deceased.
5. Effect of Judgment on Civil Action in Criminal Action
Rule 111, Sec. 5 a final judgment rendered in a civil action absolving the defendant from civil liability is not a bar to
a criminal action against the defendant for the same act or omission subject of the civil action.
RPC, Art. 100-113

Possible Exam Questions:


1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.

What is the jurisdiction of the MTC, MCTC, RTC and Sandiganbayan?


Compare venue and jurisdiction
Define Attachment
What are independent civil actions?
How are criminal actions instituted?
State the effect of the filing of a criminal action on the period of prescription of offenses
Fundamental requirements in the designations of the offense charged.
Compare complaint and information
What are private crimes?
Difference between a formal and substantial amendment
What is a prejudicial question and what are its elements?

Part Two
Search and Seizure
I.

Nature, Scope and Definition


A. Definition

Rule 126, Sec. 1, Search warrant defined a search warrant is an order in writing issued n the name of the People of
the Philippines, signed by a judge and directed to a peace officer, commanding him to search for personal property
described therein and bring it before the court
Rule 126, Sec. 13, Search incident to lawful arrest a person lawfully arrested may be searched for dangerous
weapons or anything which may have been used or constitute proof in the commission of an offense without a search
warrant

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Stonehill v. Diokno
Facts: The court issued 42 search warrants, ordering police officers to search the offices and homes of the petitioners
and seize all objects described as "the subject of the offense; stolen or embezzled and proceeds or fruits of the
offense," or "used or intended to be used as the means of committing the offense," in "violation of Central Bank Laws,
Tariff and Customs Laws, Internal Revenue (Code) and the Revised Penal Code."
Held: The warrants are in the form of general warrants. The Constitution provides for a persons right to be free from
unreasonable searches and seizures, and no search warrant shall issue except (1) upon probable cause and (2) that
the warrant shall particularly describe the things to be seized. Failing these requisites, anything seized pursuant to a
general warrant shall be inadmssible as evidence
Notes: in addition to the invalidity of the warrant for being general in its description of the things to be seized, the
service of the warrant in this case was likewise illegal. The effects of illegal service of search warrants is not limited to
exclusion. It also imposes liability upon the officer who served the warrant.
People v. Marti
Facts: the shipping handler, upon executing a routine check of respondents package to be sent abroad found that it
contained blocks of marijuana, as confirmed by the NBI.
Held: the constitutional protection against unreasonable searches and seizures refers to the immunity of ones person
from interference by government; it does not extend to acts committed by private individuals.
Notes: the doctrine of people v marti has been refined to limit the exception when the private individual initiates a
search at the instigation of government agencies or officers. Evidence obtaines becomes inadmissibile in that case.
Search and Seizure Elaborated

Notes: from the constitutional provision, the general rule is that searches and seizures are not allowed,
period. The presumption is that all searches and seizures are unreasonable. The only times searches and
seizures are reasonable are:
o Search with a Warrant

Presumption shifts to validity of the warrant and, hence, validity of the search

Requisites for validity


1. Written
2. In the name of the People of the Philippines
3. Directed at Peace Officers
4. Signed by the judge
5. Ordered to search for evidence and bring it to court
6. Only personal property
o Certain valid searches without a warrant

Pursuant to Lawful Arrest

Consented

In Plain View

Stop & Frisk

Search of Moving Vehicles

Customs Searches

In Exigent or Emergency Circumstances


In the name of the People of the Philippines

This means that it has to be in connection with a criminal case/suspected offense

The warrant contains the name of the owner of the premises to be searched, not the name of the person
subject of the criminal case
o The rules do not limit the government to search only the property of the accused
Peace

Officers
PNP and NBI
Customs Officers
PDEA (given authority by the Supreme Court) no longer civillians

To Search for evidence and bring it to court

Police officers are required to make a Return


o What if the objects seized cannot be brought to Court? take pictures

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Only Personal Property

The search is executed upon Real Property but what is siezed is Personal Property

Subject to limitations under Rule 127, Sec. 3


The Purpose of Searches and Seizures

OC Says: ideally, we should obtain evidence first before a person is arrested but this is not always the case
when police officers prefer expediency. Hence, the need to teach them proper procedure
Phases of a Search & Seizure operation

Application for Search Warrant


o Defenses available mostly pertain to requisites for validity of the warrant
o OC Says: Harder to prove since you will be going up against the judge, which is almost always a
bad move

Service of Search Warrant


o Defenses available mostly pertain to errors by policemen while conducting the search itself
o OC Says: much easier to win :D

B. Constitutional and Statutory boundaries; limitation on State action


1. Nature of Right protected; waiver of protected right
Constitution (1987) Art. III, Sec. 2 the right of the people against unreasonable searches and seizures, of
whatever nature and for any purpose, shall be inviolable and no search warrant or warrant of arrest shall issue except
upon probable cause to be determined personally by the judge after examination under oath or affirmation of the
complainant and the witnesses he may produce, and particularly describing the place to be searched, and the
persons or things to be seized.
Katz v. US
Facts: Katz was charged and convicted of transmitting gambling information via telephone booth. FBI agents
obtained evidence against him by placing listening and recording devices inside the booth.
Held: A person is entitled to assume that the words he utters into the mouthpiece of a phone will not be broadcast to
the world. The Fourth amendment protects persons, not places.
Notes: the right against unreasonable search and seizure is not limited by physical space. It includes privacy,
correspondence and communication. Neither is it limited by location.
Villanueva v. Querubin
Facts: Villanuevas residence was raided by police officers on the strength of a warrant, wherein P10, 350 was seized
but not deposited to the Court. It was released to him under the condition that it be returned to the Court upon
demand. Petitioner now assails validity of the order to return the money to the Court, saying he has already spent it.
Held: The constitutional right against unreasonable searches and seizures refers to the immunity of ones person
from interference by government, including ones residence, papers and possessions. But this does not preclude a
search in ones home and the seizure of ones papers as long as the element of reasonableness is not lacking.
OC Says: it is important that the Court recognized the money as evidence because of its inherent fungibility. Once
money is declared as evidence, it is no longer fungible because it takes on a unique character important to the
criminal action.
OC Says: the issue on the validity of the warrant was not raised and therefore it was presumed valid. Distinguish
between validity of the document and the validity of service since they are two separate defenses.
People v. Marti (supra)
Held: The constitutional protection against unreasonable searches and seizures do not apply to private individuals
Guanzon v. De Villa
Facts: Military and police officers were conducting target zoning and saturation drives in critical areas in Metro
Manila, in an attempt to capture insurgents. The suspected insurgents were arrested without warrants.
Held: It is not police action which is impermissible but, rather, the procedure in executing such actions. The
individuals right to immunity from such invasion of his body was considered as far outweighed by the value of its
deterrent effect on the evil sought to be avoided by the police action.

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OC Says: the right against unreasonable search and seizure can trump the exercise of police power
Rule 126, Sec. 13, Warrantless search pursuant to lawful arrest supra

2. Scope of Protection
Constitution (1987), Art. III, Sec. 3 (1) the privacy of communication and correspondence shall be inviolable
except upon lawful order of the court, or when public safety or order requires otherwise, as prescribed by law.
(2) Any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any
proceeding.
Burgos v. Chief of Staff
Facts: Search warrants were issued to search the offices of Metropolitan Mail and We Forum. The said
newspapers were searched and printing machines, equipment, paraphernalia, motor vehicles, and other vehicles
were seized.
Held: A search warrant against a publisher must particularize the alleged criminal or subversive material to be seized.
Mere generalization will not suffice. Also, Section 2, Rule 126 ROC does not require that the property seized should
be owned by the person against whom the search warrant is directed. It is sufficient that the person against whom the
warrant is directed has control or possession of the property sought to be seized.
Katz v. US (supra)
Held: The fourth amendment protects persons, not places. The right to be secure in ones person from interference
by the government is not limited by location.
RA 4200 An act to prohibit and penalize wire-tapping and other related violations of the Privacy of Communication
and for other purposes

Summary (C-2015): it shall be unlawful for any person, not being authorized by all parties to a private
conversation, to tap any wire or cable, to secretly overhear such communication. It shall also be unlawful for
any person to knowingly possess tape record, wire, disc, or any other record of any communication secured
in the manner prohibited by law or to replay the same. Anything obtained in violation of this act shall be
inadmissible as evidence in any judicial, quasi-judicial, legislative or administrative hearing or investigation

Types
1. Through Search Warrant
A. Generally
Rule 126, Section 1. Search warrant defined. A search warrant is an order in writing issued in the name of the
People of the Philippines, signed by a judge and directed to a peace officer, commanding him to search for personal
property described therein and bring it before the court.
Notes: Generally, searches are not allowed. The exception is when it is done with a search warrant. The exception to
the exception is a search incident to a lawful arrest.
-
Not a criminal action nor does it represent a commencement of a criminal prosecution even if it is entitled like
a criminal action.
-
Not a proceeding against a person but is solely for the discovery and to get possession of personal property.
-
Search Warrant is not a sweeping authority empowering a raiding party to undertake a fishing expedition to
confiscate any and all kinds of evidence or articles relating to a crime.
-
Peace officers file an application for search warrants.
Exceptions to the Rule against warrantless search and seizure (Manalili v CA)
1. Search incidental to a lawful arrest
2. Search of a moving vehicle
3. Seizure in plain view
4. Customs search
5. Consented search (rights waived)
6. Stop and Frisk
7. Exigent and emergency circumstances

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Requirement of a search warrant:
1. In writing
2. In the name of the People of the Philippines
3. Signed by a judge
4. Directed to a peace officer
Note: There can be a difference in the person subject of the warrant. Rules do not limit the powers of the government
to search. Even if you are not involved in the criminal case, they can search you. It does not require that the subject of
the warrant is the accused.
Only personal property can be subject of a search warrant:
-
The objective is to deliver these items to the court/disposal of the court custodia legis
People v Aruta
Facts: Accused was apprehended by the police, carrying a bag which was found to contain dried marijuana leaves on
a plastic bag marked Cash Katutak. The defense alleged that the search and seizure was illegal for the police were
not armed with a search warrant.
Held: The plain import of the language of the Constitution is that searches and swizures are normally unreasonable
unless authorized by a validly issued search warrant or warrant of arrest. In this case, no warrant and the case did not
fall under any of the exceptions to a warrantless search.
Manalili v CA
Facts: Police Officers were conducting surveillance on the information that drug addicts were roaming the area.
Policemen apprehended Manalili who appeared high on drugs. He was found to have marijuana residue in his wallet.
Held: The search was valid, being akin to a stop and frisk. There are instances where a search and seizure can be
effected without it necessarily being preceded by an arrest, one of which is the stop and frisk.

B. Venue of Application; Jurisdiction of the Court


Rule 126, Section 2. Court where application for search warrant shall be filed. An application for search warrant
shall be filed with the following:
a) Any court within whose territorial jurisdiction a crime was committed.
b) For compelling reasons stated in the application, any court within the judicial region where the crime was
committed if the place of the commission of the crime is known, or any court within the judicial region where the
warrant shall be enforced.
However, if the criminal action has already been filed, the application shall only be made in the court where the
criminal action is pending. (n)
Two possible issues of jurisdiction:
1. Where the crime was committed
2. Where the property to be searched is located (because they can move this anytime)
3. Exception: if the criminal case has been instituted, it will be in the court where the criminal case is pending.
SC AM No. 99-20-09-SC
-
Executive Judge and Vice Executive Judge of RTCs of Manila and QC can issue warrants outside of its
jurisdiction:
o For heinous crimes, illegal gambling, dangerous drugs, illegal possession of firearms
o For certain good reasons or where judges with jurisdiction will be reluctant to issue search warrant
because if the hostile environment/safety reasons)
Application and Issuance of a Search Warrant
1. Peace officer files an application for search warrant with the court.
2. The judge personally examines the applicant and his witnesses.
a. The examination is done via searching questions and answers, in writing and under oath.
b. The private complainant who has filed a complaint with the police may become a witness.
c. The examination of the complainant would include questions with respect to the implementation of
the warrant, which only the peace officer can answer.
3. Upon finding of probable cause, the judge issues the search warrant.

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Who are peace officers?
-
They are not just the police. But essentially, they are composed of Police, NBI, Customs, PDEA (just
recently) and Task Forces.
-
They apply for the issuance of the search warrant because they are applying to be issued/vested authority to
make the search.
Service of a Search Warrant
1. The peace officer goes to the place to be searched, armed with the search warrant.
2. He introduces himself and announces his purpose.
a. If he is not allowed to enter, he may break into the place.
3. He proceeds to search the place.
a. Searches may only be done during the day, unless otherwise specified in the warrant.
b. Searches may only be done in the presence of residents or at least two witnesses from the same
area.
4. After the search, the peace officer gives a receipt to the resident of the place, or leaves the receipt where the
object seized was found.
a. The receipt has to be signed by the resident.
5. The peace officer makes a return to the court.
a. The return must specify in detail the items seized or else it is subject to exclusion.
Note: In applying for a search warrant, there is no need to serve the pleading on the opposing party. This is an
exception to the general rule that all parties must be served because of the possibility that the evidence sought to be
seized will be removed in the place sought to be searched, such that the search would be valid but would yield
negative results.
Malaloan v CA
Facts: Police Officers applied for a search warrant in Kalookan City and used the same in an offense allegedly
committed in Fairview, Quezon City. Malaloan moved to quash the search warrant but was denied.
Held: A branch of an RTC has the authority to issue a warrant for the search of a place outside its territorial
jurisdiction. A search warrant is merely a judicial process designed by the Rules to respond only to an incident in the
main case, if one has already been instituted or in anticipation thereof.
Policy Guidelines in the issuance of search warrants (Malaloan v CA)
1. The court wherein the criminal case is pending shall have primary jurisdiction to issue search warrants
necessitated by and for purposes of said case. An application for a search warrant may be filed with another
court only under extreme and compelling circumstances that the applicant must prove to the satisfaction of
the latter court which may or may not give due course to the application depending on the validity of the
justification offered for not filing the same in the court with primary jurisdiction thereover.
2. When the latter court issues the search warrant, a motion to quash the same may be filed in and shall be
resolved by said court, without prejudice to any proper recourse to the appropriate higher court by the party
aggrieved by the resolution of the issuing court. All grounds and objections then available, existent or known
shall be raised in the original or subsequent proceedings for the quashal of the warrant, otherwise they shall
be deemed waived.
3. Where no motion to quash the search warrant was filed in or resolved by the issuing court, the interested
party may move in the court where the criminal case is pending for the suppression as evidence of the
personal property seized under the warrant if the same is offered therein for said purpose. Since two
separate courts with different participations are involved in this situation, a motion to quash a search warrant
and a motion to suppress evidence are alternative and not cumulative remedies. In order to prevent forum
shopping, a motion to quash shall consequently be governed by the omnibus motion rule, provided,
however, that objections not available, existent or known during the proceedings for the quashal of the
warrant may be raised in the hearing of the motion to suppress. The resolution of the court on the motion to
suppress shall likewise be subject to any proper remedy in the appropriate higher court.
4. Where the court which issued the search warrant denies the motion to quash the same and is not otherwise
prevented from further proceeding thereon, all personal property seized under the warrant shall forthwith be
transmitted by it to the court wherein the criminal case is pending, with the necessary safeguards and
documentation therefor.
5. These guidelines shall likewise be observed where the same criminal offense is charged in different
informations or complaints and filed in two or more courts with concurrent original jurisdiction over the
criminal action. Where the issue of which court will try the case shall have been resolved, such court shall be

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considered as vested with primary jurisdiction to act on applications for search warrants incident to the
criminal case.
People v CA
Facts: Judge of RTC Quezon City issued a search warrant against Hussain who allegedly had in his possession
firearms and explosives at Abigail Store. Quashal of Warrant was granted by the Judge of RTC San Jose del Monte,
Bulacan.
Held: Where a search warrant is issued by one court and the criminal action based on the results of the search is
afterwards commenced in another court, the motion to quash may be filed for the first time in either the issuing Court
or that in which the criminal action is pending. However, the remedy is alternative, not cumulative. The Court first
taking cognizance of the motion does so to the exclusion of the other (following the third policy guideline in Malaloan)

C. Requisites of Issuance
1987 Constitution, Article III, Section 2. The right of the people to be secure in their persons, houses, papers, and
effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and
no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the
judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and
particularly describing the place to be searched and the persons or things to be seized.
PICO v Asuncion
Facts: Police Chief Pascua applied for a search warrant against PICO because the company possessed high
powered firearms, ammunition and explosives in violation of PD 1866. Attached to the application were the
statements of SPO3 Bacolod, SPO2 Morito, Mario Enad and Felipe Moreno. Judge Asuncion issued the warrant after
questioning Bacolod.
Held: Search warrant invalid. Judge merely relied on affidavits. Only Bacolod was questioned and even he did not
have personal knowledge of the circumstances. Further, the place to be searched was not described with particularity.
Search warrant only said PICO compound.

i.

Concept of Probable Cause in search warrants

Probable cause for the purposes of issuing a search warrant:


It is the amount of evidence that has to be presented for the judge to believe:
1. There is an offense.
2. Item sought to be searched for are in the place.
3. Item sought to be seized are connected to the offense. (object/fruit of the crime/used in the offense)
Absent any of these, the judge should not issue the search warrant.
Probable cause for search warrant: Such facts and circumstances which would lead a reasonably discreet and
prudent man to believe that an offense has been committed and that objects sought in connection with the offense are
in the place sought to be searched.
-
Reliable information is insufficient. Basis should be personal knowledge (via any of our senses)
-
Mere affidavits are not enough; the judge must depose in writing the complainant and his witnesses.
-
Probable cause does not mean actual and positive cause, nor does it import absolute certainty.
o There is no general formula how its done.
o Presumption is that Judicial function has been regularly performed.
Illinois v Gates
Facts: Police officers received an anonymous letter by mail informing them of the accuseds alleged drug trafficking
activities. Details as to an alleged imminent transaction was attached to the affidavit which contained corroborating
data collected by the police in an independent investigation.
Held: The two-pronged test for determining probable cause in actions involving informants would be abandoned. To
substitute is the totality of the circumstances analysis which permits a balanced assessment of the relative weights of
all various indicia of reliability and unreliability of an informers tip.
People v Estrada
Facts: BFAD applied for search warrant against Lanuza and alleged that she is selling, distributing and transferring
medicines and drugs without the necessary license from the DOH. BFAD, however, failed to discharge documentary
proof indicating that Lanuza had no license to sell or distribute drug products.

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Held: The facts and circumstances referred to in determining probable cause must be made up of the best evidence
that could be obtained under the circumstances. If the best evidence could not be secured at the time of the
application, the applicant must show a justifiable reason therefore during the examination of the judge.
People v Syjuco
Facts: Mendiola, from BIR, applied for a search warrant alleging that a certain fraudulent books or records were being
kept in a building occupied by Syjuco. Officers seized an art metal filing cabinet which belonged to an Atty. Remo and
contained documents belonging to his clients.
Held: The search warrant does not fulfill the necessary conditions in support of its validity, namely: 1) that the
application upon which it is issued is supported by an oath and 2) that the search warrant particularly describes not
only the place to be searched but also the person or thing to be seized and that there is probable cause.
Burgos v Chief of Staff
Facts: Search warrants were issued to search the offices of Metropolitan Mail and We Forum. Newspapers were
searched and office and printing machines, equipment, paraphernalia, motor vehicles and other vehicles used in the
printing, publication and distribution of said newspapers were seized.
Held: Probable cause for a search is defined as such facts and circumstances which would lead a reasonably
discreet and prudent man to believe that an offense has been committed and that the objects sought in connection
with the offense are in the place sought to be searched. The Constitutions requires no less than personal knowledge
by the complaint or his witnesses of the facts upon which the issuance of a search warrant may be justified.
Stonehill v Diokno
Facts: Respondent judge issued warrants against petitioners and/or the corporations of which they were officers,
directed to any officer to search the persons and premises of their offices and residences and to take possession of
personal property as subject of the offense or intended to be used as a means of committing the offense.
Held: A Search warrant shall not issue but upon probable cause in connection with one specific offense. No specific
offense was alleged in the application for the search warrants.
Columbia Pictures Inc. v CA
Facts: NBI applied for a search warrant against Tube Video Enterprises, et al. charging them with a violation of the
Intellectual Property Law and stated under oath that respondents had in their possession pirated video tapes.
Held: The presentation of the master tapes of the copyrighted films from which the pirated films were allegedly copied
was necessary for the validity of search warrants. The linkage of the copyrighted films to be pirated films must be
established to satisfy the requirements of probable cause.
Cf.
Columbia Pictures Entertainment, Inc. CA
Facts: Jingco filed an Urgent Motion to lift the search warrant and return the articles seized on the ground that the
search warrant that enabled the authorities to confiscate allegedly pirated movies from his store was issued without
th
probable cause. Trial Court granted the motion based on the ruling in 20 Century Fox v CA.
th
Held: The 20 Century Fox v CA case did not categorically say that presentation of the master tapes is necessary to
meet the requirement of probable cause before a search warrant can be issued. Other evidence (testimonial,
documentary, etc.) may be used, especially where the production in court of the master tapes would result in delay,
inconvenience or expenses out of proportion to its evidentiary value.

ii. Determining Probable Cause


(a) Person responsible
1987 Constitution, Article III Section 2. The right of the people to be secure in their persons, houses, papers, and
effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and
no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the
judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and
particularly describing the place to be searched and the persons or things to be seized.
Rule 126 Section 4. Requisites for issuing search warrant. A search warrant shall not issue except upon probable
cause in connection with one specific offense to be determined personally by the judge after examination under oath
or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be
searched and the things to be seized which may be anywhere in the Philippines.

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(b) Process
Rule 126 Section 5. Examination of complainant; record. The judge must, before issuing the warrant, personally
examine in the form of searching questions and answers, in writing and under oath, the complainant and the
witnesses he may produce on facts personally known to them and attach to the record their sworn statements,
together with the affidavits submitted.
Personal Examination by the Judge
-
Means personal determination of the Judge.
-
Exclusive and personal responsibility of the issuing judge to satisfy himself of the existence of probable
cause.
-
Judge will personally evaluate the affidavits and determined if probable cause is present.
-
If he is not satisfied, he may disregard the report and require the submission of supporting affidavits of
witnesses to aid him.
Particular Description of the Place/Person
-
Sufficient if the officer with the warrant can, with reasonable effort, ascertain and identify the place intended
and distinguish it from other places in the community
-
Test: Does it provide the officer sufficient information (can distinguish it form others)
Particular Description of Items to be Seized
-
Prevent general searches and avoid the seizure of a thing not described in the warrant.
o This is to prevent exploratory searches which reasonable interfere with a persons right to privacy.
-
Imposes a meaningful restriction
o Leaves nothing to the discretion of the officer who conducts the search
-
No general descriptions except when specificity is difficult.
Notes:
-
An open court hearing is not necessary. The purpose of the proceedinsg is for the judge to make his
personal determination. It may even be done in the chambers of the judge as long as such proceedings
are recorded.
-
The stenographers transcript of the proceedings is evidence of the validity/non-validity of the search
warrant.
-
If in the transcript, it appears that there are no searching questions, the evidence may be suppressed.
-
Stenographers can be administratively charge for failure to record/transcribe.
PICO v Asuncion
Facts: Police Chief Pascua applied for a search warrant against PICO because the company possessed high
powered firearms, ammunition and explosives in violation of PD 1866. Attached to the application were the
statements of SPO3 Bacolod, SPO2 Morito, Mario Enad and Felipe Moreno. Judge Asuncion issued the warrant after
questioning Bacolod.
Held: Search warrant invalid. Judge merely relied on affidavits. Only Bacolod was questioned and even he did not
have personal knowledge of the circumstances. Further, the place to be searched was not described with particularity.
Search warrant only said PICO compound.
Roan v Gonzales
Facts: House was searched but none of the articles listed in the warrant was discovered. However, the officers
conducting the search found and confiscated one Magnum revolver and 18 live bullets.
Held: Judge should not limit his inquiry on complainants affidavit only. He should take the applicants deposition in
writing and attach them to the record, together with the affidavit presented to him.
Alih v Castro
Facts: More than 200 Philippine Marines raided the compound occupied by Alih in search of loose firearms,
ammunitions and other explosives. Petitioners demand the return of arms on the ground that they were taken without
any warrant.
Held: Absolute Absence of reason why the orderly processes required by the Constitution were disregarded in the
case at bar. One cannot just force his way into any mans house on the illegal orders of a superior.

CRIMINAL PROCEDURE MIDTERMS REVIEWER | C 2016 27



iii. Description of things to be seized
Kho v Makalintal
Facts: Kho contested that the surveillance conducted by the NBI prior to the application of the warrant is insufficient
for them to have personal knowledge of the facts indicating the commission of the crime.
Held: The law does not require that the things to be seized must be described in precise and minute detail as to leave
no room for doubt on the part of the searching authorities, otherwise, it would be virtually impossible for the applicants
to obtain a warrant as they would not exactly know what kind of things they are looking for.

iv. Description of the place to be searched


PICO v Asuncion
Facts: Police Chief Pascua applied for a search warrant against PICO because the company possessed high
powered firearms, ammunition and explosives in violation of PD 1866. Attached to the application were the
statements of SPO3 Bacolod, SPO2 Morito, Mario Enad and Felipe Moreno. Judge Asuncion issued the warrant after
questioning Bacolod.
Held: The Constitution and the Rules limit the place to be searched only to those described in the warrant. The lack of
more specific description will make it apparent that there has not been sufficient showing to the magistrate that the
described items are to be found in the particular place.

d. Property to be seized.
Rule 126 Section 3. Personal property to be seized. A search warrant may be issued for the search and seizure of
personal property:
(a) Subject of the offense;
(b) Stolen or embezzled and other proceeds, or fruits of the offense; or
(c) Used or intended to be used as the means of committing an offense.
Ownership of property seized not required
-
Does not require that the property to be seized should be owned by the person against whom the search
warrant is directed.
-
Sufficient that the person has control/possession of the property sought to be seized.
o More difficult for the police if ownership if required.
Notes:
-
-
-
-

there must be a list which is specific as to those items one wants to be seized.
Search warrant could be for anything, even legal things.
Peace officers may seize the items not in the list IF they are illegal per se.
Search warrant can be issued to a person even though he is not the accused as long as he is the one in
control. (Burgos v Chief of Staff)

People v Syjuco
Facts: Mendiola, from BIR, applied for a search warrant alleging that a certain fraudulent books or records were being
kept in a building occupied by Syjuco. Officers seized an art metal filing cabinet which belonged to an Atty. Remo and
contained documents belonging to his clients.
Held: The search warrant does not fulfill the necessary conditions in support of its validity, namely: 1) that the
application upon which it is issued is supported by an oath and 2) that the search warrant particularly describes not
only the place to be searched but also the person or thing to be seized and that there is probable cause.
Burgos v Chief of Staff
Facts: Search warrants were issued to search the offices of Metropolitan Mail and We Forum. Newspapers were
searched and office and printing machines, equipment, paraphernalia, motor vehicles and other vehicles used in the
printing, publication and distribution of said newspapers were seized.
Held: Probable cause for a search is defined as such facts and circumstances which would lead a reasonably
discreet and prudent man to believe that an offense has been committed and that the objects sought in connection
with the offense are in the place sought to be searched. The Constitutions requires no less than personal knowledge
by the complaint or his witnesses of the facts upon which the issuance of a search warrant may be justified.

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e. Form and Content of Warrant; Lifetime
Rule 126 Section 1. Search warrant defined. A search warrant is an order in writing issued in the name of the
People of the Philippines, signed by a judge and directed to a peace officer, commanding him to search for personal
property described therein and bring it before the court. (1)
Rule 126 Section 6. Issuance and form of search warrant. If the judge is satisfied of the existence of facts upon
which the application is based or that there is probable cause to believe that they exist, he shall issue the warrant,
which must be substantially in the form prescribed by these Rules. (5a)
Rule 126 Section 10. Validity of search warrant. A search warrant shall be valid for ten (10) days from its date.
Thereafter it shall be void. (9a)
Notes:
-
10 days = 10 calendar days including weekends
-
This means that the search may be done even on weekends.
Bache v Ruiz
Facts: The participation of the Judge in the proceedings which led to the issuance of search warrant was limited to
listening to the stenographers reading of her notes, to a few words of warning against perjury and to administering
oath to the complainant and his witness.
Held: This is considered personal examination. The Constitution and the Rules require a personal examination by the
Judge. The reading of the stenographic notes to Judge did not constitute compliance with this mandate for by that
manner the judge did not have opportunity to observe the demeanor of the complainant and his witness, and to
propound initial and follow-up questions which the judicial mind, on account of its training, was in the best position to
conceive.
Mustang Lumber Inc v CA
Facts: DENR and police conducted surveillance at Mustang, a lumber dealer, based on info that a huge stockpile of
narra flitches, shorts and slabs were seen inside the lumberyard. Team was able to secure Search Warrant from
judge on April 3, 1990.
Held: The search on April 4, 1990 was a continuation of the search on April 3, 1990 done under and by virtue of the
search warrant issued April 3, 1990 by Executive Judge. Search Warrant has a lifetime of ten days. Hence, it can be
served at any time within the said period, and if its object or purpose cannot be accomplished in one day, the same
may be continued the following day or days until completed.

f. Validity of warrant
Stonehill v Diokno
Facts: Respondent judge issued warrants against petitioners and/or the corporations of which they were officers,
directed to any officer to search the persons and premises of their offices and residences and to take possession of
personal property as subject of the offense or intended to be used as a means of committing the offense.
Held: A Search warrant shall not issue but upon probable cause in connection with one specific offense. No specific
offense was alleged in the application for the search warrants.
People v Estrada
Facts: The application for search warrant was accompanied with a sketch of the compound at the address specified.
The sketch indicated the 2-storey residential house of Estrada with a large X enclosed in a square. With this sketch
as a guide, it could have been very easy to describe the residential house of Estrada with sufficient particularity.
Held: The search warrant merely indicated the address of the compound. The description of the place to be searched
is too general and does not pinpoint the specific house of Estrada.
People v CA
Facts: Judge of RTC Quezon City issued a search warrant against Hussain who allegedly had in his possession
firearms and explosives at Abigail Store. Quashal of Warrant was granted by the Judge of RTC San Jose del Monte,
Bulacan.
Held: There is no ambiguity in the warrant. The ambiguity lies outside the search warrant: the absence of the meeting
of the minds as to the place to be searched between the applicants for the warrant and the Judge issuing the same.

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Police officers cannot search a place different from that stated in the warrant on the claim that the place actually
searched was exactly what they had in view when they applied for the search warrant and demarcated in their
supporting evidence. What is material in determining the validity of a search is the place stated in the warrant itself,
now what the applicants had in mind or had represented in the proofs they submitted to the court issuing the warrant.

4.

Warrantless

a.

Search incident to a lawful arrest

Rule 126 Section 13. Search incident to lawful arrest. A person lawfully arrested may be searched for dangerous
weapons or anything which may have been used or constitute proof in the commission of an offense without a search
warrant. (12a)
Notes:
-
presupposes that a person searched was previously arrested lawfully.
o If illegal arrest, then not applicable
o Lawful Arrest must precede search.
Tests:
1.
2.

Item to be searched was within the arrestees custody or aread of immediate control
Search was contemporaneous with the arrest.

Difference between a search incident to a lawful arrest and to a stop and frisk operation
Search Incident to a Lawful Arrest
-
Objective is to arrest
-
There is an identified offense
-
Warrant sis not necessary. However, the
arrest must be valid (Rule 113 Sec 5)
-
As long as the arrest is valid, the search
incidental to such arrest will be valid.

Stop and Frisk


-
Search is the primary objective
-
There may not even be an arrest

US v Verdugo-Urdiquez
Facts: The Government obtained an arrest warrant for respondent- a Mexican citizen and resident. He was
apprehended by the Mexican police and transported to the US where he was arrested. Following his arrest, Drug
Enforcement Administration agents, working with Mexican officials, searched his Mexican residences and seized
certain documents.
Held: The Fourt Amendment protections do not apply to searches and seizures by US agents of propert owned by a
non-resident alien in a foreign country. At the time of search, the alien was a citizen and resident of Mexico and with
no voluntary attachment to US. The place searched was located in Mexico.
People v Padilla
Facts: Padilla was apprehended after a hit and run incident. Found in his possession were several firearms. He was
not able to produce a permit to carry such firearms.
Held: Padilla cannot defeat the arrest which has been set in motion in a public place for a want of a warrant as the
police was confronted by an urgent need to render aid or take action. When caught in flagrante delicto, Padillas
warrantless arrest was proper as he was actually committing another offense, and this time in the presence of a
peace officer.
People v Chua Ho San
Facts: Police patrolling the Bacnotan shoreline received a radio call about an unfamiliar speedboat. When the
speedboat docked, the lone passenger Chua alighted carrying a multi-colored straw bag. After introducing
themselves, the police asked that the bad be opened. It contained shabu.
Held: Search not incidental to lawful arrest. While a contemporaneous search of a person arrested may be effected to
deliver dangerous weapons or proofs or implements used in the commission of the crime and which search may
extend to the area within his immediate control, a valid arrest must precede the search. The process cannot be
reversed.

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Office of Court Administrator v Barron
Facts: Judge Barron was selling the case under his judgeship to one of the parties. In an entrapment, the NBI
operatives arrested the judge.
Held: There is not scintilla of evidence that the manner by which the NBO agents conducted the
operation/entrapment was tainted with illegality. Absent stron and convincing proof to the contrary, there is
presumption that arresting officers were aware of the legal mandates in effecting an arrest and strictly complied with
the same.
Chimel v California
Facts: Upon serving Chimel with the arrest warrant, police officers conducted a comprehensice search of his
residence. The search uncovered a number of items that were later used to convict him.
Held: The search of Chimels house was unreasonable under the Fourth and Fourteenth Amendments. The Court
reasoned that searches incident to arrest are limited to the area within the immediate control of the suspect. They
were prohibited from rummaging through the entire house without a search warrant.
Nolasco v Pano
Facts: Aguilat and Nolasco were arrested 11:30am aboard a public vehicle on the road at Mayon and Margal Streets.
The record does not disclose that a warrant of arrest had previously been issued against Nolasco. Aguilars dwelling
along Mayon Street was searched with warrant. She was arrested within the general vicinity of her dwelling and within
a half hour from her arrest.
Held: The search warrant is null and void. But the personalties seized may be retained by the military for possible
introduction as evidence in a military case before the Special Military Commission.
Teehankee dissent: 1) Search warrant being void, the Bill of Rights commands that the things seized be excluded
from presentation as evidence. 2) A warrantless search is limited only to the person of the suspect and the place of
arrest, not to any other place.
Nolasco v Pano (1987)
Facts: Resolution of petitions for reconsideration filed by both parties in this case decided in 1985. Here, the SolGen
on behalf of the public respondents gives deference to Teehankee dissent in the 1985 case.
Held: Search warrant issued was null and void. Things seized via said warrant excluded from introduction as
evidence. Personalties of Aguilar ordered returned to her.
Posadas v CA
Facts: Police was conducting surveillance along a street in Davao City. Posadas was spotted carrying a buri bag and
acting suspiciously. Police approached him and identified themselves as members of the Integrated National Police.
The buri bag contained a revolver, rounds of ammunition and a smoke grenade.
Held: The search may still be justified as akin to a stop and frisk situation whose object is either to determine the
identity of a suspicious individual or to maintain the status quo momentarily while the police officer seeks to obtain
more info.
Malacat v CA
Facts: Police on foot patrol chanced upon two groups of Muslim looking men. These men were acting suspiciously
with their eyes moving very fast. The police officers approached one group of men, who then fled in different direction.
Malacat was apprehended after a chase. He was searched and a fragmentation grenade was found.
Held: Even granting that Malacat was in possession of a grenade, his arrest and search were invalid. The TC
validated the warrantless search as a stop and frisk with the seizure of the grenade from Malacat as an appropriate
incident to his arrest. The TC confused the concepts of a stop and frisk and of a search incidental to a lawful arrest.
These two types of warrantless searches differ in terms of the requisite quantum of proof before they may be validly
effected and in their allowable scope.

b.

Consented Search

Note:
-
-
-
-

The premise is hes not giving his consent.


The waiver should be voluntary, unequivocal, specific, intelligently-ginve and uncontaminated by any duress.
Not just about not protesting
If voluntary surrender, can be searched.

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Requisites:
1. the right exists
2. person involved had knoeldge of the right
3. actual intention to relinquish the right
People v Malasugui
Facts: Accused was arrested and officer asked him for the bracelets he allegedly stole. He then voluntarily and
without protest produced the said things. He was later searched without opposition on his part. It was discovered he
also had the ID and other things and money of the victim.
Held: Malasugui permitted the officers to search his person and to take from him the articles to be used against him in
due time. He made no objection. So his contention that he was subjected to unreasonable search is unfounded. When
one voluntarily submits to a search or consents to have it made of his person or premises, he is precluded from later
complaining thereof.
Alvarez v CFI
Facts: Anti-Usury Board said Alvarez cannot question the validity of the search warrant or the proceedings had
subsequent to the issuance thereof because he has waived his constitutional rights in proposing a compromise
whereby he agreed to pay a fine of P200 for the purpose of evading the criminal proceedings.
Held: No waiver. 1) Alvarez had emphatically denied the offer of compromise; 2) if there was a compromise, it
referred not to the search warrant and the incidents thereof but to the institution of criminal proceedings for violation of
the Anti-Usury Law.
Cf.

1.

Personal Submission not consent to search

Garcia v Locsin
Facts: Anti-Usury Board agent obtained from Justice of Peace a search warrant commanding any officer of the law to
search the person, house or store of Garcia for certain books, lists, chits, receipts, documents and other papers
relating to her activities as usurer. The warrant was issued upon an affidavit given by said agent.
Held: Constitutional immunity against unreasonable searches and seizures is a personal right which may be waived.
However, the immunity being a personal one, it cannot be waived by anyone except the person whose rights are
invaded or one who is expressly authorized to do so in his or her behalf. Warrant is illegal.

2.

Effect of Voluntary Surrender

People v Agbot
Facts: During the investigation in the house of the victim, Agbot arrived and admitted to the investigating officer that
he was the one who shot the victim using a paltik shotgun. He executed an extrajudicial confession before the police
authorities which was subscribed and sworn to by him before the municipal judge.
Held: Agbots latter denial of having made the admission is not believable. The taking of the gun from his house was
with consent and acquiescence that would not constitutea violation of the constitutional guaranty against the
admissibility of illegally seized objects as evidence against an accused.

3.

Effects of posting bail

Rule 126 Section 14. Motion to quash a search warrant or to suppress evidence; where to file. A motion to quash
a search warrant and/or to suppress evidence obtained thereby may be filed in and acted upon only by the court
where the action has been instituted. If no criminal action has been instituted, the motion may be filed in and resolved
by the court that issued the search warrant. However, if such court failed to resolve the motion and a criminal case is
subsequent filed in another court, the motion shall be resolved by the latter court. (n)
Cf.
Rule 114 Section 26. Bail not a bar to objections on illegal arrest, lack of or irregular preliminary investigation. An
application for or admission to bail shall not bar the accused from challenging the validity of his arrest or the legality of
the warrant issued therefor, or from assailing the regularity or questioning the absence of a preliminary investigation
of the charge against him, provided that he raises them before entering his plea. The court shall resolve the matter as
early as practicable but not later than the start of the trial of the case. (n)

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c. Stop and Frisk automobile roadblocks, and other less intrusive searches

Stop and Frisk / Terry Searches (2 Parts)


1. Valid Stop
- requires that the officer has a reasonable and articulable belief that criminal activity has happened or is
about to happen
2. Frisk
- must be a mere pat down outside the persons outer garment and not unreasonably intrusive
- must be done because of a reasonable belief that the person stopped possesses a weapon that will pose
a danger to the officer and others
REASONABLE BELIEF is the test of the conduct of an officer
- Probable cause is NOT required (because no full arrest is made)
- Officer has a reasonable belief, based on a genuine reason and in light of the OFFICERS EXPERIENCE AND
THE SURROUNDING CIRCUMSTANCES, that a crime has either taken place or is about to take place and the
person to be stopped is armed and dangerous
- must be based on SPECIFIC AND ARTICULABLE FACTS and not merely upon the officers bare suspicion or
hunch
Stop and Frisk principle serves a dual purpose:
1. general interest of effective crime prevention and detection
2. safety of the police officer to take steps to assure himself that the person with whom he deals is not armed
with a deadly weapon that could be used against him
Stop and Frisk/ Terry Searches vs. Searches incidental to a Lawful Arrest
Terry Search
Requires REASONABLE BELIEF/ genuine reason

mere brief, investigative stop followed by a surface,


non-intrusive pat down of ones outer garments to
determine the presence of weapons
Purpose: find weapons

Search incidental to a lawful arrest


Requires PROBABLE CAUSE for the arrest, where
the person is taken under the custody of the arresting
officer
search is of the person and the area within his control;
more intrusive

Purpose: find weapons and search for evidence (in


the arrested persons immediate control), any fruit of a
crime or of things which may provide the person
arrested with the means of escape

Terry v. Ohio
Facts: Suspicious persons loitering around a store, walking back and forth, observing the establishment, and
conferring with each other. Officer McFadden, who had covered the area for 30 years, approached the men, identified
himself as a police officer and asked that the men identify themselves. After getting only mumbled answers, the police
officer patted down the outer garment of Terry and felt a gun in the pocket. Said weapon was removed.
Held: Where the police officer observes an unusual conduct which leads him reasonably to conclude, in light of his
experience, that criminal activity may be afoot and that the persons with whom he is dealing may be armed and
presently dangerous; where in the course of investigating this behavior he identified himself as a policeman and
makes inquiries; and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his
own or others safety, he is entitled for the protecting of himself and others in the area to conduct a carefully limited
search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him.
Delaware v. Prouse
Facts: A patrol car, allegedly conducting a border check at random around 100 kms. away from the state border,
searched a car.
Held: Search is unreasonable. The circumstances could not be considered a border check when it has a substantial
distance from the border. Also, the procedure of the officers to stop cars at random without a hint of probable cause
offends the constitutional injunction against unreasonable searches.
Caballes v. CA
Facts: A jeep unusually covered with kakawati leaves was flagged down and was searched, recovering stolen electric
wires.

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Held: When a vehicle is stopped and subjected to an extensive search, such an extensive warrantless search would
only be justified if there is probable cause to believe that the motorist is a law offender.
Valmonte v. De Villa*
Facts: A Letter of Instruction was issued to conduct security operations in the area. Checkpoints were installed.
Held: There was no sufficient evidence presented to declare the checkpoints per se illegal. Also, constitutional right
against unreasonable seizure is a personal right invocable only by the person whose rights have been infringed.
Manalili v. CA (supra)
People v. Lacerna
Facts: Policemen noticed a suspicious-looking passenger aboard a taxi. They flagged down the taxi and searched a
plastic bag. They made a hole on it and smelled marijuana.
Held: Probable cause is not evident. Nonetheless, the search is valid because the accused freely consented to the
search. Consent (not mere passive acquiescence) could validate an otherwise invalid search.

d. Moving vehicles / hot pursuit

Rationale for the exception: it is not practicable to secure a warrant because the vehicle can be quickly moved
out of the locality or jurisdiction in which the warrant must be sought
- But, at all times, PROBABLE CAUSE is required to exist in order to justify warrantless searches of vehicles
- Flagging down and extensive search of a vehicle is VALID as long as the officers conducting the search have
PROBABLE CAUSE to believe PRIOR TO THE SEARCH that they would find the INSTRUMENTALITY OR
EVIDENCE PERTAINING TO A CRIME, IN THE VEHICLE TO BE SEARCHED
Checkpoints [Valmonte v. De Villa]
-
not illegal per se
-
may be allowed and installed by government under exceptional circumstances; but when the situation clears
and such grave perils are removed, there will no longer be reason for the checkpoints
-
only VISUAL SEARCH of the VEHICLE
-
should be conducted in a way least intrusive to motorists

Caroll v. US
Facts: A vehicle suspected of carrying prohibited spirits was searched.
Held: The search of a moving vehicle is justified because of the exigent circumstance that a moving vehicle could be
removed from the jurisdiction before a warrant could be obtained.

Papa v. Mago
Facts: A truck, upon receipt of reliable information, was pursued and intercepted after leaving the customs premises.
Held: The police, having been deputized in writing by the Collector of Customs, could, for the purposes of the
enforcement of the customs and tariff laws, effect searches, seizures, and arrests. It could lawfully open and examine
any box, trunk, envelope, or other container when it had reasonable cause to suspect the presence of dutiable articles
introduced into the Philippines contrary to law. As long as the importation has not been terminated, the imported
goods remain under the jurisdiction of the Bureau of Customs. Importation is deemed terminated only upon the
payment of duties, taxes, and other charges upon the articles.
Almeida-Sanchez v. US
Facts: Petitioner is a Mexican citizen with a valid US work permit. He was stopped 25 air miles north of the Mexican
border (nowhere near it). The Border Patrol thoroughly searched his car without a warrant and discovered marijuana.
Held: It is within the power of the Federal Government to exclude aliens from the country by routine inspections and
searches of individual or conveyances seeking to cross the border. But searching the petitioners car more than 20
miles away from the border, without probable cause or consent, violates the Fourth Amendment right to be free of
unreasonable searches and seizures
Caballes v. CA (supra)
Asuncion v. CA
Facts: Informer pointed to a vehicle. The police stopped the vehicle and was able to recover drugs.
Held: Valid search of a moving vehicle. The rationale for the liberality in searching moving vehicles is practicality.

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Roldan v. Arca
Facts: Bureau of Fisheries requested the Philippine Navy to apprehend two vessels engaged in illegal fishing.
Held: Seizure is valid. Search and seizures without a search warrant of vessels and aircrafts for violations of customs
laws have been the traditional exception to the constitutional requirement of a search warrant. The same exception
should apply to seizures of fishing vessels breaching our fishery laws. The Bureau is empowered under the RA 3512
to make searches and seizures.
People v. Lo Ho Wing
Facts: OPLAN Sharon was created to bust a drug syndicate. Deep penetration agents were engaged. The
malefactors deplaned in the NAIA from a trip to China to procure drugs. En route to their home, while boarding a taxi,
they were searched and apprehended.
Held: The circumstance of the case clearly shows that the search in question was made as regards a moving vehicle.
People v. Balingan
Facts: The Narcotics division received a tip that appellant was going to Manila with a bag full of marijuana. The
appellant boarded a bus. The police announced a routinary checkpoint and searched the appellants baggage.
Held: There was probable cause. A tip coupled with surveillance gives the police probable cause. This is a case as
regards a moving vehicle. Jurisprudence has steadily liberalized the requisites for moving vehicles.
Obra v. CA
Facts: Obra was requested for assistance in apprehending a truck allegedly used by the Sps. Brett (who were
allegedly involved in illegal mining activities) in transporting ores. The truck was seized as it was entering the
Mamakar mining area.
Held: Moving vehicle doctrine does not apply. The truck was seized while it was entering the mining area, not while
transporting minerals outside the area. Search of moving vehicles has been justified on the ground that the mobility of
motor vehicles makes it possible for the vehicle to be searched to move out of the locality or jurisdiction in which the
warrant must be sought. However, this does not give police officers unlimited discretion to conduct warrantless
searches of automobiles in the absence of probable cause.

e. In Plain Sight

Objects falling in the plain view of an officer who has a right to be in the position to have that view are subject to
seizure and may be presented as evidence
Requisites for the application of the Plain View Doctrine:
1. PRIOR JUSTIFICATION FOR AN INTRUSION or is in a position from which he can view a particular area
2. INADVERTENT DISCOVERY of the evidence in plain view
discovery is not anticipated
plain view doctrine does not apply where the police officers did not just accidentally discover the evidence
but actually searched for it
3. IMMEDIATELY APPARENT to the officer that the item he observes may be evidence of a crime, contraband,
or otherwise subject to seizure
rule does not require an unduly high degree of certainty as to the incriminating character of the evidence
requires merely that the seizure be presumptively reasonable assuming that there is probable cause to
associate the property with criminal activity i.e., that a nexus exists between a viewed object and criminal
activity
4. Without further search (People v. Bolasa)
Plain view doctrine is not an exception to the warrant requirement but merely serves to supplement the prior
justification --- whether it be a warrant for another object, hot pursuit, search as an incident to a lawful arrest or
some other legitimate reason for being present, unconnected with a search directed against the accused.
-
In cases where the search is made pursuant to a duly issued warrant, the Court allows the seizure of
objects, articles or papers not even described in the warrant when they are in the plain view of the officer

Harris v. US
Facts: Pursuant to a departmental regulation, a police officer searched an impounded car held as evidence of a
robbery. The search completed, the officer opened the car door for the purpose of rolling up a window and thus
protecting the car and its contents. On opening the door, the officer saw, exposed to plain view, the automobile
registration card belonging to the victim of the robbery. This card was used as evidence in petitioners trial.

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Held: Valid search. The card was subject to seizure and introducible in evidence since it was not discovered by
means of a search in the technical sense, but was plainly visible to the officer who had a right to be in a position of
viewing it.
Coolidge v. New Hampshire
Facts: Police officers seized Coolidges car, which was merely parked in front of his house, in light of a murder he
was accused of having committed. Little gun residue was found in the car.
Held: Illegal seizure of the car. The plain view doctrine had existed as kind of judicial intuition until the Supreme Court
described the conditions for its application in Coolidge. The Coolidge plain view has 3 parts:
1. There must be a prior valid intrusion
2. The discovery of the evidence must be inadvertent.
3. The evidentiary value of the evidence must be immediately apparent.

Roan v. Gonzales
Facts: (supra)
Held: Case does not fall under plain view. Officers cannot claim that they stumbled upon the pistol and bullets as they
deliberately sought for those items.
People v. Musa
Facts: Appellant was arrested and his person searched in the living room. Failing to retrieve the marked money which
they hoped to find, the NARCOM agents searched the house and found a plastic bag.
Held: It has been suggested that even if an object is observed in plain view, the plain view doctrine will not justify
the seizure of the object where the incriminating nature of the object is not apparent from the plain view of the object.
Stated differently, it must be immediately apparent to the police that the items that they observed may be evidence of
a crime or contraband.
People v. Doria
Facts: Buy bust operation. Doria was apprehended. He did not have the marked money but disclosed that it was with
his girl friend. They went to the house and the police notices a box under the table. It was searched.
Held: The requisites under the plain view doctrine do not obtain. There was no valid prior intrusion.
People v. Bolasa
Facts: Anonymous caller tip a man and a woman were repacking prohibited drugs in a house in Valenzuela. Police
officers immediately went to the house, peeps through a small window, and saw a man and a woman repacking what
they suspected to be marijuana. They entered the house, confiscated the tea bags and paraphernalia and arrested
the two.
Held: Seizure invalid because search was invalid; cannot be considered as search in plain view. Elements of search
in plain view: (1) prior valid intrusion based on the valid warrantless arrest; (2) evidence inadvertently discovered by
police who have the right to be where they are; (3) evidence immediately apparently; and (4) plain view justified mere
seizure of evidence without further search. First element is absent.

f. Private searches
People v. Marti*
Facts: (supra)
Held: The constitutional protection against unreasonable searches and seizures refers to the immunity of ones
person from interference by government; it cannot be extended to acts committed by private individuals so as to bring
it within the ambit of alleged intrusion by the government. When the contraband articles are identified without a
trespass on the part of the arresting officer, this is not a search that is prohibited by the constitution. The marijuana
can be admitted in evidence as it was obtained by the proprietor Job Reyes, a private person.
Waterous Drugs Corp. v. NLRC*
Facts: Catolico, pharmacist of Waterous Drug Corp, received a refund check from YSP and allegedly pocketed it.
Check was used as evidence against her and she was dismissed.
Held: No violation of constitutional right because search was made by private person.

g. Extraordinary circumstances

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People v. De Gracia
Facts: Eurocar building was under surveillance on the report that it was being used by the Reform the Armed Forces
Movement Soldiers of the Filipino People (RAM-SFP). Officers making the surveillance were attacked by 5 men who
approached their car and opened fire. The next day, a searching team (no search warrant) was sent to Eurocar where
ammunition, dynamites, M-shells and bombs were found. De Gracia was arrested.
Held: Valid search and seizure. There was general chaos and disorder at the time because of coup dtat. Courts in
the surrounding areas were closed. There was reasonable ground to believe that s crime was being committed and,
consequently, more than sufficient probable cause. Under such urgency and exigency of the moment, a search
warrant could lawfully be dispensed with.

II. Procedure for service of warrant; post-service procedure


A. Service of Warrant
Limitations on the service of the warrant:

Must be served during the 10-day validity period

Unless indicated in the warrant, can only be served at daytime

Dwelling/ house cannot be searched without the presence of lawful occupant/family/ 2 witnesses

1. Time of Search
Rule 126, sec 9. Time of making search. The warrant must direct that it be served in the day time, unless the
affidavit asserts that the property is on the person or in the place ordered to be searched, in which case a direction
may be inserted that it be served at any time of the day or night.

The application for the search warrant must include specifications that the search needs to be done at night.
If the search is done at night and such specification is not in the application, the validity of the search may be
contested.
The rule on issuance of search warrants allows for the exercise of judicial discretion in fixing the time within which
the warrant may be served, subject to the statutory requirement fixing the max time for the execution of the
warrant (People v. CA)

2. Two-witness rule
Rule 126, sec 8. Search of house, room, or premises to be made in presence of two witnesses. - No search of a
house, room, or any other premises shall be made except in the presence of the lawful occupant thereof or any
member of his family or in the absence of the latter, two witnesses of sufficient age and discretion residing in the
same locality.

The rule in this regard is empathic. No search shall be made except in the presence of the persons mentioned in
the Rules.

People v. Gesmundo*
Facts: (supra)
Held: Not only does the law require the presence of witnesses when the search is conducted, but also imposes upon
the person making the search the duty to issue a detailed receipt of the property seized. He is also required to deliver
the property to the judge who issued the warrant, together with a true and accurate inventory. These duties are
mandatory.

3. Breaking of door or window to effect search


Rule 126, sec 7. Right to break door or window to effect search. The officer, if refused admittance to the
place of directed search after giving notice of his purpose and authority, may break open any outer or inner
door or window of a house or any part of a house or anything therein to execute the warrant or liberate
himself or any person lawfully aiding him when unlawfully detained therein.

An officer should knock, introduce himself and announce his purpose and only in exceptional cases may he
forego the same like when his safety is in danger of being jeopardized or when evidence is about to be
destroyed.

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Requisites:
1.
2.
3.

Officer gives notice of his purpose and authority.


He is refused admittance to the place of directed search despite the notice.
Purpose of breaking is to execute the warrant or to liberate himself or any person lawfully aiding
him when unlawfully detained therein.

B. Post-service procedure
1. Issuance of Receipt
People v. Gesmundo (supra)
Rule 126, sec 11. Receipt for the property seized. The officer seizing property under the warrant must give
a detailed receipt for the same to the lawful occupant of the premises in whose presence the search and
seizure were made, or in the absence of such occupant, must, in the presence of at least two witnesses of
sufficient age and discretion residing in the same locality, leave a receipt in the place in which he found the
seized property.
People v. Lacbanes
Facts: Three marijuana sticks were found on Lacbanes. He claimed frame up because he allegedly did not supply
info on the NPA. Here, the issue was the receipt because it must be signed by the police instead of by the person
searched.
Held: If signed by the person searched and the things seized are prohibited substances, it is tantamount to an
extrajudicial confession.

2. Delivery of property and inventory; return and proceedings on the return


Rule 126, sec 12. Delivery of property and inventory thereof to court; return and proceedings thereon.
(a) The officer must forthwith deliver the property seized to the judge who issued the warrant, together with a true
inventory thereof duly verified under oath.
(b) Ten (10) days after issuance of the search warrant, the issuing judge shall ascertain if the return has been made,
and if none, shall summon the person to whom the warrant was issued and require him to explain why no return was
made. If the return has been made, the judge shall ascertain whether section 11 of this Rule has been complied with
and shall require that the property seized be delivered to him. The judge shall see to it that subsection (a) hereof has
been complied with.
(c) The return on the search warrant shall be filed and kept by the custodian of the log book on search warrants who
shall enter therein the date of the return, the result, and other actions of the judge.
A violation of this section shall constitute contempt of court.

Duties of the officer after the search and seizure; delivery and inventory:
-
The officer must forthwith deliver the property seized to the judge who issued the warrant.
-
The officer must, together with the delivery of the property also deliver a true inventory of the
property seized. Such inventory must be duly verified under oath.
-
A violation of the above rules shall constitute contempt of court.
Duty of the judge; return and other proceedings:
-
The judge who issued the warrant shall ascertain if the return has been made. He shall do so ten
(10) days after issuance of the search warrant.
-
If no return has been made, the judge shall summon the person to whom the warrant was issued
and require him to explain why no return was made.
-
If the return has been made, the judge shall ascertain whether Section 11 of Rule 126 (giving of a
receipt for the property seized) was complied with and shall require that the property seized be
delivered to him. The judge shall also see to it that subsection a of Section 12 of Rule 126
(delivery of the property seized and true inventory) has been complied with.
When the evidence shows that the judge who issued the search warrant did not require the officers
executing the warrant to make an accurate and complete inventory of the things seized and submit the
same to him, he is guilty of gross ignorance of the law. (Betoy v. Coliflores)
Court held that the delivery of the seized items to the judge who issued the search warrant to be kept in
custodia legis is in anticipation of the criminal proceedings against petitioner; the delivery of the items
seized to the court which issued the warrant together with a true and accurate inventory thereof, duly
verified under oath, is mandatory in order to preclude the substitution of said items by interested parties.
The return on the search warrant shall be filed and kept by the custodian of the log book on search
warrants who shall enter therein the date of return, the result, and other actions of the judge

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The distinction between a return and a receipt is a common bar question.


What if the item seized is not in the warrant/receipt/return? The remedy is to have the thing returned, at
the very least.
How does the owner compel that the items seized be returned to him?
o Motion for release of items this includes (1) items not in the list indicated in the warrant, (2) items
not illegal per se
If the seizure of a thing is in the return, such thing could be included in evidence and cannot be
retrieved/returned to the person from whom it was seized because it is already evidence in the case.
Delivery of property in Rule 126, Section 12 requires physical delivery.
o Except those things difficult to deliver (e.g. back hoe in the Maguindanao massacre)
o As long as the thing seized is specifically included in the return, the thing can be left with the
custody of the police.
If the search is a valid warrantless search, the police need not issue a receipt or make a return.
There is nothing in the rules which says what happens to confiscated illegal firearms.

Return (Sec 12 Rule 126)


True inventory of items/property seized in the
execution of the warrant
Verified under oath by the police officer who
served the warrant (The return is a formal
pleading entitled return)
Includes the date the search warrant was issued
and date when the search was made
Delivered together with the property seized to
the judge who issued the warrant
Filed and kept by the custodian of the logbook
on search warrants

Receipt (Sec 11 Rule 126)


Inventory of items/ property seized in the
execution of warrant
Not necessarily under oath
Made by the peace officer who served the
warrant
Must be signed by such lawful occupant/witness
Given to:
-
Lawful occupant of the premises in
whose presence the search and
seizure were made
-
Leave a receipt in the place in which
they found the seized property, in the
presence of at least two witnesses of
sufficient age and discretion residing in
the same locality.

People v. Gesmundo (supra)

III. Remedies against unreasonable search and seizure


Consequences of illegality of the search warrant:
1. Quashal of the warrant
2. Suppression of evidence
Consequences of illegality of service:
1. Criminal cases (Revised Penal Code)

Violation of domicile (Art. 128)

Search warrants maliciously obtained, and abuse in the service of those legally obtained (Art. 129)

Searching domicile without witnesses (Art. 130)

Unjust interlocutory order (Art. 206)


2. Civil case for damages
3. Administrative case against those who served the warrant
4. Suppression of evidence

A. Motion to quash search warrant or suppress evidence


Rule 126, sec 14. Motion to quash a search warrant or to suppress evidence; where to file. A motion to quash
a search warrant and/or to suppress evidence obtained thereby may be filed in and acted upon only by the court
where the action has been instituted. If no criminal action has been instituted, the motion may be filed in and
resolved by the court that issued the search warrant. However, if such court failed to resolve the motion and a
criminal case is subsequently filed in another court, the motion shall be resolved by the latter court.

CRIMINAL PROCEDURE MIDTERMS REVIEWER | C 2016 39



RA 8493, sec. 2 (d) Mandatory Pre-Trial in Criminal Cases. - In all cases cognizable by the Municipal Trial Court,
Municipal Circuit Trial Court, Metropolitan Trial Court, Regional Trial Court, and the Sandiganbayan, the justice or
judge shall, after arraignment, order a pre-trial conference to consider the following: xxx
(d)
Waiver of objections to admissibility of evidence; xxx
CF. Rule 118, sec 1 (d) Pre-trial; mandatory in criminal cases. In all criminal cases cognizable by the
Sandiganbayan, Regional Trial Court, Metropolitan Trial Court, Municipal Trial Court in Cities, Municipal Trial
Court and Municipal Circuit Trial Court, the court shall, after arraignment and within thirty (30) days from the date
the court acquires jurisdiction over the person of the accused, unless a shorter period is provided for in special
laws or circulars of the Supreme Court, order a pre-trial conference to consider the following: xxx
(d)
Waiver of objections to admissibility of evidence; xxx

Motion must be made before entering of plea, otherwise, the objection is deemed waived.
A motion to quash a search warrant and/or to suppress evidence obtained by virtue of the warrant may be
filed and acted upon only by the court where the action has been instituted.
Who may assail the issuance of a search warrant?
o the legality of a seizure can be contested only by the party whose rights have been impaired thereby;
objection is purely personal; cannot be availed of by third parties
(e.g. The manager of an establishment is a real party-in-interest to seek the quashal of the search
warrant for the obvious reason that the search warrant, in which the manager was solely named as
respondent, was directed against the premises and articles over which he had control and supervision.
The corporation does not have the exclusive right to question the seizure of items belonging to the
corporation on the ground that the latter has a personality distinct from the officers and shareholders of
the corporation. Assuming arguendo that the corporation was the owner of the seized items, the
manager had authority to question the seizure of the items belonging to the corporation. Unlike natural
persons, corporations may perform physical actions only through properly delegated individuals;
namely, their officers and/or agents.)
The court held that the special civil action for certiorari was the proper recourse availed in assailing the
quashal of the search warrant. An unwarranted reversal of an earlier finding of probable cause constituted
grave abuse of discretion. In any case, the Court had allowed even direct recourse to the Supreme Court or
to the CA via a special civil action for certiorari from a trial courts quashal of a search warrant.
Stonehill v. Diokno (supra)
Bache v. Ruiz (supra)

Rakas v. Illinois
Facts: Guns and ammo seized from robbers in a car which was not theirs.
Held: Court held that they could not contest the admissibility of the evidence because they were neither the owners of
the guns or of the car searched. One who does not assert property nor possessory rights on the property searched
and seized are not entitled to challenge the search.
Paper Industries Corp. v. Asuncion
Facts: (supra)
Held: Motion to quash can be filed on the basis that the warrant was defective because of the lack of searching
questions by the judge and of lack of personal knowledge of the witnesses.

B.

Return of property illegally seized

Uy Khetin v. Villareal
Facts: Warrant directed search and seizure of opium and several documents.
Held: Documents must be returned. (This would different if instead of documents it was an illegal thing like prohibited
firearms.)
Magoncia v. Palacio
Facts: Search made in the absence of the husband yielded an unlicensed paltik and some ammo.
Held: The objects seized are inadmissible but cannot be returned because to order the return would be to justify a
criminal offense.

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Collector v. Villaluz
Facts: Several petitions involved items confiscated by customs officials for not being declared properly. Judge
conducted preliminary investigation and dismissed the case with prejudice to re-filing and ordered the confiscated
items returned.
Held: Dismissal at preliminary investigation is never with prejudice. Re-filing of the same is allowed if evidence has
become sufficient to warrant conviction. It is an established principle that from the moment imported goods are
actually in the possession or control of customs authorities, even if no warrant of seizure had previously been issued
by the Collector of Customs in connection with seizure and forfeiture proceedings, the Bureau of Customs acquires
exclusive jurisdiction over such imported goods for the purpose of enforcing the customs laws, subject to an appeal
only to the Court of Tax Appeals and to final review by the Supreme Court.
Mata v. Bayona
Facts: Criminal case was filed against Mata because he offered, took, and arranged bets on the Jai Alai game by
selling illegal tickets known as masiao tickets without any authority. Search warrant was subsequently declared
illegal because of the failure of the judge to conform with the essential requisites of (1) taking the depositions in writing
and (2) attaching them to the records of the case.
Held: While the search warrant is illegal, the return of the things seized cannot be ordered, since the possession of
Masiao tickets is prohibited.

C. Criminal liability and civil damages


Revised Penal Code Art. 128. Violation of domicile. The penalty of prision correccional in its minimum period
shall be imposed upon any public officer or employee who, not being authorized by judicial order, shall enter any
dwelling against the will of the owner thereof, search papers or other effects found therein without the previous
consent of such owner, or having surreptitiously entered said dwelling, and being required to leave the premises, shall
refuse to do so.
If the offense be committed in the night-time, or if any papers or effects not constituting evidence of a crime
be not returned immediately after the search made by the offender, the penalty shall be prision correccional in its
medium and maximum periods.
Revised Penal Code Art. 129. Search warrants maliciously obtained and abuse in the service of those legally
obtained. In addition to the liability attaching to the offender for the commission of any other offense, the penalty of
arresto mayor in its maximum period to prision correccional in its minimum period and a fine not exceeding P1,000
pesos shall be imposed upon any public officer or employee who shall procure a search warrant without just cause,
or, having legally procured the same, shall exceed his authority or use unnecessary severity in executing the same.
Revised Penal Code Art. 130. Searching domicile without witnesses. The penalty of arresto mayor in its medium
and maximum periods shall be imposed upon a public officer or employee who, in cases where a search is proper,
shall search the domicile, papers or other belongings of any person, in the absence of the latter, any member of his
family, or in their default, without the presence of two witnesses residing in the same locality.
Revised Penal Code Art. 206. Unjust interlocutory order. Any judge who shall knowingly render an unjust
interlocutory order or decree shall suffer the penalty of arresto mayor in its minimum period and suspension; but if he
shall have acted by reason of inexcusable negligence or ignorance and the interlocutory order or decree be manifestly
unjust, the penalty shall be suspension.
MHP Garments v. CA
Facts: Police seized Boy Scout paraphernalia from MHP. The items were not immediately returned despite demand.
Held: The persons directly (police) and indirectly (owner of warehouse where the items were stored) liable are
considered joint tortfeasors and liable for damages.

Motion to Quash

When warrant is not validly secured

When warrant is illegal, everything that was


seized was consequently illegally obtained and
inadmissible (no need to file motion to

Motion to Suppress Evidence

Integrity of the service of the warrant is


questioned, i.e. warrant was served at night
without any specification that it can be served at
night; the peace officer went beyond the

CRIMINAL PROCEDURE MIDTERMS REVIEWER | C 2016 41


suppress)
When a warrant is quashed, all items seized are
excluded
Filed by the accused or the person to be
searched

authority of the warrant


Not all items seized can be excluded; Only
those indicated in the motion
Filed by the accused (as it is in his interest that
the evidence be excluded)

Return (Rule 126, Section 12)

True inventory of items / property seized in


execution of warrant

Verified under oath by the police officer who


served the warrant (Note: The return is a formal
pleading entitled Return)

Includes date the search warrant was issued


and date when the search was made

(Rule 126, Sec. 12) delivered together with the


property seized to the judge who issued the
warrant

Receipt (Rule 126, Section 11)

Inventory of items / property seized in execution


of warrant

Not necessarily under oath

Made by the peace officer who served the


warrant

Given to:
o Lawful occupant of the premises in whose
presence the search and seizure were made
o In the absence of such occupant, left in the
premises searched with at least 2 witnesses
of sufficient age and discretion residing in the
same locality

Must be signed by such lawful occupant/


witnesses

Search incident to a lawful arrest

Objective is to arrest

There is an identified offense

Warrant of arrest is not necessary. However,


the arrest must be valid (Rule 113, Sec. 5)

As long as the arrest is valid, the search


incidental to such arrest will be valid

Stop and frisk

Search is the primary objective

There may not even be an arrest

Service of a search warrant


1. The peace officer goes to the place to be searched, armed with the search warrant
2. He introduces himself and announces his purposes
o If he is disallowed entry, he may break into the place
3. He proceeds to search the place
o Searches may only be done during the day, unless otherwise specified in the warrant
o Searches may only be done in the presence of residents or at least two witnesses from the same area
4. After the search, the peace officer gives a receipt to the resident of the place, or leaves the receipt where the
object seized was found
o The receipt has to be signed by the resident
5. The peace officer makes a return to the court
o The return must specify in detail the items seized, or else it is subject to exclusion

Possible Exam Questions:


1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.

What are the constitutional guarantees vs. unreasonable searches and seizures?
How long is a search warrant valid?
Return vs. Receipt
What is the two-witness rule?
Draft an application for a search warrant
In what court shall an application for a search warrant be filed?
What properties may be seized by a search warrant?
Exceptions to the search warrant requirement
Duty of the judge before issuing the search warrant
Time that a warrant shall be served
Remedies against a search warrant

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Part Three
Arrest
I. Nature and Definition
A. Definition
Rule 113 sec 1. Definition of arrest. Arrest is the taking of a person into custody in order that he may be bound to
answer for the commission of an offense.
Rule 113 sec 2. Arrest; how made. An arrest is made by an actual restraint of a person to be arrested, or by his
submission to the custody of the person making the arrest.
RIANO says:

A person is arrested for a specific and definite purpose to make him answer for the commission of an
offense.

Arrest necessarily implies control over the person under custody and a restraint on his liberty to the extent
that he is not free to leave on his own volition.
David v. Macapagal-Arroyo
Facts: PGMA issued PP1017, directing the AFP and PNP to immediately carry out appropriate actions and measures
to suppress and prevent acts of terrorism and lawless violence. All programs related to the celebration of EDSA 1
were cancelled and all rally permits issued by LGUs were revoked. David and Llamas were arrested without warrant
and charged with violation of BP 880 with inciting to sedition.
Held: Arrest invalid. The plain import of the language of the Constitution is that searches, seizures and arrests are
normally unreasonable unless authorized by a validly issued search warrant or warrant of arrest. There are
exceptions to this rule provided in Sec. 5 of Rule 113 of the Rules of Court. The case at bar however does not fall
under any of the exceptions. The only basis the police had was the observation that some rallyists were wearing tshirts with the invective "Oust Gloria Now" and their erroneous assumption that petitioner David was the leader of the
rally. Even if David was wearing it, such fact is insufficient to charge him with inciting to sedition and being a
participant of a rally is not unconstitutional as rallies are protected by the Bill of Rights.
Sanchez v. Demetriou
Facts: PNP issued a letter-invitation to Sanchez, requesting him to appear for an investigation at Camp Vicente Lim.
That same day, he was identified by witnesses and implicated him as a principal in a rape-slay and placed on arrest
status. After inquest, a warrant of arrest was served on him.
Held: The original warrantless arrest of the petitioner was illegal. Application of actual force, manual touching of the
body, physical restraint or a formal declaration of arrest is not required. It is enough that there be an intent on the part
of one of the parties to arrest the other and an intent on the part of the other to submit, under the belief and
impression that submission is necessary. In this case, the invitation was obviously a command or an order of arrest
that Sanchez could be hardly expected to defy. Under R.A. No. 7438, the requisites of a "custodial investigation" are
applicable even to a person not formally arrested but merely "invited" for questioning. Also, the warrantless arrest did
not come under any of the exceptions in Rule 113, Section 5.
People v. Sequino
Facts: Two hacienda employees were held up after withdrawing money from the bank. The police officer found a biodata with the name of Elpidio Melvida at the crime scene. Melvida was located and detained in the police station.
Police officer Luna claims that he only invited Melvida.
Held: The police officers actions amounted to an arrest. Regardless of Lunas claim to the contrary, accused Nenito
Melvida was arrested. An arrest is made "by an actual restraint of the person to be arrested, or by his submission to
the custody of the person making the arrest." Melvidas voluntarily going with Luna upon the latters "invitation" was a
submission to Lunas custody, and Luna believed that Melvida was a suspect in the robbery charged herein, hence,
Melvida was being held to answer for the commission of the said offense. There being no warrant, the arrest failed to
come under the exceptions stated in Sec. 5 of Rule 113.
Defensor-Santiago v. Vasquez
Facts: An order of arrest was issued against Defensor-Santiago. She posted bail and explained that she could not
appear before the court due to the fact that she got into an accident. Petitioner initially postulates that respondent
court never acquired jurisdiction over her person considering that she has neither been arrested nor has she

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voluntarily surrendered, aside from the fact that she has not validly posted bail since she never personally appeared
before said court.
Held: The Court rejected her thesis. Where after the filing of the complaint or information, a warrant for the arrest of
the accused is issued by the trial court and the accused either voluntarily submitted himself to the court or was duly
arrested, the court thereby acquired jurisdiction over the person of the accused. The court found that petitioner is
deemed to have voluntarily submitted herself to the jurisdiction of respondent court upon the filing of the Urgent Exparte Motion for Acceptance of Cash Bail Bond wherein she expressly sought leave that she be considered as
having placed herself under the jurisdiction of (the Sandiganbayan) for purposes of the required trial and other
proceedings.
Cojuanco v. Sandiganbayan
Fact: An order for the arrest of Eduardo Cojuanco was issued by the Sandiganbayan. Cojuanco asserts that "since
the warrant of arrest issued by respondent Sandiganbayan is null and void, it never acquired jurisdiction over the
person of the petitioner; as a consequence, it never acquired jurisdiction of the offense charged and to issue any
order adverse to the rights of petitioner, including an Order restricting his right to travel." Petitioners participation in
the proceedings before the Sandiganbayan was not confined to his opposition to the issuance of a warrant of arrest
but also covered other matters which called for respondent courts exercise of its jurisdiction.
Held: The rule is well-settled that the giving or posting of bail by the accused is tantamount to submission of his
person to the jurisdiction of the court. By posting bail, herein petitioner cannot claim exemption from the effect of being
subject to the jurisdiction of respondent court. If the appearance is for any purpose other than objecting to the courts
jurisdiction, the defendant is deemed to have submitted himself to the jurisdiction of the court.

Cf. Diplomatic and Parliamentary Immunities


Constitution, Art. VI sec 11. A Senator or Member of the House of Representatives shall, in all offenses punishable
by not more than six years imprisonment, be privileged from arrest while the Congress is in session. xxx

The immunity applies only while congress is in session, regular or special.

Immunity from arrest applies only to offenses punishable by NOT MORE THAN six years imprisonment.
RPC, Art 145. xxx [T]he penalty of prision correccional shall be imposed upon any public officer or employee who
shall, while the Assembly (Congress) is in regular or special session, arrest or search any member thereof, except in
case such member has committed a crime punishable under this Code by a penalty higher than prision mayor.

Notice that while, under the constitution, parliamentary immunity from arrest applies only to offenses
punishable by prision correctional or less (six years or less); Art. 145 of the RPC provides for the criminal
liability of any person who violates this parliamentary immunity except in crimes punishable by any penalty
higher than prision mayor (Read 12 years and one day or more).

Vienna Convention on Diplomatic Relations


Art. 31
1. A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State. XXX
4. The immunity of a diplomatic agent from the jurisdiction of the receiving State does not exempt him from the
jurisdiction of the sending State.
Art. 37
1. The members of the family of a diplomatic agent forming part of his household shall, if they are not nationals of the
receiving State, enjoy the privileges and immunities xxx.
2. Members of the administrative and technical staff of the mission, together with members of their families forming
part of their respective households, shall, if they are not nationals of or permanently resident in the receiving State,
enjoy the privileges and immunities xxx, except that the immunity from civil and administrative jurisdiction of the
receiving State specified in paragraph 1 of article 31 shall not extend to acts performed outside the course of their
duties. xxx
3. Members of the service staff of the mission who are not nationals of or permanently resident in the receiving State
shall enjoy immunity in respect of acts performed in the course of their duties xxx.
4. Private servants of members of the mission shall, if they are not nationals of or permanently resident in the
receiving State, xxx enjoy privileges and immunities only to the extent admitted by the receiving State. However, the
receiving State must exercise its jurisdiction over those persons in such a manner as not to interfere unduly with the
performance of the functions of the mission.

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In a nutshell: Diplomatic agents are generally immune from arrest, as they are not covered by the
Philippines criminal jurisdiction. They are, however, subject to the jurisdiction of the state they represent.
(Art 31) Their families and those in his household, administrative and technical staff likewise enjoy this
immunity if they are not Filipino citizens. (Art 37)

Visiting Forces Agreement. Article VI: Criminal Jurisdiction.


1. Subject to the provisions of this Article:
(a) Philippine authorities shall have jurisdiction over United States personnel with respect to offenses committed
within the Philippines and punishable under the law of the Philippines.
(b) United States military authorities shall have the right to exercise within the Philippines all criminal and
disciplinary jurisdiction conferred on them by the military law of the United States over United States personnel in
the Philippines.
2. (a) Philippine authorities exercise exclusive jurisdiction over United States personnel with respect to offenses,
including offenses relating to the security of the Philippines, punishable under the laws of the Philippines, but not
under the laws of the United States.
(b) United States authorities exercise exclusive jurisdiction over United States Personnel with respect to offenses,
including offenses relating to the security of the United States, punishable under the laws of the United States, but
not under the laws of the Philippines.
(c) For purposes of this paragraph and paragraph 3 of this Article, an offense relating to security means:
(1) treason;
(2) sabotage, espionage or violation of any law relating to national defense.
3. In cases where the right to exercise jurisdiction is concurrent, the following rules shall apply:
(a) Philippine authorities shall have the primary right to exercise jurisdiction over all offenses committed by United
States personnel, except in cases provided for in paragraphs 1 (b), 2 (b), and 3 (b) of this Article.
(b) United States military authorities shall have the primary right to exercise jurisdiction over United States
personnel subject to the military law of the United States in relation to:
(1) offenses solely against the property or security of the United States or offenses solely against the
property or person of United States personnel; and
(2) offenses arising out of any act or omission done in performance of official duty.
(c) The authorities of either government may request the authorites of the other government to waive their primary
right to exercise jurisdiction in a particular case.
(d) Recognizing the responsibility of the United States military authorities to maintain good order and discipline
among their forces, Philippine authorities will, upon request by the United States, waive their primary right to
exercise jurisdiction except in cases of particular importance to the Philippines. If the Government of the Philippines
determines that the case is of particular importance, it shall communicate such determination to the United States
authorities within twenty (20) days after the Philippine authorities receive the United States request.
(e) When the United States military commander determines that an offense charged by authorities of the
Philippines against United States personnel arises out of an act or omission done in the performance of official
duty, the commander shall issue a certificate setting forth such determination. This certificate will be transmitted to
the appropriate authorities of the Philippines and will constitute sufficient proof of performance of official duty for the
purposes of paragraph 3 (b) (2) of this Article. In those cases where the Government of the Philippines believes the
circumstances of the case require a review of the duty certificate, United States military authorities and Philippine
authorities shall consult immediately. Philippine authorities at the highest levels may also present any information
bearing on its validity. United States military authorities shall take full account of the Philippine position. Where
appropriate, United States military authorities will take disciplinary or other action against offenders in official duty
cases, and notify the Government of the Philippines of the actions taken.
(f) If the government having the primary right does not exercise jurisdiction, it shall notify the authorities of the other
government as soon as possible.
(g) The authorities of the Philippines and the United States shall notify each other of the disposition of all cases in
which both the authorities of the Philippines and the United States have the right to exercise jurisdiction.

In a nutshell: The Philippine government has exclusive jurisdiction over US military personnel who commit
offenses within our jurisdiction and punishable under our laws but not under US laws. For offenses
punishable under both, Philippine and US jurisdiction, Par. 3 of Art. IV of the VFA provides for who shall
exercise primary jurisdiction.
People v. Siao

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Facts: Accused ordered a 17-year-old boy to rape a 14-year-old girl by threatening them with his gun.
Held: Aggravating circumstance of use of a deadly weapon cannot be appreciated since it was not alleged in the
information. (Not sure how this is related but OC says this is the correct case. C2015)
OC says:

The remedy is to evict persons with diplomatic immunities outside of the country via deportation
proceedings.

B. Types
1. With Warrant of Arrest
a. When and How Warrant Issued
Consitution, Article III sec 2 The right of the people to be secure in their persons, houses, papers, and effects
against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no
search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge
after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly
describing the place to be searched and the persons or things to be seized.
Rule 112 sec 5 Resolution of investigating judge and its review. Within ten (10) days after the preliminary
investigation, the investigating judge shall transmit the resolution of the case to the provincial or city prosecutor, or to
the Ombudsman or his deputy in cases of offenses cognizable by the Sandiganbayan in the exercise of its original
jurisdiction, for appropriate action. The resolution shall state the findings of facts and the law supporting his action,
together with the record of the case which shall include: (a) the warrant, if the arrest is by virtue of a warrant; (b) the
affidavits, counter-affidavits and other supporting evidence of the parties; (c) the undertaking or bail of the accused
and the order for his release; (d) the transcripts of the proceedings during the preliminary investigation; and (e) the
order of cancellation of his bail bond, if the resolution is for the dismissal of the complaint.
Within thirty (30) days from receipt of the records, the provincial or city prosecutor, or the Ombudsman or his
deputy, as the case may be, shall review the resolution of the investigating judge on the existence of probable cause.
Their ruling shall expressly and clearly state the facts and the law on which it is based and the parties shall be
furnished with copies thereof. They shall order the release of an accused who is detained if no probable cause is
found against him.
Issuance of a Warrant of Arrest
1. The prosecutor files the information with the court.
2. The judge determines probable cause, using as basis the findings of the prosecutor.
3. Upon finding probable cause, the warrant of arrest is issued.
a. The warrant of arrest is delivered to the office, usually the police station nearest to the accuseds
residence.
b. The head of the office assigns the warrant to an officer for service.
4. If the judge does not see probable cause, he may ask for additional evidence from the prosecutor.
5. The prosecutor then submits a resolution to the judge which will become the basis for the determination of probable
cause.
6. If there is no probable cause, the judge can dismiss the case.
RIANO SAYS:

It is not mandatory and indispensable that the judge should personally examine the complainant and the
witnesses in his determination of probable cause for the issuance of warrants of arrest.
o The necessity for such arises only when there is an utter failure of the evidence to show the
existence of probable cause.

What the law requires as personal determination on the part of the judge is that he should not rely solely on
the report or certification of the investigating prosecutor.
OC says:

There is no application for a warrant of arrest. The judge will determine if a crime has been committed and
that the person to be arrested is the one who committed it, independent from the finding of the prosecutor.
The judge will also consider whether there is a need to arrest the person.

If there is no probable cause, the judge will order the prosecutor to present additional evidence.

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Probable cause is defined as the existence of facts and circumstances that would lead a reasonably
discreet and prudent person to believe that an offense has been committed and that it was likely committed
by the person sought to be arrested.
o This is different from the probable cause for the issuance of a search warrant, and from the
probable cause for the filing of an information.
Counsel for the accused may file a motion for judicial determination of probable cause within ten days from
the filing of the complaint to compel the judge to call for a hearing to determine probable cause for the
issuance of a warrant of arrest.
Under the rules, the judge can actually dismiss the case immediately once he finds that there is no probable
cause.
o But in reality, the judge has to respect the authority of the prosecutor in conducting a preliminary
investigation and to afford the prosecutor a chance to defend himself and his initial finding of
probable cause. So he asks the prosecutor to present more evidence.
If the warrant of arrest turns out to be invalid, everything obtained from the arrest will be excluded as
evidence.
When the accused submits himself to the court, there is no need for the judge to issue a warrant.
The following should be considered in determining whether a warrant should be issued:
o Probable cause with regard to culpability
o Existence of the elements of the Crime
o Necessity of Issuing a warrant of arrest

Placer v. Villanueva
Facts: Judge declined to issue a warrant of arrest based on the information filed and required the fiscal to submit the
affidavits of the prosecution witnesses and other documentary evidence to aid him in finding probable cause. After
submission of the documents, the judge remanded the information to the city fiscal for further investigation.
Held: The judge may order the fiscal to submit the affidavits of witnesses. The judge may rely upon the fiscal's
certification of the existence of probable cause and, on the basis thereof, issue a warrant of arrest. But such
certification does not bind the judge to come out with the warrant. The issuance of a warrant is not a mere ministerial
function; it calls for the exercise of judicial discretion on the part of the issuing magistrate. If on the face of the
information the judge finds no probable cause, he may disregard the fiscal's certification and require the submission of
the affidavits of witnesses to aid him in arriving at a conclusion as to the existence of a probable cause.
People v. Inting
Facts: Two lawyers (alumni of UP law) were accused of kidnapping with murder of a German national. Information
against them was based on the sworn statement/ extrajudicial confession of Security Guard Escolastico Umba. Judge
issued a warrant of arrest against the appellants based on the findings of probable cause of the panel of prosecutors.
Held: The term probable cause does not mean actual and positive cause nor does it import absolute certainty.
Probable cause does not require an inquiry into whether there is sufficient evidence for conviction; it is enough that it
is believed that the act or omission complained of constitutes the offense charged. Accordingly, before issuing a
warrant of arrest the judge must satisfy himself that based on the evidence submitted, there is sufficient proof that a
crime has been committed and that the person to be arrested is probably guilty thereof.
Salonga v. Cruz-Pano (1985)
Facts: A series of bombings occurred in Metro Manila from August to October 1980. Victor Burns Lovely, Jr. a
Philippine-born American-citizen from California, was almost killed as a result of the explosion of a small bomb inside
his room at the YMCA building in Manila. Ex-Senator Jovito Salonga was accused of sedition because of pictures
found in the possession of Lovely which included him. The respondent judge issued a resolution ordering the filing of
an information after finding that a prima facie case had been established against all of the forty person accused.
Held: The term "prima facie evidence" denotes evidence which, if unexplained or uncontradicted, is sufficient to
sustain the proposition it supports or to establish the facts, or to counterbalance the presumption of innocence to
warrant a conviction. The basis of the witness were documentary as well as physical and sworn statements referred
to him or taken by him personally. Clearly, there was no personal knowledge by the witnesses regarding the
participation of Salonga. Such testimony, being based on affidavits of other persons and purely hearsay, can hardly
qualify as prima facie evidence of subversion. It should not have been given credence by the court in the first place.
Hearsay evidence, whether objected to or not, has no probative value as the affiant could not have been crossexamined on the facts stated therein.
Lim v. Felix

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Facts: Congressman Espinosa was assassinated. The investigator filed an amended complaint with MTC accusing,
among others, Vicente Lim Sr. and Mayor Susana Lim of the crime of multiple murder and frustrated murder. RTC
issued warrants with no bail simply by relying on the prosecutors certification and recommendation.
Held: The Constitution does not require personal examination of the complainant and the witnesses by the judge to
issue a warrant of arrest. What the constitution requires is the exclusive and personal responsibility of the judge to
satisfy himself of the existence of probable cause. The extent of reliance on evidence gathered by the officers
depends on the circumstances of each case and is subject to the judges sound discretion.
Pangandaman v. Casar
Facts: A shooting incident occurred which left at least five persons dead and two others wounded. On the next day, a
letter-complaint was filed with the Provincial Prosecutor, which immediately endorsed the case to Judge Casar. The
judge examined personally all three witnesses and approved the complaint and issued the corresponding warrant of
arrest against 14 petitioners (who were named by the witnesses) and 50 John Does. Said warrant of arrest was
issued on the same day the criminal complaint was filed.
Held: Completion of the preliminary investigation is not required before warrant of arrest can be issued. What the
Rule provides is that no complaint or information for an offense cognizable by the Regional Trial Court may be filed
without completing that procedure. But nowhere is it provided that the procedure must be completed before a warrant
of arrest may issue. Indeed, it is the contrary that is true. The present Section 6 of the same Rule 112 clearly
authorizes the municipal trial court to order the respondents arrest even before opening the second phase of the
investigation if said court is satisfied that a probable cause exists and there is a necessity to place the respondent
under immediate custody in order not to frustrate the ends of justice.
DOJ-NPS Manual for Prosecutors, Part VI, Sec 1. Definition of probable cause as a ground for an arrest or
issuance of a warrant of arrest. - Probable cause is such facts and circumstances which would lead a reasonably
discreet and prudent man to believe that an offense has been committed by the person sought to be arrested.

b. How Effected
Rule 113, sec 3. Duty of arresting officer It shall be the duty of the officer executing the warrant to arrest the
accused and to deliver him to the nearest police station or jail without unnecessary delay.
OC says:

Are handcuffs required if the accused is willing to come with the police? The phrase no greater restraint
than necessary can be argued both ways:
o For the police: it can be said that handcuffs are not prohibited because it is a necessary and
reasonable restraint.
o For the accused: It can be said that handcuffs are not necessary because the accused was
voluntarily going with the police.

The use of handcuffs is a valid restraint according to international standards and has already become a
generally accepted means to effect an arrest.
Rule 113 sec 4. Execution of warrant The head of the office to whom the warrant of arrest was delivered for
execution shall cause the warrant to be executed within ten (10) days from its receipt. Within ten (10) days after the
expiration of the period, the officer to whom it was assigned for execution shall make a report to the judge who issued
the warrant. In case of his failure to execute the warrant, he shall state the reasons therefor.

Warrant is valid until (1) accused is arrested or (2) until accused posts bail, even if he was not yet arrested
(this is considered as voluntarily submitting to the jurisdiction of the court).
o Note: The court makes an order recalling the warrant once it is served.
o Unlike a search warrant, a warrant of arrest does not become void after the lapse of the 10-day
period.
A warrant is no longer necessary when:
o A person is already under the custody of the court.
o The accused submits to the jurisdiction of the court.
o If the judge finds that there is no necessity for placing the accused under custody.
An alias warrant is not in the rules. It is just a safety measure to make sure that the warrant has not become
stale.
Private citizens cannot serve a warrant.

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The warrant is delivered to the warrant section of the police station. The warrant section is the one which
makes sure that the warrant is executed.
Return: A report is made to the judge who issued the warrant. It is a document from the person executing the
warrant specifying the action taken. The report includes:
o
an inventory of the items seized incident to arrest:

If the inventory is not included, the items can be excluded evidence.

If the items are not related to the charge, there is a legal obligation on the part of police to
return/release said items.
o a medical certificate showing that there was no unnecessary force employed.

Rule 113 sec 6. Time of making arrest. An arrest may be made on any day and at any time of the day or night.
Rule 113 sec 7. Method of arrest by officer by virtue of warrant. When making an arrest by virtue of a warrant, the
officer shall inform the person to be arrested of the cause of the arrest and of the fact 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 when the
giving of such information will imperil the arrest. The officer need not have the warrant in his possession at the time of
the arrest but after the arrest, if the person arrested so requires, the warrant shall be shown to him as soon as
practicable.
OC says:

The accused must be informed of his rights. The Miranda rights should be read upon arrest.

The failure to give Miranda warnings or to improperly give such warning has legal implications.

The giving of the Miranda warnings must be included in the affidavit of arrest or return.
People v. Lumayok
Facts: Gloria Bemos went missing. A manhunt by Edwin Rico and neighbors was conducted. They found her bag,
then found a black comb 100 m. from it. The comb belonged to Lumayok. After a while, the buried body was found by
Rico.
Held: Lumayoks extrajudicial confession cannot be admitted as evidence because the proper procedure for arrest
was not followed by the officers. He was not informed of his constitutional rights. He had no counsel present. The
confession was in a language he could not understand and there was no proof that it was explained to him.
Pagalunan v. Albior
Facts: Accused was convicted of robbery with homicide with rape in the trial court because of his sworn statement.
On appeal, the accused assailed the statement since he did not understand Tagalog, the language in which the extrajudicial confession was written, being a Cebuano. He just signed it because he thought that by doing so he would be
released.
Held: Sworn statement is not valid. At the time accused was arrested, he was without counsel. He also waived his
right to counsel without a counsel. The presence of an interpreter during the interrogation was not enough because
Albior was deprived of the opportunity to comprehend through his own reading what he was signing.

c. Assistance; Breaking into building or enclosure


Rule 113 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.
RIANO says:

Only officers (to the exclusion of private persons) can summon assistance in effecting an arrest.
Rule 113 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.
Rule 113 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.

2. Warrantless

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a. When Justified
Rule 113 sec 5. Arrest without a warrant; when lawful. - A peace officer or a private person may, without a warrant,
arrest a person:
(a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit
an offense;
(b) 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; and
(c) When the person to be arrested is a prisoner who has escaped from a 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.
In cases falling under paragraph (a) and (b) above, the person arrested without a warrant shall be forthwith delivered
to the nearest police station or jail and shall be proceeded against in accordance with section 7 of Rule 112.
OC says:
Paragraph (a)

Rationale: it is difficult for the police to wait until the crime is actually committed before arresting the person.

Presumption is that polices experience will allow him to judge whether or not a crime is to be committed.
Since it is very subjective, this provision is much abused.
Paragraph (b)

Personal knowledge of the facts and circumstances does not mean seeing the crime. It does not need
visual information, otherwise blind witnesses would be excluded by such interpretation when the law does
not exclude them.

Personal knowledge does not mean personal encounter but facts which lead a person to believe that an
offense has been committed. Rule requires personal knowledge of facts and circumstances NOT with
respect to the offense for this would come under paragraph (a) of section 5.

Facts and circumstances can be an eyewitness account plus other circumstances. If not based on these,
the arrest becomes invalid and the evidence will be inadmissible.

Arrest should be made immediately after the commission of the offense under this exception.
Note: The exceptions should be construed strictly. The burden is on the government to prove the validity of the
search/ arrest.
RIANO says:

There are other grounds for warrantless arrests:


o Under Section 13 of Rule 113, 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.
o Under Section 23 of Rule 114, for the purpose of surrendering the accused, the bondsmen may
arrest him or, upon written authority endorsed on a certified copy of the undertaking, cause him to
be arrested by a police officer or any other person of suitable age and discretion.

The warrantless arrest may be made not only by a peace officer but also by a private person. When made by
the latter, it is called a citizens arrest.
Paragraph (a)

There must be outward indications that a crime is being committed and that it can be atleast inferred from
the acts that a crime is being committed.
Paragraph (b)

The hot pursuit exception requires two stringent requirements:


o An offense has just been committed; and
o The person making the arrest has personal knowledge of the facts indicating that the person to be
arrested has committed it. (citing People v. Agojo)
People v. Tudtud
Facts: A police team in civilian clothes posted themselves at the bus stop where accused was to disembark. The
police asked the accused to open the box he was carrying, where they found the marijuana leaves. Police arrested
him.

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Held: Invalid arrest. Accused was not performing any overt act, or acting in a suspicious manner that would show that
a crime has been, was being or was about to be committed. The knowledge of the possession of the box came from
an informant, and, hence, not within the personal knowledge on the part of the arresting officer.
People v. Chua
Facts: Police arrested the accused on the basis of informant reports. They sae a plastic container which contained
shabu, in his back pocket as he was getting his wallet, They proceeded to search his car where they found bullets of a
.22 caliber and a Zest-O juice box containing more shabu.
Held: No basis for warrantless arrest. No overt acts committed in the presence of police. Reliable information alone,
absent any overt act indicative of a felonious enterprise in the presence and within the view of the arresting officers, is
not sufficient to constitute probable cause that would justify an in flagrante delicto arrest. For there to be an in
flagrante delicto arrest, two elements must concur:
(1) the person to be arrested must execute an overt act indicating that he has just committed, is actually
committing, or is attempting to commit a crime; and
(2) such overt act is done in the presence or within the view of the arresting officer.
These two elements are lacking in the case at bar. Neither is it a stop and frisk either because the arrest preceded the
search of the vehicle.
People v. Mendez
Facts: Accused Mendez was arrested without a warrant based on the knowledge of his guilt by the arresting officers.
Cabagtong, another accused, was arrested without warrant by Mejica, a member of the Citizens Crime Watch, on the
basis of the citizens arrest law. Mejica was neither a police officer nor a witness to the incident. He was not a member
of the investigating team.
Held: Probable cause did not exist in the arrest of Mendez. The court did not believe that the officer who arrested
Mendez has personal knowledge of the commission of the offense to justify the warrantless arrest. Personal
knowledge of facts in arrests without warrant must be based on probable cause which means an actual belief or
reasonable grounds of suspicion. The grounds of suspicion are reasonable when it is based on actual facts, i.e.,
when it is supported by circumstances sufficiently strong in themselves to create the probable cause of guilt of the
person to be arrested. This also applies to citizens arrest, since the intention is to hold a person accountable for an
offense. As to Cabagtongs arrest, court declared that Mejica (a private person) did not have any personal knowledge
of the incident. He merely based his arrest on the information supplied by another person to the police. This does not
constitute personal knowledge to warrant a citizens arrest.
People v. Doria
Facts: There was a buy bust operation wherein one brick of dried marijuana was found on Juns person after frisking,
and 10 bricks in plain sight inside Neneths house.
Held: Juns arrest is a valid in flagrante delicto arrest being a product of the buy-bust operation. Neneths arrest not
valid, as there was no showing that she was involved in the buy bust operation. Probable cause must be personally
known to the arresting officers.
Cadua v. CA
Facts: Accused was about to pull something tucked at the rights side of his waist, which turned out to be a .38m paltik
revolver. Accused argues that since the complainants later on disclaimed petitioner's identity as the holdupper and
that no case of robbery was filed against him, any probable cause or personal knowledge thereof, alleged by the
arresting officers, had been totally negated.
Held: Valid warrantless arrest. The fact that the robbery case was never brought to trial does not mean that the
legality of the arrest was tainted, for such arrest does not depend upon the indubitable existence of the crime. The
legality of apprehending the accused would not depend on the actual commission of the crime but upon the nature of
the deed, where from such characterization it may reasonably be inferred by the officer or functionary to whom the law
at the moment leaves the decision for the urgent purpose of suspending the liberty of the citizen. Also, the arresting
officers reasonably acted upon personal knowledge at the time, and not on unreliable hearsay information, to effect a
lawful arrest.
People v. Montilla
Facts: Information relayed was that there would be delivery of marijuana at Barangay Salitran by a courier coming
from Baguio City in the "early morning" of June 20, 1994. Accused was apprehended near a waiting shed on the basis
of an informant who pointed out the accused as the latter alighted from a passenger jeepney.
Held: Informant proved to be reliable. Such tip-offs are sometimes successful in the apprehension of the accused, as
in this case. Police did not have sufficient information or time to apply for a search warrant. If the courts of justice are

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to be of understanding assistance to our law enforcement agencies, it is necessary to adopt a realistic appreciation of
the physical and tactical problems of the latter, instead of critically viewing them from the placid and clinical
environment of judicial chambers.
People v. Burgos
Facts: Accused was charged for illegal possession of firearms in furtherance of subversion on the basis of
information given by a third person that the accused recruited him to join the NPA. Police had no search warrant or
warrant of arrest.
Held: Invalid arrest. There was no showing that the accused was an actual member of the NPA. That a crime has
actually been committed is an essential precondition. It is not enough to suspect that a crime may have been
committed. The fact of the commission of the offense must be undisputed. The test of reasonable ground applies only
to the identity of the perpetrator.
People v. Jayson
Facts: Police received a radio message from camp directing them to ihaw-ihaw nightclub where there had been a
shooting. Upon arriving, the bystanders pointed to Jayson as the one who shot the victim. They then arrested him
based on personal knowledge of the death of the victim and of facts indicating that accused appellant was the
assailant.
Held: Valid warrantless arrest. In the case at bar there was a shooting. The policemen summoned to the scene of the
crime found the victim. Accused-appellant was pointed to them as the assailant only moments after the shooting. In
fact accused-appellant had not gone very far (only ten meters away from the Ihaw-Ihaw), although he was then
fleeing. The arresting officers thus acted on the basis of personal knowledge of the death of the victim and of facts
indicating that accused-appellant was the assailant.
Terry v. Ohio
Facts: McFadden (a policeman) observed two suspicious persons (Terry and Chitton) loitering around a store,
walking back and forth along an identical route, pausing stare in the same store window for a total of about 24 times.
rd
Every time they completed a route, they convened at a corner and at one point they were joined by a 3 man (Katz)
who left swiftly. After patting down the outer clothing of the three men, McFadden was able to recover a .38 caliber
revolver from Katz and another revolver from Chitton.
Held: Valid search and seizure. Where the officer has reason to believe that he is dealing with an armed and
dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime, he would be
warranted to conduct the frisk for the protection of himself and others. He needed to take swift measures to discover
the true facts and neutralize the threat of harm if it materialized.

b. Method of Arrest by Officer


Rule 113 sec 8. Method of arrest by officer without warrant. When making an arrest without a warrant, the officer
shall inform the person to be 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 so to inform him, or when the giving of such information will imperil the arrest.
Cf. In People v. Mahinay, the court laid down the Guidelines, procedures and duties of officers arresting, detaining,
inviting, or investigating at the time of the arrest or at custodial investigation (in accordance with the Constitution,
jurisprudence and Republic Act No. 7438):
1. The person arrested, detained, invited or under custodial investigation must be informed in a language
known to and understood by him of the reason for the arrest and he must be shown the warrant of arrest, if
any; Every other warnings, information or communication must be in a language known to and understood
by said person;
2. He must be warned that he has a right to remain silent and that any statement he makes may be used as
evidence against him;
3. He must be informed that he has the right to be assisted at all times and have the presence of an
independent and competent lawyer, preferably of his own choice;
4. He must be informed that if he has no lawyer or cannot afford the services of a lawyer, one will be
provided for him; and that a lawyer may also be engaged by any person in his behalf, or may be appointed
by the court upon petition of the person arrested or one acting in his behalf;
5. That whether or not the person arrested has a lawyer, he must be informed that no custodial investigation
in any form shall be conducted except in the presence of his counsel or after a valid waiver has been made;

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6. The person arrested must be informed that, at any time, he has the right to communicate or confer by the
most expedient means - telephone, radio, letter or messenger - with his lawyer (either retained or appointed),
any member of his immediate family, or any medical doctor, priest or minister chosen by him or by any one
from his immediate family or by his counsel, or be visited by/confer with duly accredited national or
international non-government organization. It shall be the responsibility of the officer to ensure that this is
accomplished;
7. He must be informed that he has the right to waive any of said rights provided it is made voluntarily,
knowingly and intelligently and ensure that he understood the same;
8. In addition, if the person arrested waives his right to a lawyer, he must be informed that it must be done in
writing AND in the presence of counsel, otherwise, he must be warned that the waiver is void even if he
insist on his waiver and chooses to speak;
9. That the person arrested must be informed that he may indicate in any manner at any time or stage of the
process that he does not wish to be questioned with warning that once he makes such indication, the police
may not interrogate him if the same had not yet commenced, or the interrogation must ceased if it has
already begun;
10. The person arrested must be informed that his initial waiver of his right to remain silent, the right to
counsel or any of his rights does not bar him from invoking it at any time during the process, regardless of
whether he may have answered some questions or volunteered some statements;
11. He must also be informed that any statement or evidence, as the case may be, obtained in violation of
any of the foregoing, whether inculpatory or exculpatory, in whole or in part, shall be inadmissible in
evidence.
People v. Mahinay
Facts: Accused Mahinay raped and killed a 12-year-old girl and fled the scene. After being caught, he executed an
extra-judicial confession admitting to the crime. Accused claimed on appeal that he was only assisted by counsel
when he was signing the confession, not while it was being made, hence a violation of his constitutional right to
counsel.
Held: Confession admissible. The process of obtaining extrajudicial confession was proper. Counsel was there to
explain his constitutional rights. He was read his Miranda rights, reduced them in writing, and waiver was done in the
presence of counsel.

c. Method of Arrest by a Private Person


Rule 113 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 cause 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.
OC says:

If the arrest was effected by a private person, an affidavit is executed instead of a return.
o The exclusionary rule does not apply in citizens arrest by virtue of People v. Marti. However, Marti
does not apply if the police are using a private citizen to arrest the accused.

d. Post-Arrest Procedure
Rule 112 sec 6. When accused lawfully arrested without warrant. When a person is lawfully arrested without a
warrant involving an offense which requires a preliminary investigation, the complaint or information may be filed by a
prosecutor without need of such investigation provided an inquest has been conducted in accordance with existing
rules. In the absence or unavailability of an inquest prosecutor, the complaint may be filed by the offended party or a
peace office directly with the proper court on the basis of the affidavit of the offended party or arresting officer or
person.
Before the complaint or information is filed, the person arrested may ask for a preliminary investigation in
accordance with this Rule, but he must sign a waiver of the provisions of Article 125 of the Revised Penal Code, as
amended, in the presence of his counsel. Notwithstanding the waiver, he may apply for bail and the investigation must
be terminated within fifteen (15) days from its inception.
After the filing of the complaint or information in court without a preliminary investigation, the accused may,
within five (5) days from the time he learns of its filing, ask for a preliminary investigation with the same right to
adduce evidence in his defense as provided in this Rule.

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e. Exceptions Construed Strictly
David v. Macapagal-Arroyo (supra)
Facts: PGMA issued PP1017, directing the AFP and PNP to immediately carry out appropriate actions and measures
to suppress and prevent acts of terrorism and lawless violence. All programs related to the celebration of EDSA 1
were cancelled and all rally permits issued by LGUs were revoked. David and Llamas were arrested without warrant
and charged with violation of BP 880 with inciting to sedition.
Held: Arrest invalid. The plain import of the language of the Constitution is that searches, seizures and arrests are
normally unreasonable unless authorized by a validly issued search warrant or warrant of arrest. There are
exceptions to this rule provided in Sec. 5 of Rule 113 of the Rules of Court. The case at bar however does not fall
under any of the exceptions. The only basis the police had was the observation that some rallyists were wearing tshirts with the invective "Oust Gloria Now" and their erroneous assumption that petitioner David was the leader of the
rally. Even if David was wearing it, such fact is insufficient to charge him with inciting to sedition and being a
participant of a rally is not unconstitutional as rallies are protected by the Bill of Rights.
People v. Valdez
Facts: A police officer boarded a Dangwa Tranco bus bound for Manila and identified the accused as described by
his informant. He ordered the accused to get off the bus and remove the contents of the bag he was bringing.
Marijuana was found in a lunch box and a jug.
Held: Valid warrantless arrest. A statute, rule or situation which allows exceptions to the requirement of a warrant of
arrest or search warrant must be strictly construed. We cannot liberally consider arrests or seizures without warrant or
extend their application beyond the cases specifically provided or allowed by law. To do so would infringe upon
personal liberty and set back a basic right so often violated and yet, so deserving of full protection and vindication. In
this case, appellant was caught in flagrante since he was carrying marijuana at the time of his arrest. A crime was
actually being committed by the appellant, thus, the search made upon his personal effects falls squarely under
paragraph (a) of the foregoing provisions of law, which allow a warrantless search incident to lawful arrest. Under the
circumstances of the case, there was sufficient probable cause for said police officer to believe that appellant was
then and there committing a crime.
People v. Burgos
Facts: Accused was charged for illegal possession of firearms in furtherance of subversion on the basis of
information given by a third person that the accused recruited him to join the NPA. Police had no search warrant or
warrant of arrest.
Held: Invalid arrest. In arrests without a warrant under Section 6(b), however, it is not enough that there is reasonable
ground to believe that the person to be arrested has committed a crime. A crime must in fact or actually have been
committed first. In this case, the accused was arrested on the sole basis of Masamlok's verbal report. The authorities
were still fishing for evidence of a crime not yet ascertained. If an arrest without warrant is unlawful at the moment it is
made, generally nothing that happened or is discovered afterwards can make it lawful. The fruit of a poisoned tree is
necessarily also tainted.

f. Special Rule for Juveniles in Conflict with the Law


Revised Rule on Juveniles in Conflict with the Law (2009), Sec 11. Duties of a Person in Authority Taking a Child
into Custody. - Any person taking into custody a child in conflict with the law shall:
(a) Assign an alias to the child;
(b) Ensure that the blotter details containing the true name of the child, if any, are modified, to reflect the alias by
which the child shall be known throughout the proceedings;
(c) Explain to the child in simple language and in a dialect that can be understood the reason for placing the child
under custody, and the offense allegedly committed;
(d) Advise the child of his/her constitutional rights in a language or dialect understandable to the child;
(e) Present proper identification to the child;
(f) Refrain from using vulgar or profane words and from sexually harassing or abusing, or making sexual
advances on the child;
(g) Avoid displaying or using any firearm, weapon, handcuffs or other instrument of force or restraint, unless
absolutely necessary and only after all methods of control have been exhausted and have failed;
(h) Avoid violence or unnecessary force and refrain from subjecting the child to greater restraint than is
necessary for apprehension and custody;

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(i) Ensure that a body search of the child is done only by a law enforcement officer of the same gender as that of
the child;
(j) Ensure expedited transfer of the child by immediately, or not later than eight (8) hours after apprehension,
turning over custody of the child to the local social welfare and development office or other accredited nongovernment organizations;
(k) Notify the child's parents, guardians or custodians or in their absence, the child's nearest relative and the
Public Attorney's Office of the child's apprehension;
(l) Ensure that the child is not locked up in a jail or detention cell during the investigation;
(m) Bring the child immediately to an available government medical or health officer for a thorough physical and
mental examination;
(n) Ensure that should detention of the child in conflict with the law be necessary, the segregation of the child be
secured in quarters separate from that of the opposite sex and adult offenders, except where a child is taken into
custody for reasons related to armed conflict, either as combatant, courier, guide or spy, and families are
accommodated as family units in which case, the child shall not be separated from the family;
(o) Record all the procedures undertaken in the initial investigation including the following: whether handcuffs or
other instruments of restraint were used, and if so, the reason for such use; that the parents or guardian of the
child, the Department of Social Welfare and Development, and the Public Attorney's Office were informed of the
taking into custody of the child and the details thereof; the measures that were undertaken to determine the age
of child, and the precise details of the physical and medical examination or in case of failure to submit a child to
such examination, the reason therefore; and
(p) Ensure that all statements signed by the child during the investigation are witnessed and signed by the child's
parents or guardian, social worker or legal counsel in attendance.
Revised Rule on Juveniles in Conflict with the Law (2009), Sec 13. Taking Custody of a Child Without a
Warrant. - The law enforcement officer or a private person taking into custody a child in conflict with the law without a
warrant shall observe the provisions in Sections 5, 8 and 9 of Rule 113 of the Revised Rules of Criminal Procedure
and shall forthwith deliver the child to the nearest police station. The child shall be proceeded against in accordance
with Section 7 of Rule 112 of the Rules of Criminal Procedure.

3. John Doe Warrants


People v. Veloso
Facts: Police conducted a raid by virtue of a search warrant of the building in Calle Arzobispo which was being used
as a gambling house. The defense argues that the search warrant did not have the accuseds name, but instead had
the pseudonym John Doe.
Held: Search and Arrest Valid. While what is in question is the search warrant, the court discussed the case along the
lines of John Doe arrest warrants, in view of the paucity of authority pertaining to John Doe search warrants. A
warrant by the name of John Doe for the apprehension of a person whose true name is unknown is void without other
and further descriptions of the person to be apprehended. The warrant in this case stated that John Doe had
gambling apparatus in his possession, and that this John Doe was the accused and the manager of the gambling
house. The police could identify him without difficulty.
Pangandaman v. Casar
Facts: A shooting incident occurred which left at least five persons dead and two others wounded. On the next day, a
letter-complaint was filed with the Provincial Prosecutor, which immediately endorsed the case to Judge Casar. The
judge examined personally all three witnesses and approved the complaint and issued the corresponding warrant of
arrest against 14 petitioners (who were named by the witnesses) and 50 John Does. Said warrant of arrest was
issued on the same day the criminal complaint was filed.
Held: The warrant is void insofar as it is issued against 50 John Does. Not one of whom the witnesses to the
complaint could or would identify the 50 John Does. It is of the nature of a general warrant, one of a class of writs long
proscribed as unconstitutional and once anathematized as totally subversive of the liberty of the subject. It is clearly
violative of the constitutional injunction that warrants of arrest should particularly describe the person or persons to be
seized.
Cf.
R.A.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

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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 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.

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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 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.
Cf. Proclamation 1017 (2006) PROCLAMATION DECLARING A STATE OF NATIONAL EMERGENCY
xxx
NOW, THEREFORE, I Gloria Macapagal-Arroyo, President of the Republic of the Philippines and Commander-inChief of the Armed Forces of the Philippines, by virtue of the powers vested upon me by Section 18, Article 7 of the
Philippine Constitution which states that: " The Presidentwhenever it becomes necessary,may call out (the)
armed forces to prevent or suppressrebellion, " and in my capacity as their Commander-in-Chief, do hereby
command the Armed Forces of the Philippines, to maintain law and order throughout the Philippines, prevent or
suppress all forms of lawless violence as well any act of insurrection or rebellion and to enforce obedience to all the
laws and to all decrees, orders and regulations promulgated by me personally or upon my direction; and as provided
in Section 17, Article 12 of the Constitution do hereby declare a State of National Emergency.
Xxx

II. Custodial Investigation


A. Source, definition, scope and procedure
1. Definition
Custodial Investigation:

Commences when a person is taken into custody and is singled out as a suspect in the commission of a
crime under investigation and the police begin to ask questions on the suspects participation therein and
which tend to elicit an admission (People v. Pasudag)

Begins when it is no longer a general inquiry but starts to focus on a particular person as a suspect, ie.,
when the police investigator starts interrogating or exacting a confession from the suspect in connection with
an alleged offense (People v. Valdez)

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The investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a particular
suspect, the suspect has been taken into police custody, the police carry out a process of interrogations that
lends itself to eliciting incriminating statements. (Escobedo v. Illinois as cited in Bernas)
Right to counsel and other rights in ART III Sec 12 of the Constitution attach at this stage (People v. Valdez)
Part of criminal procedure, not a police measure.
During a custodial investigation, the police interrogate the suspect on facts known to him regarding the
offense. Procedurally, this is needed in order to strengthen the case against the accused and to gain
evidence for the filing of an information. In practice, the police engage in a custodial investigation in order to
get an extrajudicial confession from the accused.
"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. (RA 7438)
Investigation includes those done by the NBI and other police agencies.

Rights of the Accused during Custodial Investigation

These rights are vested in the Constitution, it is not required that the accused asserts his rights but it must
still be observed.

ART III Sec 12 provides for the Miranda Rights, these rights were adapted from Miranda vs. Arizona.

A person being served a warrant of arrest, being lawfully arrested without a warrant and under custodial
investigation must be given a Miranda.

An extrajudicial confession must be intelligently made, in the presence of independent and competent
counsel, it must be express and in writing.

Miranda Rights:
1. The person in custody must be informed at the outset in clear and unequivocal terms that he has a right
to remain silent.
2. After being so informed, he must be told that anything he says can and will be used against him in court.
3. He must be clearly informed that he has the right to consult with a lawyer and to have the lawyer with
him during the interrogation. He does not have to ask for a lawyer. The investigators should tell him that
he has the right to counsel at that point.
4. He should be warned that not only has he the right to consult with a lawyer but also that if he is indigent,
a lawyer will be appointed to represent him.
5. Interrogations must be done in the presence of counsel.
6. If the foregoing protections and warnings are not demonstrated during the trial to have been observed
by the prosecution, no evidence obtained as a result of the interrogation can be used against him.
People v. Pasudag
Facts: Marijuana plants were seen in Pasudags backyard. The police team photographed the place and confiscated
marijuana plants by uprooting them. Pasudag admitted that he owns the plants and signed the confiscation report.
The solicitor general contended that he was not under custodial investigation.
Held: Pasudag was already under custodial investigation when he signed the confiscation report. Custodial
investigation commences when a person is taken into custody and is singled out at as a suspect in the commission of
a crime under investigation and the police officers begin to ask questions on the suspects participation therein and
tends to elicit an admission. Even if the confession or admission were truthful, if it was made without the assistance of
counsel and without a valid waiver of such assistance, the confession is inadmissible in evidence.
People v. Zuela
Facts: The accused were arrested for allegedly shooting and stabbing three people that led to their deaths. An arrest
was made without a warrant. The police officers immediately conducted an investigation by asking questions, without
the presence of counsel. The accused signed the individual statements before Judge Lore Valecia of the MCTC.
Held: Their extrajudicial statements given during the custodial investigation are inadmissible. They were made
without counsel and there was no proof that they waived their right to counsel. Scarcity of lawyers is not an excuse to
forego this requirement. The contents of the statement were repeated during trial and the accused admitted to the
contents, they were still found guilty.
People v. Valdez
Facts: Police were tipped that Valdez was planting marijuana. They found that he did have marijuana near his house.
An investigation was conducted in order to verify the information, likewise the chief of police issued instructions to
arrest the appellant as a suspected cultivator.

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Held: At the time the police talked to the appellant in his farm, the latter was already under investigation as a suspect.
The questioning was no longer a general inquiry. An investigation begins when it starts to focus on a particular person
as a suspect. The moment the
People v. Rodriguez
Facts: Rodriguez executed a confession that he and three others, killed the security guard. That same day, a PAO
lawyer came to his aid after the confession was taken down.
Held: Confession is inadmissible. When they were arrested, they should have been afforded their Miranda rights. In
order for confession to be admissible it must be 1. Voluntary 2. Made with the assistance of competent and
independent counsel 3. It must be express 4. In writing. In this case, the second requisite was missing.
People v. Del Rosario
Facts: The Accused was charged with robbery with homicide. The police testified that they invited the accused to the
station for questioning.
Held: Custodial investigation encompassed any question initiated by law enforcers after a person has been taken into
custody or otherwise deprived of his freedom of action in any significant way. This was broadened to include
extension of invitations to persons investigated in connection with an offense. From the time the accused was invited,
he was already under custodial investigation and his rights had been violated because at the time he was not
informed of his rights. It was not proved that he waived his right to remain silent hence, admission of participation in
the crime is inadmissible.
Cf.
Babst v. NIB
Facts: Letters were sent to the petitioners from the NIB requesting them to appear before the special committee at
the Philippine army officers club house to she light on confidential matters being looked into by the committee. A libel
suit was also filed against them.
Held: The invitation can assume a different appearance since it came from high ranking military officers at a time
when the country has just emerged from martial rule. It can easily be taken, not as a voluntary invitation but as an
authoritative command which one can only defy at his peril.
People v. Mulueta
Facts: Police requested the accused to go with them for an investigation. He was accompanied by two others. He
made a confession without a statement of his rights.
Held: A confession is not valid and inadmissible in evidence when it is obtained in violation of any of the rights of
persons under custodial investigation. The right to be informed is different from merely requiring the officers to inform
the accused of his rights; he must be able to understand said rights. Also, it was shown that the supposed invitation
already amounted to custodial investigation.
People v. Tan
Facts: Accused was invited by the police regarding a death and two robbery cases, where he gave an explicit
account of what happened on occasion of the death. The police admitted that they did not inform the accused of his
rights or reduced the confession in writing.
Held: The confession is inadmissible. The accused must be informed of his right to remain silent and the right to
counsel. A confession must also be in writing.
People v. Bariquit
Facts: Upon the arrest of the accused, the police already started asking questions about the crime even while walking
along the highway on their way to the police station.
Held: The interrogation while walking already falls under custodial investigation. The place of interrogation cannot
determine the existence or absence of custodial investigation, and it is to be noted that from the way the police
questioned the accused, the former already presumed that the latter was the perpetrator of the crime.

2. Duty of police during custodial investigation; procedure

It is the duty of the police to make sure that the accused is given a Miranda.
The police must make sure that a counsel is present during the custodial investigation. In practice, the police
would contact the counsel of choice of the accused and if he or she is unavailable, would provide someone
from PAO or the IBP.

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It is also the duty of the police to write down the custodial investigation report. It must be read to the accused
in the presence of counsel.

Miranda v. Arizona
Facts: In a series of cases, there is usually an incommunicado interrogation of the individuals in a police-dominated
atmosphere, resulting in self-incriminating statements without full warning of his constitutional rights. The police
resorts to torture or physical brutality in order to extort confessions.
Held: Procedural safeguards must be employed to protect the rights of the accused. The accused must be appraised
of his rights before questioning.
People v. Obrero
Facts: The police testified that the accused gave a written confession with the assistance of counsel. The accused
denies this and claims that the confession was given after being beaten up for a week. He denies knowing the
counsel, and he stated that said counsel was not of his own choice. The counsel was a PC captain and station
commander
Held: Confession is inadmissible. The reading of Miranda rights is inadequate to transmit information to the suspect.
Counsel must be independent and competent; his interests must not be adverse to the accused.
People v. Duero
Facts: Duero allegedly confessed to the chief of police regarding his involvement in a case of robbery with homicide.
There were witnesses that testified to his confession.
Held: His confession was inadmissible since it was shown that he was not informed of his rights when he made the
same and that there was no proof to show that he waived his rights.
Cf.
People v. Ordoo
Facts: The accused were appraised of their rights, but due to a lack of lawyers, the custodial investigation was done
in the presence of the parish priest instead. Their confessions were written and signed.
Held: The statement given to the police is inadmissible. Although RA 3748 provides that during the taking of an
extrajudicial confession, the accuseds parents, sibling, spouse, the mayor, municipal judge, priest or minister may be
present, it does not propose that they appear as substitute for counsel. A valid waiver must be done in the presence
of counsel before his right to counsel may be validly waived.
Constitution (1987) ART III, sec 12
Section 12. (1) Any person under investigation for the commission of an offense shall have the right to be informed of
his right to remain silent and to have competent and independent counsel preferably of his own choice. If the person
cannot afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing
and in the presence of counsel.
(2) No torture, force, violence, threat, intimidation, or any other means which vitiate the free will shall be used against
him. Secret detention places, solitary, incommunicado, or other similar forms of detention are prohibited.
(3) Any confession or admission obtained in violation of this or Section 17 hereof shall be inadmissible in evidence
against him.
(4) The law shall provide for penal and civil sanctions for violations of this section as well as compensation to and
rehabilitation of victims of torture or similar practices, and their families.
RA 7438, sec 2 (b) (c) (d)
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.

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(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 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.

B. Rights Involved and consequences of violation


1. Rights involved

The rights involved are those stated under RA 7438 sec 2. The rights unique to Custodial Investigation are
RA 7438 sec 2 c, d and f.
If the suspects rights are violated, aside from the suspect, any one of the persons mentioned under RA 7438
sec 2 f can file a case against the police. This can even be done without the suspects consent.

Constitution 1987 ART III Sec 12 (1) (2) supra


RA 7438 sec 2 a-f supra
People v. Obrero
Facts: supra
Held: There are two kinds of involuntary confessions under ART III sec 12: 1. The product of third degree methods
(force, violence, torture, threat or intimidations) 2. Those given without the benefit of Miranda warnings. This case falls
under the second type of involuntary confession. There was only a perfunctory reading of the rights which was
inadequate to transmit meaningful information.

2. Consequences of Violation
Constitution 1987 ART III Sec 12 (3) supra
RA 7438 sec 4
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.

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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 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.
Harris v. New York
Facts: Harris made a statement to the police after his arrest, which was contradictory to his testimony in court. The
statement was made without Harris being informed of his right to counsel.
Held: Though the statement is inadmissible, the statement can be used to question his credibility. It does not follow
from Miranda that the evidence is inadmissible against an accused in the prosecutions case is barred for all
purposes, provided that the trust worthiness of the evidence satisfies legal standards.
New York v. Quarles
Facts: The police asked Accused where the gun was before Miranda. He pointed and said, the gun is over there.
Held: His statement is admissible. Although the accused was under the custody of the police and the situation came
within the ambit of Miranda, there is a public safety exception to the requirement that Miranda warnings be given
before a suspects answers may be admitted. So long as the gun was concealed, it posed a threat to public safety.
People v. Duero
Facts: The chief of police declared that the accused confessed to the crime but refused to sign a written confession.
Held: The oral confession is inadmissible. The prosecution failed to prove that before the accused made the alleged
oral confession, he was informed of his rights to remain silent and to have counsel. After discarding the oral
confession, the rest of the prosecutions circumstantial evidence is inadequate for conviction.
People v. Figueroa
Facts: The accused was arrested after a buy-bust operation. He argues that he should be acquitted because the
prosecution failed to show that shortly before or during custodial investigation, he was appraised of his constitutional
rights.
Held: Inadmissible. It is always incumbent upon the prosecution to prove at the trial that prior to in-custody
questioning, the accused was informed of his constitutional rights. In the absence of proof that the arresting officers
complied with these constitutional safeguards, extrajudicial statements, whether inculpatory or exculpatory, made
during custodial investigation are inadmissible and cannot be considered in the adjudication of a case.
Gumabon v. Director of Prisons
Facts: The leaders of a rebellion have been released but their followers are still serving life sentences. They
petitioned for a writ of habeas corpus, praying to be immediately released.
Held: The writ should be granted on the basis of equal protection and retroactivity of penal laws. (ed: I think it would
be more proper if this case was under remedies)

C. Specific requirements in case law


1. Waiver of right to Counsel
People v. Caguioa
Facts: Prosecution presented a written statement of the accused and his alleged waiver of his right to remain silent
and to be assisted by a counsel of his own choice.

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Held: It was not shown that the waiver was given freely and voluntarily. The questions were in Filipino and as a native
of Samar, it was difficult for him to understand the questions. His waiver was not done intelligently and voluntarily.
People v. Galit
Facts: The accused assails the admissibility of his extrajudicial confession which was done through torture, force and
intimidation.
Held: His confession is inadmissible because as a native of Samar, it was not shown that he understood Tagalog.
During the investigation, he was not permitted to communicate with his lawyer, a relative or a friend. His statement
does not contain any waiver of a right to counsel.
People v. Continente
Facts: The defense alleged that accused Itaas was tortured and made to sign the sworn statement without the
presence of counsel. Continente was taken without a warrant and was likewise made to sign the statement without
counsel.
Held: Statement is admissible. The waiver of the rights under ART III Sec 12 must comply with the constitutional
requirements that it must be voluntarily made. Both accused were assigned lawyers during the investigation and were
stated their rights. They waived their right to counsel in the presence of a lawyer.
People v. Bacor
Facts: Bacor approached the police and wanted to confess to the killing of Albores. PAO Atty. Anggot was appointed
as his lawyer and executed the confession in the presence of the lawyer.
Held: The right confession is admissible. Records show that he was appraised of his rights thrice before he swore to
the veracity of his confession. He executed the confession in the presence and with the assistance of his counsel.
People v. Quidato Jr.
Facts: The accused signified his intent to confess even in the absence of counsel. The police took down the
testimony but did not require the accuseds signature. Police then took the accused to a PAO lawyer who advised
them of their rights before signing the affidavits.
Held: Confession is inadmissible. The extrajudicial confession must be done in writing and in the presence of
counsel. Having a counsel sign after the confession was taken down does not cure the fact that it was done without a
lawyer.

2. Counsel of choice during custodial investigation


People v. Obrero
Facts: A PC captain, who was also a lawyer, assisted the accused during custodial investigation.
Held: The confession is invalid. The independent counsel cannot be a special prosecutor, private or public
prosecutor, municipal attorney or counsel of the police whose interest is adverse to the accused.
People v. Labtan
Facts: The police alleged that they offered a lawyer to the accused and he accepted. The defense alleged that the
lawyer did not even speak to the accused before signing the sworn statement.
Held: Statement is invalid. An effective counsel is one who can be made to act in protection of the accuseds rights,
and not by merely going through the motions of providing him with anyone who possesses a law degree. It must be
one who is willing to fully safeguard the constitutional rights of the accused, as distinguished from one who would
merely be giving a routine, peremptory and meaningless recital of the individuals constitutional rights.
People v. Samolde
Facts: The accused stated that contrary to his extrajudicial confession, his lawyer di not really assist him. He was not
informed of his constitutional rights when he executed his extrajudicial confession, and he did so only after the police
had subjected him to some brutality.
Held: Confession is inadmissible. Accused was given no more than a perfunctory recitation of his rights, signifying
nothing more than a feigned compliance with the constitutional requirement. An effective lawyer should safeguard the
rights of the accused.
People v. Gallardo
Facts: Accused alleged that they were taken to the police station, where the investigator only allowed them to sign
the typewritten statements after threat of bodily harm.

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Held: While the initial choice of the lawyer in cases where a person under custodial investigation cannot afford the
services of a lawyer is naturally lodged in the police investigators, the accused really ahs the final choice as he may
reject the counsel chosen for him and ask for another one. A lawyer provided by the investigators is deemed engaged
by the accused where he never raised any objection against the formers appointment during the course of the
investigation and the accused thereafter subscribes to the veracity of his statement before the swearing officer. The
presence of the lawyer is not intended to stop an accused from saying anything which might incriminate him but rather
it was adopted to preclude the slightest coercion as would lead the accused to admit something false. The counsel
should never prevent the accused from freely and voluntarily telling the truth.

3. Compliance with Requirement to Inform Person Detained of Rights


What are the obligations of the police during custodial investigation?
1. Miranda Rights
2. Custodial Rights
3. Active obligation of the police to find counsel
Own choice?

Police will find the lawyer. If lawyer refuses, police will inform the accused and will find another one.

The police cannot just sit there and wait for the accused to produce a lawyer

It is the police with the time frame

Normally, police calls the IBP.

Legally, police is obligated to call the person requested.


4. Make a custodial report. MANDATORY. Also signed by the accused and counsel.
5. Confession must be in writing with the presence of counsel. It must also be signed by the accused and the
counsel.
People v. Canoy
Facts: After appraisal of constitutional rights, accused verbally waived their right to counsel. Police officer still fetched
a PAO lawyer who assisted them in signing a sworn statement waiving their rights.
Held: the lawyer did not explain to the accused their rights. He was brought in not to make the confession but merely
to sign the statement. Since the waiver was flawed, the extrajudicial confession is likewise inadmissible in evidence.
People v. Sapal
Facts: Accused was arrested by virtue of a standing warrant of arrest for violation of the Dangerous Drugs Act.
Held: Accused was not fully apprised of his rights under custodial arrest. He was not assisted by counsel when he
was under custodial investigation.
People v. Jara
Facts: Accused contested the admissibility of the extra-judicial confessions on the ground that these were not
obtained freely and voluntarily and with the assistance of counsel.
Held: The waiver of right to counsel was not valid. Whenever a protection given by the Constitution is waived by the
person, the presumption is always against the waiver. Prosecution must prove that the accused willingly and
voluntarily submitted the confession.
People v. Nicandro
Facts: Police allegedly informed the accused of her constitutional rights upon arrest, and that when asked, accused
verbally admitted selling marijuana but refused to put her statement in writing. Accused was illiterate and police did
not state the manner by which the accused was informed of her rights.
Held: Since the right to be informed implies comprehension, the degree of explanation required will vary, depending
upon the education, intelligence, and other relevant personal circumstances of the person under investigation.
People v. Continente
Held: The requirement to inform the person under investigation of his right is more than just the ceremonial and
perfunctory recitation of an abstract constitutional principle, but implies an obligation on the part of the police to
explain, and contemplates an effective communication that results in the understanding of what is conveyed.

i.

Police Line-Up

What makes it valid?


-
Must not have any indication of who your suspect is.

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All persons must fall in the same characteristics. Why? To avoid singling out the suspect. Para namang
tanga kung lahat pulis tapos isa lang ung mukhang bugbog sarado.
Any attempt to guide the witness to point at a particular suspect, INVALID.
If there is no lawyer, the line-up is INVALID. Exception: when the line-up still forms part of the general inquiry
(Gamboa v. Cruz)

-
-

The process of looking at pictures (rouge gallery) does not form part of custodial investigation.
How about blood tests? Urine test?
-
NOT part of custodial investigation.
-
As long as there is no intellectual participation, it is not covered.
-
Defense of accused: integrity of such evidence may be questioned, (eg. Tampered, impure, etc.) but there
will be no violation of custodial rights.
Gamboa v. Cruz
Facts: Petitioner, initially arrested without a warrant for vagrancy, was included in a police line-up, where he was
identified by complainant. After which, the police filed an information for robbery against petitioner.
Held: Not a violation of the right to counsel. Police line-up was not part of the custodial inquest, hence, the right to
counsel had not yet attached.
US v. Wade
Facts: Accused was indicted for robbery. After indictment, he was put in a police line-up where he was identified as
the offender. Accuseds lawyer was not present as he was not informed of the line-up
Held: Since the line-up was conducted after indictment, it already formed part of the prosecution of the case, and not
a mere general investigation. Accused and counsel have been notified of the impending line-up, and counsels
presence should have been a requisite to the conduct of the line-up, absent an intelligent waiver.
People v. Pavillare
Facts: Accused was identified in a police line-up and were charged and convicted for kidnapping.
Held: The rights in Art. III Sec. 12 does not extend to a person in a police line-up because such is not yet part of a
custodial investigation. It involves a general inquiry into an unsolved crime and is purely investigatory. An
uncounseled identification does not preclude the admissibility of an in-court identification.

ii.

Proof of Voluntariness of Confession; Burden on Prosecution

People v. Jara
Held: there is always a strong presumption against a waiver of rights of the accused. The prosecution must prove
with strongly convincing evidence to the satisfaction of the Court that indeed the accused willingly and voluntarily
submitted his confessions and knowingly and deliberately manifested that he was not interested in having a lawyer
assist him during the taking of his confession.
People v. Burgos
Held: The fact that the accused failed to object to the entry into his house does not amount to a permission to make a
search. It cannot be presumed that there was a waiver. To constitute a waiver, it must appear that: (1) the right exists;
(2) the person involved had knowledge of the existence of such right; (3) the person had actual intention to relinquish
the right. None of those are present here.

iii.

Exceptional Cases of Uncounselled Confessions Not Held to be Excluded

People v. Marti applies for Custodial Rights. Such violations cannot be invoked against private persons, only against
the state. Admissions made to a private person need not be in the presence of counsel. Similarly, questions
propounded to the accused on orders of the police are to be construed as actions of the police. Such admissions are
inadmissible.
People v. Andan
Facts: Accused was charged with rape with homicide. The case caught the attention of the nationwide media.
Accused wanted to confess to the mayor but there was no lawyer available, so the mayor ordered the media to
videotape and photograph the confession.

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Held: The admission to the mayor is admissible. The rights of a person under custodial investigation do not apply to
spontaneous statements not elicited through questioning by the authorities and given during ordinary conversation or
media interviews.

People v. Domantay
Facts: Radio reporter of an AM station testified that the accused admitted to the murder during an interview at the
municipal jail.
Held: Confession to the radio reporter is admissible. Accused freely agreed to the interview. There was not showing
that the reporter was acting for the police.
People v. Morada
Facts: Accused allegedly confessed to the police and to the barangay captain that he killed the victim.
Held: Confession to the barangay captain inadmissible. The police engaged the help of the barangay captain to get
the accused to confess. The conversation was thus part of the police investigation. Also, the ruling in Andan does not
authorize the police to obtain confessions they cannot otherwise obtain through media reporters who are acting for
the police.

4. Rights and Remedies


a. Rights of Persons Under Arrest
What happens if Custodial Investigation goes beyond the period?
-
Custodial investigation should not go beyond the given time
-
If there is a need to go beyond it, a waiver must be executed by the accused. in writing and with counsel.
-
They cannot keep the accused beyond this period but without prejudice to further investigation or later
arresting him.
Article III. Section 12. 1987 Constitution.
Any person under investigation for the commission of an offense shall have the right to be informed of his right to
remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot
afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing and in
the presence of counsel.
No torture, force, violence, threat, intimidation, or any other means which vitiate the free will shall be used
against him. Secret detention places, solitary, incommunicado, or other similar forms of detention are prohibited.
Any confession or admission obtained in violation of this or Section 17 hereof shall be inadmissible in
evidence against him.
The law shall provide for penal and civil sanctions for violations of this Section as well as compensation to
the rehabilitation of victims of torture or similar practices, and their families.
Rule 113, sec. 14. Right of attorney or relative to visit person arrested. Any member of the Philippine Bar shall, at
the request of the person arrested or of another acting in his behalf, have the right to visit and 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 regulations,
a relative of the person arrested can also exercise the same right. (14a)
RA 7438, sec. 2.Rights of Persons Arrested, Detained or Under Custodial Investigation; Duties of Public
Officers. supra
People v. Ramos
Facts: Prosecution says the accused executed a written confession. Defense says, accused was made to sign the
document without the assistance of counsel.
Held: the reading of the rights of the accused falls short of the requirement on the appraisal of constitutional rights.
(Cited heavily by People v. Nicandro)
People v. Nicandro
Held: The right of a person under interrogation to be informed implies a correlative obligation on the part of the
police investigator to explain, and contemplates and effective communication that results in understanding what is
conveyed. Short of this, there is a denial of the right, as it cannot be truly said that the person has been informed of
his rights.

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People v. Decierdo
Facts: Accused supposedly executed a written confession admitting responsibility for the shooting of the victim. The
confession was obtained without counsel.
Held: The fact of absence of counsel alone nullifies the confession. The questioning should have ceased at that point.
Neither was there a valid waiver. The accuseds failure to expressly ask for a lawyer does not constitute a waiver of
the right.

b. Remedies
i. Bail
When? What is the applicability of bail in custodial investigation?
Bail in custodial investigation should be more paramount
Applicable even in custodial investigation. Amount will be determined by the judge.

Article III. Section 14. 1987 Constitution.


No person shall be held to answer for a criminal offense without due process of law.
In all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved, and shall
enjoy the right to be heard by himself and counsel, to be informed of the nature and cause of the accusation against
him, to have a speedy, impartial, and public trial, to meet the witnesses face to face, and to have compulsory process
to secure the attendance of witnesses and the production of evidence in his behalf. However, after arraignment, trial
may proceed notwithstanding the absence of the accused: Provided, that he has been duly notified and his failure to
appear is unjustifiable.
Rules on Juveniles in Conflict with the Law
Section 15. Guidelines for Fingerprinting and Photographing of the Child. - The following guidelines shall be
observed when fingerprinting or photographing the child:
(a) The child's fingerprint and photograph files shall be kept separate from those of adults and shall be kept
confidential. They may be inspected by law enforcement officers only when necessary for the effective
discharge of their duties and upon prior authority of the court; and
(b) The fingerprint and photograph shall be removed from the files and destroyed: (1) if the case against the
child is not filed, or is dismissed; or (2) when the child reaches twenty-one (21) years of age and there is no
record that the child committed an offense after reaching eighteen (18) years of age.
Section 16. Intake Report by the Social Welfare Officer. - Upon the taking into custody of a child in conflict with the
law, the social welfare officer assigned to the child shall immediately undertake a preliminary background
investigation of the child and, should a case be filed in court, submit to the court the corresponding intake report prior
to the arraignment.
Section 17. Filing of Criminal Action. - A criminal action may be instituted against a child in conflict with the law by
filing a complaint with the prosecutor.
All criminal actions commenced by complaint or information shall be prosecuted under the direction and control of the
public prosecutor assigned to the court.
Petitions for confinement of a child drug dependent shall be filed under Section 21 of the Rule on Children Charged
under Republic Act No. 9165. (n)
Rule 114. Section 26. Bail not a bar to objections on illegal arrest, lack of or irregular preliminary investigation. An
application for or admission to bail shall not bar the accused from challenging the validity of his arrest or the legality of
the warrant issued therefor, or from assailing the regularity or questioning the absence of a preliminary investigation
of the charge against him, provided that he raises them before entering his plea. The court shall resolve the matter as
early as practicable but not later than the start of the trial of the case. (n)
Panada v. Veneracion
Facts: Respondent ordered petitioners arrest for failure to attend the hearing. Respondent did not recommend bail.
Held: Violation of the right to bail. Failure to attend the hearing was not unjustifiable. Estafa (crime charged against
accused) was a bailable offense.

ii.

Habeas Corpus

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Who issues? Sec. 2 Rule 102
How is it issued? Upon a petition filed with the court
To bring the body to the court and explain to the court the reason for his detention
Family members file the petition. 99% of the time, the petition is granted.
Jonas Burgos writ of amparo, it expands the obligation of the State puts the state in a pro-active role. It
requires that the agency help the family locate the body within 72 hours. If body cannot be found, it must point to
another agency.

Ilagan v. Enrile
Facts: Petitioner and other IBP lawyers were arrested by the PC by virtue of a Mission Order. IBP filed a petition for
habeas corpus on the ground of illegal arrest, since arrests cannot be made on the bases of mission orders.
Informations were later filed charging petitioners with rebellion.
Held: The function of the special proceeding of habeas corpus is to inquire into the legality of ones detention. If the
question was grounded on improper arrest, or that no preliminary investigation has been conducted, the remedy was
not a petition for a writ of habeas corpus but a motion to quash the warrant of arrest and/or the information filed before
the court.
Velasco v. CA
Facts: Accused was arrested with warrant for violations of BP 22 before a complaint for rape was filed against him.
Accused posted bail but NBI refused to releases him because of the complaint for rape.
Held: Accused should not be released. Even if the arrest was illegal, supervening events may bar his release from
custody. What is important is the legality of the detention as of the filing of the application for a writ of habeas corpus.
Moncupa v. Enrile
Facts: Moncupa was arrested for subversion, but it was later found out that he was not a member of any subversive
group. He was temporarily released. He argued that the restrictions on his release constituted involuntary and illegal
restraint on his freedom.
Held: Writ of habeas corpus deals not only with physical restraint. A release that renders a petition for the writ moot
and academic must be one which is free from involuntary restraints. Freedom may be lost due to external moral
compulsion, to founded or groundless fear, to erroneous belief in the existence of the will.
Enrile v. Perez
Facts: Enrile was arrested two days after he delivered allegedly seditious speeches. He filed a petition for writ of
habeas corpus. Court noted down the sworn statements of the arresting officers.
Held: Arrest cannot be justified under Rule 113 Sec. 5 (a) or (b). There must be overt acts constitutive of rebellion
taking place in the presence of the arresting officer, or the officer must have probable cause based on personal
knowledge of the facts and circumstances.
Cf. Effects of plea on objections to legality of arrest
People v. Alojado
Facts: Accused was arrested for rape. On appeal, he claimed that he was illegally arrested.
Held: An objection to the illegality of an arrest must be submitted to the trial court before the accused enter his plea.
Consequently, any defect concerning the arrest of the accused was cured by his voluntary submission to the
jurisdiction of the trial court.
People v. Rondero
Facts: Accused was arrested without a warrant for the crime of rape with homicide. The arrest was based on a spot
investigation where the police found the victims clothes and the victims fathers statement that he saw the accused
washing bloodstained hands at the well.
Held: Any irregularity attending the arrest of an accused is deemed waived when, instead of quashing the information
for lack of jurisdiction over his person, the accused voluntarily submits himself to the court by entering plea of guilty or
not guilty during arraignment and participating in the proceedings.
Cf. Non-curability of illegal nature of arrest
Umil v. Ramos (1990)

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Facts: Consolidated cases. Petitions for habeas corpus were filed after petitioners were arrested for various
continuing offenses (rebellion, inciting to sedition).
Held: If a person is alleged to be restrained of liberty is in the custody of an officer under process issued by a judge,
and that the court has jurisdiction to issue the process of make the order, or if the person is charged before any court,
the writ of habeas corpus will not be allowed. In petitions for habeas corpus, the court must inquire into every phase
and aspect of the detention, from the moment of taking into custody until the moment the court passes upon the
merits of the peititon.

Umil v. Ramos (1999)


Held: The task of determining guilt or innocence is not properly taken on in a petition for habeas corpus. It is to be
done at trial. What is important is that every arrest without a warrant be tested as to is legality via habeas corpus
proceeding.
Bagcal v. Villaraza
Facts: Petitioner was arrested by virtue of a warrant. Information was filed with the judge so that he would conduct
the preliminary investigation and thereafter issue a warrant of arrest, which he did.
Held: Although the warrant of arrest was irregularly issued, any infirmity attached to it was cured when petitioner
submitted himself to the jurisdiction of the court by applying for bail, submitting a memorandum in support thereof and
filing a motion for reconsideration when his application was denied.

iii.

Motion to Quash Information; Preliminary Investigation / Reinvestigation

What is the objective? To question the validity of the charge filed.


Rule 117 Section 1. Time to move to quash. At any time before entering his plea, the accused may move to quash
the complaint or information. (1)
Rule 117 Section 3. Grounds. The accused may move to quash the complaint or information on any of the
following grounds:
(a) That the facts charged do not constitute an offense;
(b) That the court trying the case has no jurisdiction over the offense charged;
(c) That the court trying the case has no jurisdiction over the person of the accused;
(d) That the officer who filed the information had no authority to do so;
(e) That it does not conform substantially to the prescribed form;
(f) That more than one offense is charged except when a single punishment for various offenses is
prescribed by law;
(g) That the criminal action or liability has been extinguished;
(h) That it contains averments which, if true, would constitute a legal excuse or justification; and
(i) That the accused has been previously convicted or acquitted of the offense charged, or the case against
him was dismissed or otherwise terminated without his express consent. (3a)
Luna v. Plaza
Facts: Petitioner, charged with murder and arrested with warrant, filed a motion for bail. Respondent judge granted
bail, but later revoked. Petitioner filed for habeas corpus.
Held: Warrant of arrest was properly issued. Rule 102 Sec. 4 states that if it appears that the person alleged to be
restrained of his liberty is in the custody of an officer under process issued by court or judge and that the court or
judge has jurisdiction to issue the process or make the order, the writ shall not be allowed. All the conditions in the
rule are present in the case.

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Alimpos v. CA
Facts: Accused contended that the warrant was defective since it was issued without complying with the legal
requirements. He filed for habeas corpus and for damages. However the proceedings were conducted purely as a
habeas corpus case.
Held: Habeas corpus is not a suit between parties. It is an inquisition by the government. It is not designed to obtain
redress against anyone. Furthermore, habeas corpus was not the proper remedy. In a case where a warrant of arrest
is assailed for an alleged improper preliminary investigation, the proper remedy is a motion to quash the warrant of
arrest or a petition for reinvestigation of the case.

iv.

Criminal Liability for Unlawful Arrest

Revised Penal Code


Article 124. Arbitrary detention. - Any public officer or employee who, without legal grounds, detains a person, shall
suffer;
1. The penalty of arresto mayor in its maximum period to prision correccional in its minimum period, if the
detention has not exceeded three days;
2. The penalty of prision correccional in its medium and maximum periods, if the detention has continued
more than three but not more than fifteen days;
3. The penalty of prision mayor, if the detention has continued for more than fifteen days but not more than
six months; and
4. That of reclusion temporal, if the detention shall have exceeded six months.
The commission of a crime, or violent insanity or any other ailment requiring the compulsory confinement of the
patient in a hospital, shall be considered legal grounds for the detention of any person.
Article 125. Delay in the delivery of detained persons to the proper judicial authorities. - The penalties provided in the
next preceding article shall be imposed upon the public officer or employee who shall detain any person for some
legal ground and shall fail to deliver such person to the proper judicial authorities within the period of; twelve (12)
hours, for crimes or offenses punishable by light penalties, or their equivalent; eighteen (18) hours, for crimes or
offenses punishable by correctional penalties, or their equivalent and thirty-six (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. (As amended by E.O. Nos. 59 and 272, Nov. 7, 1986 and July 25, 1987, respectively).
Article 126. Delaying release. - The penalties provided for in Article 124 shall be imposed upon any public officer or
employee who delays for the period of time specified therein the performance of any judicial or executive order for the
release of a prisoner or detention prisoner, or unduly delays the service of the notice of such order to said prisoner or
the proceedings upon any petition for the liberation of such person.

v.

Suppression of Evidence Obtained

How does it apply? To suppress evidence obtained during the Custodial Investigation
The extrajudicial confession
1987 Constitution
Sec. 3 (2) Any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in
any proceeding.
Sec. 12 (3) & (4) Any confession or admission obtained in violation of this or Section 17 hereof shall be inadmissible
in evidence against him.
The law shall provide for penal and civil sanctions for violations of this Section as well as compensation to
the rehabilitation of victims of torture or similar practices, and their families.
Brown v. Illinois
Facts: Brown was arrested without probable cause and without any warrant upon his arrival at his apartment.
Held: The Miranda warnings did not purge the taint of illegal arrest. If Miranda warnings, by themselves, were held to
reduce the taint of an unconstitutional arrest, regardless of how wanton and purposeful the Fourth Amendment
violation, the effect of the exclusionary rule would be substantially diluted.

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Sayo v. Chief of Police
Facts: Petitioners allege that they were being illegally detained on the ground that the city fiscal of Manila is not
judicial authority within the provisions of Art. 125, RPC.
Held: City Fiscal is not the judicial authority contemplated in Art. 125. The provision refers to the judge of a court of
justice empowered by law, after a proper investigation, to order the temporary detention of the person arrested. The
judicial authority to whom the person arrested must be surrendered cannot be any other but the court or judge who
alone is authorized to issue a warrant of commitment or provisional detention pending the trial of the case against the
person arrested.
Cf. Rule 126 sec. 14
Rule 126 Section 14. Motion to quash a search warrant or to suppress evidence; where to file. A motion to quash
a search warrant and/or to suppress evidence obtained thereby may be filed in and acted upon only by the court
where the action has been instituted. If no criminal action has been instituted, the motion may be filed in and resolved
by the court that issued the search warrant. However, if such court failed to resolve the motion and a criminal case is
subsequent filed in another court, the motion shall be resolved by the latter court. (n)

Possible Exam Questions:


1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.

Application for warrant of arrest


Validity/lifetime of a warrant of arrest
Duty of the arresting officer
What are the Miranda rights?
Defenses against an arrest without a warrant
Rights of an accused under custodial investigation
Who can visit the person arrested
Extrajudicial confession
Parliamentary Immunity and exceptions
Valid arrests without warrant
What should an officer/private person do when making an arrest?

Part Four
Preliminary Investigation and Inquest
(directly copied from the C2015 reviewer)
I. Definition, nature and purpose
A. Nature and views
Purpose of preliminary investigation (Pamaran, citing Arula v. Espino)
1. To inquire concerning the commission of a crime and the connection of the accused with it, in order that he
may be informed of the nature and character of the crime charged against him, and, if, there is probable
cause for believing him guilty, that the State may take the necessary steps to bring him to trial
2. To preserve the evidence and keep witnesses within the control of the State
3. To determine the amount of bail, if the offense is bailable, by investigating or inquiring into facts concerning
the commission of a crime with the end in view of determining whether an information may be prepared
against the accused
Note: The purpose of preliminary investigation is also found in the DOJ-NPS Manual, Part III, Sec. 2 (infra, page 5).
Nature of preliminary investigation

Merely inquisitorial, not a trial of the case on the merits (Tandoc v. Resultan, PCGG v. Desierto)

Has no purpose except that of determining whether a crime has been committed and whether there is
probable cause to believe that the accused is probably guilty thereof (Tandoc v. Resultan, Baytan v.
COMELEC)

Double jeopardy does not attach at the level of preliminary investigation.

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PCGG v. Desierto
Facts: Disini allegedly participated in the creation of anomalies in the Philippine Nuclear Power Plant Project. PCGG
filed a complaint with the Ombudsman. The Ombudsman dismissed the complaint on the ground of lack of sufficient
evidence at the preliminary investigation stage.
Held: The prosecution has sufficient evidence. A preliminary investigation is essentially inquisitorial. It is not the
occasion for the full and exhaustive display of both parties evidence but for the presentation of only such evidence as
may engender a well-grounded belief that an offense has been committed and that the accused is probably guilty
thereof.
Baytan v. COMELEC
Facts: Petitioners originally registered for elections in the wrong precinct. They registered in the correct one and
wrote COMELEC about it. COMELEC passed a resolution directing the filing of an information against them for double
registration. Petitioners contest this on the grounds of honest mistake and good faith.
Held: SC dismissed the petition because the resolution was still at the preliminary investigation stage, where the only
issue is if there is probable cause to believe that they committed the crime, not if they actually committed it.
DOJ-NPS Manual, Part III. Preliminary Investigation.
Sec. 1. Concept of preliminary investigation. A preliminary investigation is an inquiry or proceeding to determine
whether there is sufficient ground to engender a well founded belief that a crime cognizable by the Regional Trial
Court has been committed and that the respondent is probably guilty thereof and should be held for trial.
A preliminary investigation is essentially a judicial inquiry since there is the opportunity to be heard, the
production and weighing of evidence, and a decision rendered on the basis of such evidence. In this sense, the
investigating prosecutor is a quasi-judicial officer.
Sec. 2. Purpose of preliminary investigation. A preliminary investigation is intended:
a) to secure the innocent against hasty, malicious and oppressive prosecution and to protect him from an open
and public accusation of a crime and from the trouble, expense and anxiety of a public trial; and
b) to protect the State from having to conduct useless and expensive trials.
Sec. 3. Nature of preliminary investigation. The conduct of a preliminary investigation is a substantive right which
the accused may invoke prior to or at least at the time of plea, the deprivation of which would be a denial of his right to
due process.
DOJ-NPS Manual, Part II. Inquest.
Sec. 1. Concept. Inquest is an informal and summary investigation conducted by a public prosecutor in criminal
cases involving persons arrested and detained without the benefit of a warrant of arrest issued by the court for the
purpose of determining whether or not said persons should remain under custody and correspondingly be charged in
court.

OC says:
What is probable cause in a preliminary investigation?
o Rule 112, Sec. 1: That there is sufficient ground to engender a well-founded belief that a
crime has been committed and the respondent is probably guilty thereof
o Distinguish this from other concepts of probable cause. (Refer to Table 1 in midterms
reviewer appendix)
Certain cases usually always overcome probable cause, meaning the information is always filed.
Among them are: child abuse, illegal recruitment, rape, medical malpractice, and criminal
negligence.

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B. Definition; when required
Rule 112, Sec. 1. Preliminary investigation defined; when required. Preliminary investigation is an inquiry or
proceeding to determine whether there is sufficient ground to engender a well-founded belief that a crime has been
committed and the respondent is probably guilty thereof, and should be held for trial.
Except as provided in section 7 of this Rule, a preliminary investigation is required to be conducted before the
filing of a complaint or information for an offense where the penalty prescribed by law is at least four (4) years, two (2)
months and one (1) day without regard to the fine.
DOJ-NPS Manual, Part III, Sec. 1-3. supra
DOJ-NPS Manual, Part III. Sec. 7. Commencement of Preliminary Investigation. A preliminary investigation
proceeding is commenced:
a) by the filing of a complaint by the offended party or any competent person directly with the Office of the
Investigating Prosecutor or Judge;
b) by referral from or upon request of the law enforcement agency that investigated a criminal incident;
c) upon request of a person arrested or detained pursuant to a warrantless arrest who executes a waiver of the
provisions of Article 125 of the Revised Penal Code, as amended;
d) by order or upon directive of the court or other competent authority; or
e) for election offenses, upon the initiative of the Commission on Elections, or upon written complaint by any
citizen, candidate, registered political party, coalition of registered parties or organizations under the party-list system
or any accredited citizen arm of the Commission on Elections.
RJCL, Sec. 13. Preliminary Investigation. As far as consistent with this Rule, the preliminary investigation of a
juvenile in conflict with the law shall be governed by Section 3 of Rule 112 of the Revised Rules of Criminal
Procedure. If clarificatory questions become necessary, the Rule on Examination of a Child Witness shall apply.
If a preliminary investigation is required before the filing of a complaint or information, the same shall be
conducted by the judge of the Municipal Trial Court or the public prosecutor in accordance with the pertinent
provisions of Rule 112 of the Revised Rules of Criminal Procedure.
If the investigating prosecutor finds probable cause to hold the juvenile for trial, he shall prepare the
corresponding resolution and information for approval by the provincial or city prosecutor, as the case may be. The
juvenile, his parents/nearest relative/guardian and his counsel shall be furnished forthwith a copy of the approved
resolution.
RJCL, Sec. 8. Conduct of Initial Investigation by the Police. The police officer conducting the initial investigation of a
juvenile in conflict with the law shall do so in the presence of either of the parents of the juvenile; in the absence of
both parents, the guardian or the nearest relative, or a social welfare officer, and the counsel of his own choice. In
their presence, the juvenile shall be informed of his constitutional rights during custodial investigation.
The right of the juvenile to privacy shall be protected at all times. All measures necessary to promote this right
shall be taken, including the exclusion of the media.
OC says:

When can a preliminary investigation be done before the filing of a complaint?


o Purpose of a preliminary investigation is to settle things and ensure that only certain cases continue
to trial
o Some cases, even if they can continue without a preliminary investigation still undergo one so that if
things can be settled at the lower level, they may be settled there (i.e. BP 22 cases)

Cases within the jurisdiction of the RTC: mandatory to have preliminary investigation

Cases within the jurisdiction of the MTC/MCTC/MeTC: not mandatory to have a preliminary investigation but
also not prohibited (certain cases now within the jurisdiction of the MTC/MCTC/MeTC require preliminary
investigation, when penalty is above 4 years, 2 months, and 1 day but below 6 years and 1 day)
Hashim v. Boncan
Facts: Hashim was caught red-handed in possession of 560 counterfeit P50 treasury certificates. Complaint was filed
with Office of the City Fiscal, who conducted an investigation and filed an information accusing him of violating Art.

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168, RPC. On the strength of the Fiscals sworn statement that he had conducted the preliminary investigation and
examined the witnesses under oath, the CFI Judge issued a warrant for Hashims arrest.
Held: In a preliminary investigation conducted by the City Fiscal, the accused is not entitled to be informed of the
substance of the testimony and of the evidence presented against him. The New Rules of Court did not repeal and
supplant existing legislation under which the Fiscal conducts preliminary investigations.
Tandoc v. Resultan
Facts: The Office of the City Fiscal recommended the dropping of the charges filed against the petitioners on the
ground that they were a countercharge. Respondents MR was denied, so they filed the informations with the City
Court. After a preliminary examination, the court found reasonable ground to believe that the offenses had been
committed by the petitioners.
Held: A preliminary investigation protects the accused from the inconvenience and burden of defending himself in a
formal trial unless the reasonable probability of his guilt shall have been first ascertained in a fairly summary
proceeding by a competent officer. It also protects the State from having to conduct useless and expensive trials.
Doromal v. Sandiganbayan
Facts: A special prosecutor filed a case against a member of the PCGG. The accused questioned the jurisdiction of
the Tanodbayan to file the information without the approval of the Ombudsman. Information was annulled by the SC,
then refilled by the special prosecutor after asking for the permission of the Ombudsman. Accused argued lack of
preliminary investigation on the new information.
Held: In this jurisdiction, the preliminary investigation in criminal cases is not a creation of the Constitution; its origin is
statutory and the right thereto can be invoked when so established and granted by law. Since the new information
files a new charge against the accused, he must have a new preliminary investigation.
Cojuangco v. Sandiganbayan
Facts: Cojuangco and the coco levy funds. Sol Gen filed a complaint with PCGG regarding Cojuangcos alleged
violation of The Anti-Graft and Corruption Law. The PCGG also filed an information against Cojuangco before the
Sandiganbayan which questioned the capacity of the PCGG to conduct the PI in relation to the complaint filed by the
Sol Gen.
Held: Although the PCGG can conduct PI, such would deprive Cojuangco of his right to due process because even
before the PI started, PCGG already prejudged him when it filed the information with the Sandiganbayan. Informations
must have probable cause before they can be filed, hence PCGG already found probable cause to believe that
Cojuangco is guilty of the offense. They would no longer be conducting PI impartially.
Webb v. De Leon
Facts: Vizconde massacre/rape case. DOJ panel of prosecutors conducted PI, found probable cause, and filed with
the RTC. RTC issued warrants of arrest hours after the filing of the complaint which was submitted with incomplete
records insufficient to find probable cause.
Held: No probable cause found during PI. A finding of probable cause needs only to rest on evidence showing that
more likely than not a crime has been committed and was committed by the suspects. Probable cause need not be
based on clear and convincing evidence of guilt, neither on evidence establishing guilt beyond reasonable doubt and
definitely, not on evidence establishing absolute certainty of guilt.

C. Persons authorized to conduct


Rule 112, Sec. 2. Officers authorized to conduct preliminary investigations. The following may conduct preliminary
investigations:
(a) Provincial or City Prosecutors and their assistants;
(b) Judges of the Municipal Trial Courts and Municipal Circuit Trial Courts;
(c) National and Regional State Prosecutors; and
(d) Other officers as may be authorized by law.
Their authority to conduct preliminary investigations shall include all crimes cognizable by the proper court in their
respective territorial jurisdictions.
DOJ-NPS Manual, Part III, Sec. 6. (exactly the same as Rule 112, Sec. 2, supra)

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Who are authorized to make a preliminary investigation? (Rule 112, Sec. 2)

City or Provincial Prosecutor

National or Regional State Prosecutor

Other officers as may be authorized by law (Pamaran)


o Graft Investigator Officers and Special Prosecution Officers of the Office of the Ombudsman, or any
lawyer in the government service designated by the Ombudsman as special investigator or
prosecutor

For offenses committed by government officials with salary grade of at least 27 (pursuant
to RA 6770 and Adm. Order No. 7 of the Ombudsman)
o COMELEC, through its duly authorized legal officers

For election-related offenses punishable under the Election Code


o Presidential Commission on Good Government (PCGG)

For cases involving ill-gotten wealth of former president Marcos


OC says:

What is the difference between provincial and city prosecutors?


o A city is independent, not part of a province and vice-versa. City prosecutors have jurisdiction over
the crimes committed within their city; provincial prosecutors over those committed within their
province. (e.g., Legazpi City, Albay the city prosecutor has jurisdiction; other parts of Albay the
provincial prosecutor has jurisdiction)

State prosecutors have national jurisdiction over crimes which may have happened in multiple jurisdictions.
o Syndicates: usually investigated by the DOJ, so that itll be with the State Prosecutor who has
nationwide jurisdiction
Velasco v. Casaclang
Facts: Auditors filed a complaint regarding anomalies in an AFP transaction. Deputy Ombudsman charged AFP
officers after asking them to file their replies, answering their motion for bill of particulars and denying their motion to
quash. AFP officers contend that the Deputy Ombudsman does not have the authority to conduct preliminary
investigations and to prosecute cases falling within the jurisdiction of the Sandiganbayan.
Held: Deputy Ombudsman has the power and authority to conduct preliminary investigation and prosecute cases
cognizable by the Sandiganbayan. The Ombudsman and his Deputies are, within legal contemplation, other officers
authorized by law to conduct preliminary investigation as provided in Rule 112, Sec. 2.
Balgos v. Sandiganbayan
Facts: Special Prosecutor charged Balgos for violation of Anti-Graft and Corrupt Practices Act. Reinvestigation by
Tanodbayan ordered that the case be withdrawn. Sandiganbayan denied motion to withdraw and motion to suspend
proceedings for prejudicial question.
Held: Tanodbayan has power to conduct PI. But once the case is in the Sandiganbayan, doctrine of Crespo v. Mogul
applies.

D. Scope
Paderanga v. Drilon
Facts: Roxas, accused in a case for multiple murder, implicated his own counsel, Paderanga. The State Prosecutor
directed to implead Paderanga as one of the accused. Paderanga moved for reconsideration, contending that the
preliminary investigation was not yet completed, he was deprived of his right to present a corresponding counteraffidavit and additional evidence crucial to the determination of his alleged linkage to the crime charged.
Held: Preliminary investigation is generally inquisitorial, and it is often the only means of discovering the persons who
may be reasonably charged with a crime, to enable the fiscal to prepare his complaint or information. The institution of
a criminal action depends upon the sound discretion of the fiscal. He has the quasi-judicial discretion to determine
whether or not a criminal case should be filed in court.

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II. Procedure in cases where preliminary investigation required
A. In cases cognizable by RTC
1. Conducted by prosecutor
Rule 112, Sec. 3. Procedure. The preliminary investigation shall be conducted in the following manner:
(a) The complaint shall state the address of the respondent and shall be accompanied by the affidavits of the
complainant and his witnesses, as well as other supporting documents to establish probable cause. They shall be in
such number of copies as there are respondents, plus two (2) copies for the official file. The affidavits shall be
subscribed and sworn to before any prosecutor or government official authorized to administer oath, or, in their
absence or unavailability, before a notary public, each of whom must certify that he personally examined the affiants
and that he is satisfied that they voluntarily executed and understood their affidavits.
(b) Within ten (10) days after the filing of the complaint, the investigating officer shall either dismiss it if he finds
no ground to continue with the investigation, or issue a subpoena to the respondent attaching to it a copy of the
complaint and its supporting affidavits and documents.
The respondent shall have the right to examine the evidence submitted by the complainant which he may not
have been furnished and to copy them at his expense. If the evidence is voluminous, the complainant may be
required to specify those which he intends to present against the respondent, and these shall be made available for
examination or copying by the respondent at his expense.
Objects as evidence need not be furnished a party but shall be made available for examination, copying, or
photographing at the expense of the requesting party.
(c) Within ten (10) days from receipt of the subpoena with the complaint and supporting affidavits and documents,
the respondent shall submit his counter-affidavit and that of his witnesses and other supporting documents relied
upon for his defense. The counter-affidavits shall be subscribed and sworn to and certified as provided in paragraph
(a) of this section, with copies thereof furnished by him to the complainant. The respondent shall not be allowed to file
a motion to dismiss in lieu of a counter-affidavit.
(d) If the respondent cannot be subpoenaed, of if subpoenaed, does not submit counter-affidavits within the ten
(10) day period, the investigating officer shall resolve the complaint based on the evidence presented by the
complainant.
(e) The investigating officer may set a hearing if there are facts and issues to be clarified from a party or a
witness. The parties can be present at the hearing but without the right to examine or cross-examine. They may,
however, submit to the investigating officer questions which may be asked to the party or witness concerned.
The hearing shall be held within ten (10) days from submission of the counter-affidavits and other documents or
from the expiration of the period for their submission. It shall be terminated within five (5) days.
(f) Within ten (10) days after the investigation, the investigating officer shall determine whether or not there is
sufficient ground to hold the respondent for trial.
Rule 112, Sec. 4. Resolution of investigating prosecutor and its review. If the investigating prosecutor finds cause to
hold the respondent for trial, he shall prepare the resolution and information. He shall certify under oath in the
information that he, or as shown by the record, an authorized officer, has personally examined the complainant and
his witnesses; that there is reasonable ground to believe that a crime has been committed and that the accused is
probably guilty thereof; that the accused was informed of the complaint and of the evidence submitted against him;
and that he was given an opportunity to submit controverting evidence. Otherwise, he shall recommend the dismissal
of the complaint.
Within five (5) days from his resolution, he shall forward the record of the case to the provincial or city prosecutor
or chief state prosecutor, or to the Ombudsman or his deputy in cases of offenses cognizable by the Sandiganbayan
in the exercise of its original jurisdiction. They shall act on the resolution within ten (10) days from their receipt thereof
and shall immediately inform the parties of such action.
No complaint or information may be filed or dismissed by an investigating prosecutor without the prior written
authority or approval of the provincial or city prosecutor or chief state prosecutor or the Ombudsman or his deputy.
Where the investigating prosecutor recommends the dismissal of the complaint but his recommendation is
disapproved by the provincial or city prosecutor or chief state prosecutor or the Ombudsman or his deputy on the
ground that a probable cause exists, the latter may, by himself, file the information against the respondent, or direct
another assistant prosecutor or state prosecutor to do so without conducting another preliminary investigation.
If upon petition by a proper party under such rules as the Department of Justice may prescribe or motu proprio,
the Secretary of Justice reverses or modifies the resolution of the provincial or city prosecutor or chief state
prosecutor, he shall direct the prosecutor concerned either to file the corresponding information without conducting
another preliminary investigation, or to dismiss or move for dismissal of the complaint or information with notice to the

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parties. The same rule shall apply in preliminary investigations conducted by the officers of the Office of the
Ombudsman.
Rule 112, Sec. 6. When accused lawfully arrested without warrant. When a person is lawfully arrested without a
warrant involving an offense which requires a preliminary investigation, the complaint or information may be filed by a
prosecutor without need of such investigation provided an inquest has been conducted in accordance with existing
Rules. In the absence or unavailability of an inquest prosecutor, the complaint may be filed by the offended party or a
peace officer directly with the proper court on the basis of the affidavit of the offended party or arresting officer or
person.
Before the complaint or information is filed, the person arrested may ask for a preliminary investigation in
accordance with this Rule, but he must sign a waiver of the provisions of Article 125 of the Revised Penal Code, as
amended, in the presence of his counsel. Notwithstanding the waiver, he may apply for bail and the investigation must
be terminated within fifteen (15) days from its inception.
After the filing of the complaint or information in court without a preliminary investigation, the accused may, within
five (5) days from the time he learns of its filing, ask for a preliminary investigation with the same right to adduce
evidence in his defense as provided in this Rule.
Rule 112, Sec. 8. Cases not requiring a preliminary investigation nor covered by the Rule on Summary Procedure.
(a) If filed with the prosecutor. If the complaint is filed directly with the prosecutor involving an offense
punishable by imprisonment of less than four (4) years, two (2) months and one (1) day, the procedure outlined in
section 3(a) of this Rule shall be observed. The prosecutor shall act on the complaint based on the affidavits and
other supporting documents submitted by the complainant within ten (10) days from its filing.
(b) If filed with the Municipal Trial Court. If the complaint or information is filed with the Municipal Trial Court or
Municipal Circuit Trial Court for an offense covered by this section, the procedure in section 3(a) of this Rule shall be
observed. If within ten (10) days after the filing of the complaint or information, the judge finds no probable cause after
personally evaluating the evidence, or after personally examining in writing and under oath the complainant and his
witnesses in the form of searching questions and answers, he shall dismiss the same. He may, however, require the
submission of additional evidence, within ten (10) days from notice, to determine further the existence of probable
cause. If the judge still finds no probable cause despite the additional evidence, he shall, within ten (10) days from its
submission or expiration of said period, dismiss the case. When he finds probable cause, he shall issue a warrant of
arrest, or a commitment order if the accused had already been arrested, and hold him for trial. However, if the judge is
satisfied that there is no necessity for placing the accused under custody, he may issue summons instead of a
warrant of arrest.
RJCL, Sec. 13. supra

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Process of preliminary investigation

OC says:

On periods in Sec. 3: They are merely suggestive. It never happens.

Sometimes, it can be a matter of strategy on the part of the respondent/accused to file or not to file a
counter-affidavit.
Rodil v. Garcia
Facts: Rodil was charged with murder. At the PI stage, he petitioned the lower court to recall witnesses for the
prosecution to enable him to cross-examine them on clarificatory and amplificatory matters. He also asked the court
to grant bail, which was denied without according the petitioner a hearing for his application for bail. The judge only
relied on the records from the preliminary investigation.
Held: The procedure to be followed in the hearing on an application for bail, while summary in character, is not to be
a mere sham or pretense. It must not be an exercise in futility. The accused is not to be denied his day in court.
Allado v. Diokno
Facts: Alumni of UP Law are charged by the DOJ with the crime of kidnapping with murder after hearing inconsistent
witness testimonies and only partially granting defendants motions. Judge Diokno immediately sends out arrest
warrants.
Held: Before issuing a warrant of arrest, the judge must satisfy himself that based on the evidence submitted there is
sufficient proof that a crime has been committed and that the person to be arrested is probably guilty thereof. Whether
it is a preliminary investigation by the prosecutor, which ascertains if the respondent should be held for trial, or a
preliminary inquiry by the trial judge which determines if an arrest warrant should issue, the bottom line is that there is
a standard in the determination of the existence of probable cause, i.e., there should be facts and circumstances
sufficiently strong in themselves to warrant a prudent and cautious man to believe that the accused is guilty of the
crime with which he is charged.

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2. Conducted by MTC judge
Rule 112, Sec. 3. supra
Rule 112, Sec. 5. When warrant of arrest may issue.
(a) By the Regional Trial Court. Within ten (10) days from the filing of the complaint or information, the judge
shall personally evaluate the resolution of the prosecutor and its supporting evidence. He may immediately dismiss
the case if the evidence on record clearly fails to establish probable cause. If he finds probable cause, he shall issue a
warrant of arrest, or a commitment order if the accused has been arrested pursuant to a warrant issued by the judge
who conducted the preliminary investigation or when the complaint or information was filed pursuant to section 6 of
this Rule. In case of doubt on the existence of probable cause, the judge may order the prosecutor to present
additional evidence within five (5) days from notice and the issue must be resolved by the court within thirty (30) days
from the filing of the complaint or information.
(b) By the Municipal Trial Court. When required pursuant to the second paragraph of section 1 of this Rule, the
preliminary investigation of cases falling under the original jurisdiction of the Metropolitan Trial Court, Municipal Trial
Court in Cities, Municipal Trial Court, or Municipal Circuit Trial Court shall be conducted by the prosecutor. The
procedure for the issuance of a warrant of arrest by the judge shall be governed by paragraph (a) of this section.
(c) When warrant of arrest not necessary. A warrant of arrest shall not issue if the accused is already under
detention pursuant to a warrant issued by the Municipal Trial Court in accordance with paragraph (b) of this section,
or if the complaint or information was filed pursuant to section 6 of this Rule or is for an offense penalized by fine only.
The court shall then proceed in the exercise of its original jurisdiction.
Rule 112, Sec. 6 and 8. supra,
RJCL, Sec. 13. supra

B. In cases cognizable by MTC


1. Conducted by prosecutor
Rule 112, Sec. 1, par. 2. supra
Rule 112, Sec. 3, 4, 6 and 8. supra
RJCL, Sec. 13. supra

C. In cases cognizable by Sandiganbayan


1. Conducted by prosecutor or MTC judge
Rule 112, Sec. 3-5, and 8. supra

2. Conducted by Ombudsman/Special Prosecutor


RA 6770. The Ombudsman Act of 1989.
Sec. 1. Title. This Act shall be known as "The Ombudsman Act of 1989".
Sec. 2. Declaration of Policy. The State shall maintain honesty and integrity in the public service and take positive
and effective measures against graft and corruption.
Public office is a public trust. Public officers and employees must at all times be accountable to the people, serve
them with utmost responsibility, integrity, loyalty, efficiency, act with patriotism and justice and lead modest lives.
Sec. 3. Office of the Ombudsman. The Office of the Ombudsman shall include the Office of the Overall Deputy, the
Office of the Deputy for Luzon, the Office of the Deputy for the Visayas, the Office of the Deputy for Mindanao, the

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Office of the Deputy for the Armed Forces, and the Office of the Special Prosecutor. The President may appoint other
Deputies as the necessity for it may arise, as recommended by the Ombudsman.
Sec. 4. Appointment. The Ombudsman and his Deputies, including the Special Prosecutor, shall be appointed by
the President from a list of at least twenty-one (21) nominees prepared by the Judicial and Bar Council, and from a list
of three (3) nominees for each vacancy thereafter, which shall be filled within three (3) months after it occurs, each of
which list shall be published in a newspaper of general circulation.
In the organization of the Office of the Ombudsman for filling up of positions therein, regional, cultural or ethnic
considerations shall be taken into account to the end that the Office shall be as much as possible representative of
the regional, ethnic and cultural make-up of the Filipino nation.
Sec. 5. Qualifications. The Ombudsman and his Deputies, including the Special Prosecutor, shall be natural-born
citizens of the Philippines, at least forty (40) years old, of recognized probity and independence, members of the
Philippine Bar, and must not have been candidates for any elective national or local office in the immediately
preceding election whether regular or special. The Ombudsman must have, for ten (10) years or more, been a judge
or engaged in the practice of law in the Philippines.
Sec. 6. Rank and Salary. The Ombudsman and his Deputies shall have the same ranks, salaries and privileges as
the Chairman and members, respectively, of a Constitutional Commission. Their salaries shall not be decreased
during their term of office.
The members of the prosecution, investigation and legal staff of the Office of the Ombudsman shall receive
salaries which shall not be less than those given to comparable positions in any office in the Government.
Sec. 7. Term of Office. The Ombudsman and his Deputies, including the Special Prosecutor, shall serve for a term
of seven (7) years without reappointment.
Sec. 8. Removal; Filling of Vacancy.
(1) In accordance with the provisions of Article XI of the Constitution, the Ombudsman may be removed from
office on impeachment for, and conviction of, culpable violation of the Constitution, treason, bribery, graft and
corruption, other high crimes, or betrayal of public trust.
(2) A Deputy or the Special Prosecutor, may be removed from office by the President for any of the grounds
provided for the removal of the Ombudsman, and after due process.
(3) In case of vacancy in the Office of the Ombudsman due to death, resignation, removal or permanent disability
of the incumbent Ombudsman, the Overall Deputy shall serve as Acting Ombudsman in a concurrent capacity until a
new Ombudsman shall have been appointed for a full term. In case the Overall Deputy cannot assume the role of
Acting Ombudsman, the President may designate any of the Deputies, or the Special Prosecutor, as Acting
Ombudsman.
(4) In case of temporary absence or disability of the Ombudsman, the Overall Deputy shall perform the duties of
the Ombudsman until the Ombudsman returns or is able to perform his duties.
Sec. 9. Prohibitions and Disqualifications. The Ombudsman, his Deputies and the Special Prosecutor shall not,
during their tenure, hold any other office or employment. They shall not, during said tenure, directly or indirectly
practice any other profession, participate in any business, or be financially interested in any contract with, or in any
franchise, or special privilege granted by the Government or any subdivision, agency or instrumentality thereof,
including government-owned or controlled corporations or their subsidiaries. They shall strictly avoid conflict of
interest in the conduct of their office. They shall not be qualified to run for any office in the election immediately
following their cessation from office. They shall not be allowed to appear or practice before the Ombudsman for two
(2) years following their cessation from office.
No spouse or relative by consanguinity or affinity within the fourth civil degree and no law, business or
professional partner or associate of the Ombudsman, his Deputies or Special Prosecutor within one (1) year
preceding the appointment may appear as counsel or agent on any matter pending before the Office of the
Ombudsman or transact business directly or indirectly therewith.
This disqualification shall apply during the tenure of the official concerned. This disqualification likewise extends
to the law, business or professional firm for the same period.
Sec. 10. Disclosure of Relationship. It shall be the duty of the Ombudsman, his Deputies, including the Special
Prosecutor to make under oath, to the best of their knowledge and/or information, a public disclosure of the identities
of, and their relationship with the persons referred to in the preceding section.

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The disclosure shall be filed with the Office of the President and the Office of the Ombudsman before the
appointee assumes office and every year thereafter. The disclosures made pursuant to this section shall form part of
the public records and shall be available to any person or entity upon request.
Sec. 11. Structural Organization. The authority and responsibility for the exercise of the mandate of the Office of the
Ombudsman and for the discharge of its powers and functions shall be vested in the Ombudsman, who shall have
supervision and control of the said office.
(1) The Office of the Ombudsman may organize such directorates for administration and allied services as may
be necessary for the effective discharge of its functions. Those appointed as directors or heads shall have the rank
and salary of line bureau directors.
(2) The Office of the Overall Deputy shall oversee and administer the operations of the different offices under the
Office of Ombudsman. It shall likewise perform such other functions and duties assigned to it by the Ombudsman.
(3) The Office of the Special Prosecutor shall be composed of the Special Prosecutor and his prosecution staff.
The Office of the Special Prosecutor shall be an organic component of the Office of the Ombudsman and shall be
under the supervision and control of the Ombudsman.
(4) The Office of the Special Prosecutor shall, under the supervision and control and upon the authority of the
Ombudsman, have the following powers:
(a) To conduct preliminary investigation and prosecute criminal cases within the jurisdiction of the
Sandiganbayan;
(b) To enter into plea bargaining agreements; and
(c) To perform such other duties assigned to it by the Ombudsman.
The Special Prosecutor shall have the rank and salary of a Deputy Ombudsman.
(5) The position structure and staffing pattern of the Office of the Ombudsman, including the Office of the Special
Prosecutor, shall be approved and prescribed by the Ombudsman. The Ombudsman shall appoint all officers and
employees of the Office of the Ombudsman, including those of the Office of the Special Prosecutor, in accordance
with the Civil Service Law, rules and regulations.
Sec. 12. Official Stations. The Ombudsman, the Overall Deputy, the Deputy for Luzon, and the Deputy for the
Armed Forces shall hold office in Metropolitan Manila; the Deputy for the Visayas, in Cebu City; and the Deputy for
Mindanao, in Davao City. The Ombudsman may transfer their stations within their respective geographical regions, as
public interest may require.
Sec. 13. Mandate. The Ombudsman and his Deputies, as protectors of the people, shall act promptly on complaints
filed in any form or manner against officers or employees of the Government, or of any subdivision, agency or
instrumentality thereof, including government-owned or controlled corporations, and enforce their administrative, civil
and criminal liability in every case where the evidence warrants in order to promote efficient service by the
Government to the people.
Sec. 14. Restrictions. No writ of injunction shall be issued by any court to delay an investigation being conducted by
the Ombudsman under this Act, unless there is a prima facie evidence that the subject matter of the investigation is
outside the jurisdiction of the Office of the Ombudsman.
No court shall hear any appeal or application for remedy against the decision or findings of the Ombudsman,
except the Supreme Court, on pure question of law.
Sec. 15. Powers, Functions and Duties. The Office of the Ombudsman shall have the following powers, functions
and duties:
(1) Investigate and prosecute on its own or on complaint by any person, any act or omission of any public officer
or employee, office or agency, when such act or omission appears to be illegal, unjust, improper or inefficient. It has
primary jurisdiction over cases cognizable by the Sandiganbayan and, in the exercise of this primary jurisdiction, it
may take over, at any stage, from any investigatory agency of Government, the investigation of such cases;
(2) Direct, upon complaint or at its own instance, any officer or employee of the Government, or of any
subdivision, agency or instrumentality thereof, as well as any government-owned or controlled corporations with
original charter, to perform and expedite any act or duty required by law, or to stop, prevent, and correct any abuse or
impropriety in the performance of duties;
(3) Direct the officer concerned to take appropriate action against a public officer or employee at fault or who
neglect to perform an act or discharge a duty required by law, and recommend his removal, suspension, demotion,
fine, censure, or prosecution, and ensure compliance therewith; or enforce its disciplinary authority as provided in
Section 21 of this Act: provided, that the refusal by any officer without just cause to comply with an order of the
Ombudsman to remove, suspend, demote, fine, censure, or prosecute an officer or employee who is at fault or who

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neglects to perform an act or discharge a duty required by law shall be a ground for disciplinary action against said
officer;
(4) Direct the officer concerned, in any appropriate case, and subject to such limitations as it may provide in its
rules of procedure, to furnish it with copies of documents relating to contracts or transactions entered into by his office
involving the disbursement or use of public funds or properties, and report any irregularity to the Commission on Audit
for appropriate action;
(5) Request any government agency for assistance and information necessary in the discharge of its
responsibilities, and to examine, if necessary, pertinent records and documents;
(6) Publicize matters covered by its investigation of the matters mentioned in paragraphs (1), (2), (3) and (4)
hereof, when circumstances so warrant and with due prudence: provided, that the Ombudsman under its rules and
regulations may determine what cases may not be made public: provided, further, that any publicity issued by the
Ombudsman shall be balanced, fair and true;
(7) Determine the causes of inefficiency, red tape, mismanagement, fraud, and corruption in the Government,
and make recommendations for their elimination and the observance of high standards of ethics and efficiency;
(8) Administer oaths, issue subpoena and subpoena duces tecum, and take testimony in any investigation or
inquiry, including the power to examine and have access to bank accounts and records;
(9) Punish for contempt in accordance with the Rules of Court and under the same procedure and with the same
penalties provided therein;
(10) Delegate to the Deputies, or its investigators or representatives such authority or duty as shall ensure the
effective exercise or performance of the powers, functions, and duties herein or hereinafter provided;
(11) Investigate and initiate the proper action for the recovery of ill-gotten and/or unexplained wealth amassed
after February 25, 1986 and the prosecution of the parties involved therein.
The Ombudsman shall give priority to complaints filed against high ranking government officials and/or those
occupying supervisory positions, complaints involving grave offenses as well as complaints involving large sums of
money and/or properties.
Sec. 16. Applicability. The provisions of this Act shall apply to all kinds of malfeasance, misfeasance, and nonfeasance that have been committed by any officer or employee as mentioned in Section 13 hereof, during his tenure
of office.
Sec. 17. Immunities. In all hearings, inquiries, and proceedings of the Ombudsman, including preliminary
investigations of offenses, no person subpoenaed to testify as a witness shall be excused from attending and
testifying or from producing books, papers, correspondence, memoranda and/or other records on the ground that the
testimony or evidence, documentary or otherwise, required of him, may tend to incriminate him or subject him to
prosecution: provided, that no person shall be prosecuted criminally for or on account of any matter concerning which
he is compelled, after having claimed the privilege against self-incrimination, to testify and produce evidence,
documentary or otherwise.
Under such terms and conditions as it may determine, taking into account the pertinent provisions of the Rules of
Court, the Ombudsman may grant immunity from criminal prosecution to any person whose testimony or whose
possession and production of documents or other evidence may be necessary to determine the truth in any hearing,
inquiry or proceeding being conducted by the Ombudsman or under its authority, in the performance or in the
furtherance of its constitutional functions and statutory objectives. The immunity granted under this and the
immediately preceding paragraph shall not exempt the witness from criminal prosecution for perjury or false testimony
nor shall he be exempt from demotion or removal from office.
Any refusal to appear or testify pursuant to the foregoing provisions shall be subject to punishment for contempt
and removal of the immunity from criminal prosecution.
Sec. 18. Rules of Procedure.
(1) The Office of the Ombudsman shall promulgate its rules of procedure for the effective exercise or
performance of its powers, functions, and duties.
(2) The rules of procedure shall include a provision whereby the Rules of Court are made suppletory.
(3) The rules shall take effect after fifteen (15) days following the completion of their publication in the Official
Gazette or in three (3) newspapers of general circulation in the Philippines, one of which is printed in the national
language.
Sec. 19. Administrative Complaints. The Ombudsman shall act on all complaints relating, but not limited to acts or
omissions which:
(1) Are contrary to law or regulation;
(2) Are unreasonable, unfair, oppressive or discriminatory;
(3) Are inconsistent with the general course of an agency's functions, though in accordance with law;

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(4) Proceed from a mistake of law or an arbitrary ascertainment of facts;
(5) Are in the exercise of discretionary powers but for an improper purpose; or
(6) Are otherwise irregular, immoral or devoid of justification.
Sec. 20. Exceptions. The Office of the Ombudsman may not conduct the necessary investigation of any
administrative act or omission complained of if it believes that:
(1) The complainant has an adequate remedy in another judicial or quasi-judicial body;
(2) The complaint pertains to a matter outside the jurisdiction of the Office of the Ombudsman;
(3) The complaint is trivial, frivolous, vexatious or made in bad faith;
(4) The complainant has no sufficient personal interest in the subject matter of the grievance; or
(5) The complaint was filed after one (1) year from the occurrence of the act or omission complained of.
Sec. 21. Official Subject to Disciplinary Authority; Exceptions. The Office of the Ombudsman shall have disciplinary
authority over all elective and appointive officials of the Government and its subdivisions, instrumentalities and
agencies, including Members of the Cabinet, local government, government-owned or controlled corporations and
their subsidiaries, except over officials who may be removed only by impeachment or over Members of Congress, and
the Judiciary.
Sec. 22. Investigatory Power. The Office of the Ombudsman shall have the power to investigate any serious
misconduct in office allegedly committed by officials removable by impeachment, for the purpose of filing a verified
complaint for impeachment, if warranted.
In all cases of conspiracy between an officer or employee of the government and a private person, the
Ombudsman and his Deputies shall have jurisdiction to include such private person in the investigation and proceed
against such private person as the evidence may warrant. The officer or employee and the private person shall be
tried jointly and shall be subject to the same penalties and liabilities.
Sec. 23. Formal Investigation.
(1) Administrative investigations conducted by the Office of the Ombudsman shall be in accordance with its rules
of procedure and consistent with due process.
(2) At its option, the Office of the Ombudsman may refer certain complaints to the proper disciplinary authority for
the institution of appropriate administrative proceedings against erring public officers or employees, which shall be
determined within the period prescribed in the civil service law. Any delay without just cause in acting on any referral
made by the Office of the Ombudsman shall be a ground for administrative action against the officers or employees to
whom such referrals are addressed and shall constitute a graft offense punishable by a fine of not exceeding Five
thousand pesos (P5,000.00).
(3) In any investigation under this Act the Ombudsman may: (a) enter and inspect the premises of any office,
agency, commission or tribunal; (b) examine and have access to any book, record, file, document or paper; and (c)
hold private hearings with both the complaining individual and the official concerned.
Sec. 24. Preventive Suspension. The Ombudsman or his Deputy may preventively suspend any officer or employee
under his authority pending an investigation, if in his judgment the evidence of guilt is strong, and (a) the charge
against such officer or employee involves dishonesty, oppression or grave misconduct or neglect in the performance
of duty; (b) the charges would warrant removal from the service; or (c) the respondent's continued stay in office may
prejudice the case filed against him.
The preventive suspension shall continue until the case is terminated by the Office of the Ombudsman but not
more than six (6) months, without pay, except when the delay in the disposition of the case by the Office of the
Ombudsman is due to the fault, negligence or petition of the respondent, in which case the period of such delay shall
not be counted in computing the period of suspension herein provided.
Sec. 25. Penalties.
(1) In administrative proceedings under Presidential Decree No. 807, the penalties and rules provided therein
shall be applied.
(2) In other administrative proceedings, the penalty ranging from suspension without pay for one (1) year to
dismissal with forfeiture of benefits or a fine ranging from Five thousand pesos (P5,000.00) to twice the amount
malversed, illegally taken or lost, or both at the discretion of the Ombudsman, taking into consideration circumstances
that mitigate or aggravate the liability of the officer or employee found guilty of the complaint or charges.
Sec. 26. Inquiries.

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(1) The Office of the Ombudsman shall inquire into acts or omissions of a public officer, employee, office or
agency which, from the reports or complaints it has received, the Ombudsman or his Deputies consider to be:
(a) contrary to law or regulation;
(b) unreasonable, unfair, oppressive, irregular or inconsistent with the general course of the operations and
functions of
a public officer, employee, office or agency;
(c) an error in the application or interpretation of law, rules or regulations, or a gross or palpable error in the
appreciation of facts;
(d) based on improper motives or corrupt considerations;
(e) unclear or inadequately explained when reasons should have been revealed; or
(f) inefficient performed or otherwise objectionable.
(2) The Officer of the Ombudsman shall receive complaints from any source in whatever form concerning an
official act or omission. It shall act on the complaint immediately and if it finds the same entirely baseless, it shall
dismiss the same and inform the complainant of such dismissal citing the reasons therefor. If it finds a reasonable
ground to investigate further, it shall first furnish the respondent public officer or employee with a summary of the
complaint and require him to submit a written answer within seventy-two (72) hours from receipt thereof. If the answer
is found satisfactory, it shall dismiss the case.
(3) When the complaint consists in delay or refusal to perform a duty required by law, or when urgent action is
necessary to protect or preserve the rights of the complainant, the Office of the Ombudsman shall take steps or
measures and issue such orders directing the officer, employee, office or agency concerned to:
(a) expedite the performance of duty;
(b) cease or desist from the performance of a prejudicial act;
(c) correct the omission;
(d) explain fully the administrative act in question; or
(e) take any other steps as may be necessary under the circumstances to protect and preserve the rights of
the
complainant.
(4) Any delay or refusal to comply with the referral or directive of the Ombudsman or any of his Deputies, shall
constitute a ground for administrative disciplinary action against the officer or employee to whom it was addressed.
Sec. 27. Effectivity and Finality of Decisions. (1) All provisionary orders of the Office of the Ombudsman are
immediately effective and executory.
A motion for reconsideration of any order, directive or decision of the Office of the Ombudsman must be filed
within five (5) days after receipt of written notice and shall be entertained only on any of the following grounds:
(1) New evidence has been discovered which materially affects the order, directive or decision;
(2) Errors of law or irregularities have been committed prejudicial to the interest of the movant. The motion for
reconsideration shall be resolved within three (3) days from filing: provided, that only one motion for reconsideration
shall be entertained.
Findings of fact by the Officer of the Ombudsman when supported by substantial evidence are conclusive. Any
order, directive or decision imposing the penalty of public censure or reprimand, suspension of not more than one (1)
month's salary shall be final and unappealable.
In all administrative disciplinary cases, orders, directives, or decisions of the Office of the Ombudsman may be
appealed to the Supreme Court by filing a petition for certiorari within ten (10) days from receipt of the written notice of
the order, directive or decision or denial of the motion for reconsideration in accordance with Rule 45 of the Rules of
Court.
The above rules may be amended or modified by the Office of the Ombudsman as the interest of justice may
require.
Sec. 28. Investigation in Municipalities, Cities and Provinces. The Office of the Ombudsman may establish offices in
municipalities, cities and provinces outside Metropolitan Manila, under the immediate supervision of the Deputies for
Luzon, Visayas and Mindanao, where necessary as determined by the Ombudsman. The investigation of complaints
may be assigned to the regional or sectoral deputy concerned or to a special investigator who shall proceed in
accordance with the rules or special instructions or directives of the Office of the Ombudsman. Pending investigation
the deputy or investigator may issue orders and provisional remedies which are immediately executory subject to
review by the Ombudsman. Within three (3) days after concluding the investigation, the deputy or investigator shall
transmit, together with the entire records of the case, his report and conclusions to the Office of the Ombudsman.
Within five (5) days after receipt of said report, the Ombudsman shall render the appropriate order, directive or
decision.

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Sec. 29. Change of Unjust Laws. If the Ombudsman believes that a law or regulation is unfair or unjust, he shall
recommend to the President and to Congress the necessary changes therein or the repeal thereof.
Sec. 30. Transmittal/Publication of Decision. In every case where the Ombudsman has reached a decision,
conclusion or recommendation adverse to a public official or agency, he shall transmit his decision, conclusion,
recommendation or suggestion to the head of the department, agency or instrumentality, or of the province, city or
municipality concerned for such immediate action as may be necessary. When transmitting his adverse decision,
conclusion or recommendation, he shall, unless excused by the agency or official affected, include the substance of
any statement the public agency or official may have made to him by way of explaining past difficulties with or present
rejection of the Ombudsman's proposals.
Sec. 31. Designation of Investigators and Prosecutors. The Ombudsman may utilize the personnel of his office
and/or designate or deputize any fiscal, state prosecutor or lawyer in the government service to act as special
investigator or prosecutor to assist in the investigation and prosecution of certain cases. Those designated or
deputized to assist him herein provided shall be under his supervision and control.
The Ombudsman and his investigators and prosecutors, whether regular members of his staff or designated by
him as herein provided, shall have authority to administer oaths, to issue subpoena and subpoena duces tecum, to
summon and compel witnesses to appear and testify under oath before them and/or bring books, documents and
other things under their control, and to secure the attendance or presence of any absent or recalcitrant witness
through application before the Sandiganbayan or before any inferior or superior court having jurisdiction of the place
where the witness or evidence is found.
Sec. 32. Rights and Duties of Witness.
(1) A person required by the Ombudsman to provide the information shall be paid the same fees and travel
allowances as are extended to witnesses whose attendance has been required in the trial courts. Upon request of the
witness, the Ombudsman shall also furnish him such security for his person and his family as may be warranted by
the circumstances.
For this purpose, the Ombudsman may, at its expense, call upon any police or constabulary unit to provide the
said security.
(2) A person who, with or without service or compulsory process, provides oral or documentary information
requested by the Ombudsman shall be accorded the same privileges and immunities as are extended to witnesses in
the courts, and shall likewise be entitled to the assistance of counsel while being questioned.
(3) If a person refuses to respond to the Ombudsman's or his Deputy's subpoena, or refuses to be examined, or
engages in obstructive conduct, the Ombudsman or his Deputy shall issue an order directing the person to appear
before him to show cause why he should not be punished for contempt. The contempt proceedings shall be
conducted pursuant to the provisions of the Rules of Court.
Sec. 33. Duty to Render Assistance to the Office of the Ombudsman. Any officer or employee of any department,
bureau or office, subdivision, agency or instrumentality of the Government, including government-owned or controlled
corporations and local governments, when required by the Ombudsman, his Deputy or the Special Prosecutor shall
render assistance to the Office of the Ombudsman.
Sec. 34. Annual Report. The Office of the Ombudsman shall render an annual report of its activities and
performance to the President and to Congress to be submitted within thirty (30) days from the start of the regular
session of Congress.
Sec. 35. Malicious Prosecution. Any person who, actuated by malice or gross bad faith, files a completely
unwarranted or false complaint against any government official or employee shall be subject to a penalty of one (1)
month and one (1) day to six (6) months imprisonment and a fine not exceeding Five thousand pesos (P5,000.00).
Sec. 36. Penalties for Obstruction. Any person who willfully obstructs or hinders the proper exercise of the functions
of the Office of the Ombudsman or who willfully misleads or attempts to mislead the Ombudsman, his Deputies and
the Special Prosecutor in replying to their inquiries shall be punished by a fine of not exceeding Five thousand pesos
(P5,000.00).
Sec. 37. Franking Privilege. All official mail matters and telegrams of the Ombudsman addressed for delivery within
the Philippines shall be received, transmitted, and delivered free of charge: provided, that such mail matters when
addressed to private persons or nongovernment offices shall not exceed one hundred and twenty (120) grams. All
mail matters and telegrams sent through government telegraph facilities containing complaints to the Office of the

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Ombudsman shall be transmitted free of charge, provided that the telegram shall contain not more than one hundred
fifty (150) words.
Sec. 38. Fiscal Autonomy. The Office of the Ombudsman shall enjoy fiscal autonomy. Appropriations for the Office
of the Ombudsman may not be reduced below the amount appropriated for the previous years and, after approval,
shall be automatically and regularly released.
Sec. 39. Appropriations. The appropriation for the Office of the Special Prosecutor in the current General
Appropriations Act is hereby transferred to the Office of the Ombudsman. Thereafter, such sums as may be
necessary shall be included in the annual General Appropriations Act.
Sec. 40. Separability Clause. If any provision of this Act is held unconstitutional, other provisions not affected
thereby shall remain valid and binding.
Sec. 41. Repealing Clause. All laws, presidential decrees, letters of instructions, executive orders, rules and
regulations insofar as they are inconsistent with this Act, are hereby repealed or amended as the case may be.
Sec. 42. Effectivity. This Act shall take effect after fifteen (15) days following its publication in the Official Gazette or
in three (3) newspapers of general circulation in the Philippines.
Administrative Order No. 07, Rule II. Procedure in criminal cases.
Sec. 1. Grounds. A criminal complaint may be brought for an offense in violation of R.A. 3019, as amended, R.A.
1379 as amended, R.A. 6713, Title VII, Chapter II, Section 2 of the Revised Penal Code, and for such other offenses
committed by public officers and employees in relation to office.
Sec. 2. Evaluation. Upon evaluating the complaint, the investigating officer shall recommend whether it may be:
a) dismissed outright for want of palpable merit;
b) referred to respondent for comment;
c) indorsed to the proper government office or agency which has jurisdiction over the case;
d) forwarded to the appropriate office or official for fact-finding investigation;
e) referred for administrative adjudication; or
f) subjected to a preliminary investigation.
xxx
Sec. 4. Procedure. The preliminary investigation of cases falling under the jurisdiction of the Sandiganbayan and
Regional Trial Courts shall be conducted in the manner prescribed in Section 3, Rule 112 of the Rules of Court,
subject to the following provisions:
a) If the complaint is not under oath or is based only on official reports, the investigating officer shall require the
complainant or supporting witnesses to execute affidavits to substantiate the complaints.
b) After such affidavits have been secured, the investigating officer shall issue an order, attaching thereto a copy
of the affidavits and other supporting documents, directing the respondents to submit, within ten (10) days from
receipt thereof, his counter-affidavits and controverting evidence with proof of service thereof on the complainant. The
complainant may file reply affidavits within ten (10) days after service of the counter-affidavits.
c) If the respondent does not file a counter-affidavit, the investigating officer may consider the comment filed by
him, if any, as his answer to the complaint. In any event, the respondent shall have access to the evidence on record.
d) No motion to dismiss shall be allowed except for lack of jurisdiction. Neither may a motion for a bill of
particulars be entertained. If respondent desires any matter in the complainant's affidavit to be clarified, the
particularization thereof may be done at the time of clarificatory questioning in the manner provided in paragraph (f) of
this section.
e) If the respondents cannot be served with the order mentioned in paragraph 6 hereof, or having been served,
does not comply therewith, the complaint shall be deemed submitted for resolution on the basis of the evidence on
the record.
f) If, after the filing of the requisite affidavits and their supporting evidences, there are facts material to the case
which the investigating officer may need to be clarified on, he may conduct a clarificatory hearing during which the
parties shall be afforded the opportunity to be present but without the right to examine or cross-examine the witness
being questioned. Where the appearance of the parties or witnesses is impracticable, the clarificatory questioning
may be conducted in writing, whereby the questions desired to be asked by the investigating officer or a party shall be

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reduced into writing and served on the witness concerned who shall be required to answer the same in writing and
under oath.
g) Upon the termination of the preliminary investigation, the investigating officer shall forward the records of the
case together with his resolution to the designated authorities for their appropriate action thereon.
No information may be filed and no complaint may be dismissed without the written authority or approval of the
Ombudsman in cases falling within the jurisdiction of the Sandiganbayan, or of the proper Deputy Ombudsman in all
other cases.
Sec. 5. Cases falling under the jurisdiction of municipal trial courts. Cases falling under the jurisdiction of the Office
of the Ombudsman which are cognizable by municipal trial courts, including those subject to the Rule on Summary
Procedure may only be filed in court by information approved by the Ombudsman or the proper Deputy Ombudsman.
Sec. 6. Notice to parties. The parties shall be served with a copy of the resolution as finally approved by the
Ombudsman or by the proper Deputy Ombudsman.
Sec. 7. Motion for reconsideration.
a) Only one motion for reconsideration or reinvestigation of an approved order or resolution shall be allowed, the
same to be filled within five (5) days from notice thereof with the Office of the Ombudsman, or the proper Deputy
Ombudsman as the case may be, with corresponding leave of court in cases where information has already been filed
in court;
b) The filing of a motion for reconsideration/reinvestigation shall not bar the filing of the corresponding information
in Court on the basis of the finding of probable cause in the resolution subject of the motion.

III. Procedure in cases not requiring a preliminary investigation


A. MTC cases or those covered by summary procedure
Rule 112, Sec. 8. supra

B. When person lawfully arrested without warrant


Rule 112, Sec. 6. supra
DOJ Department Order No. 61. Inquest Procedures. Evidence Needed for Inquest Proceedings.
Sec. 1. Concept. Inquest is an informal and summary investigation conducted by a public prosecutor in criminal
cases involving persons arrested and detained without the benefit of a warrant of arrest issued by the court for the
purpose of deter-mining whether or not said persons should remain under custody and correspondingly be charged in
court.
Sec. 2. Designation of Inquest Officers. The City or Provincial Prosecutor shall designate the Prosecutors assigned
to inquest duties and shall furnish the Philippine National Police (PNP) a list of their names and their schedule of
assignments. If, however, there is only one Prosecutor in the area, all inquest cases shall be referred to him for
appropriate action. Unless otherwise directed by the City or Provincial Prosecutor, those assigned to inquest duties
shall discharge their functions during the hours of their designated assignments and only at the
police stations/headquarters of the PNP in order to expedite and facilitate the disposition of inquest cases.
Sec. 3. Commencement and Termination of Inquest. The inquest proceedings shall be considered commenced
upon receipt by the Inquest Officer from the law enforcement authorities of the complaint/referral documents which
should include:
a. the affidavit of arrest;
b. the investigation report;
c. the statement of the complainant and witnesses; and
d. other supporting evidence gathered by the police in the course of the latters investigation of the criminal
incident involving the arrested or detained person.
The inquest Officer shall, as far as practicable, cause the affidavit of arrest and statements/affidavits of the
complainant and the witnesses to be subscribed and sworn to before him by the arresting officer and the affiants. The
inquest proceedings must be terminated within the period prescribed under the provisions of Article 125 of the
Revised Penal Code, as amended.

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Sec. 4. Particular Documents Required in Specific Cases. The submission, presentation of the documents listed
herein below should as far as practicable, be required in the following cases by the Inquest Officer.
Violation of the Anti-Fencing Law (PD 1612)
a. a list/inventory of the articles and items subject of the offense; and
b. statement of their respective value
Illegal Possession of Explosives (PD 1866)
a. chemistry report duly signed by the forensic chemist and
b. photograph of the explosives, if readily available.
Violation of the Fisheries Law (PD 704)(now RA 8550)
a. photograph of the confiscated fish, if readily available; and
b. certification of the Bureau of Fisheries and Aquatic Resources;
Violation of the Forestry Law (PD 705)
a. scale sheets containing the volume and species of the forest products confiscated, number of pieces and other
important
details such as estimated value of the products confiscated;
b. certification of Department of Environment and Natural Resources/Bureau of Forest Management; and
c. seizure receipt.
The submission of the foregoing documents shall no absolutely be required if there are other forms of evidence
submitted which will sufficiently establish the facts sought to be proved by the foregoing documents.
Sec. 5. Incomplete documents. When the documents presented are not complete to establish probable cause, the
Inquest Officer shall direct the law enforcement agency to submit the required evidence within the period prescribed
under the provisions of Article 125 of the Revised Penal Code, as amended; otherwise, the Inquest Officer shall
order the release of the detained person and, where the inquest is conducted outside of office hours, direct the law
enforcement agency concerned to file the case with the City or Provincial Prosecutor for appropriate action.
Sec. 6. Presence of the detained person. The presence of the detained person who is under custody shall
be ensured during the proceedings. However, the production of the detained person before the Inquest Officer may be
dispensed with in the following cases:
a. if he is confined in a hospital;
b. if he is detained in a place under maximum security;
c. if production of the detained person involve security risks; or
d. if the presence of the detained person is not feasible by reason of age, health, sex and other similar factors.
The absence of the detained person by reason of any of the foregoing factors must be noted by the Inquest
Officer and reflected in the record of the case.
Sec. 7. Charges and counter-charges. All charges and counter-charges arising from the same incident shall, as far
as practicable, be consolidated and inquested jointly to avoid contradictory or inconsistent dispositions.
Sec. 8. Initial duty of the inquest officer. The Inquest Officer must first determine if the arrest of the detained person
was made in accordance with the provisions of paragraphs (a) and (b) of Section 5, Rule 113 of the 1985 Rules on
Criminal Procedure, as amended, which provide that arrests without a warrant may be effected:
a. when, in the presence of the arresting officer, the person to be arrested has committed, is actually committing,
or is attempting to commit an offense; or
b. when an offense has in fact just been committed, and the arresting officer has personal knowledge of facts
indicating that the person to be arrested has committed it. For this purpose, the Inquest Officer may summarily
examine the arresting officers on the circumstances surrounding the arrest or apprehension of the detained person.
Sec. 9. Where arrest not properly effected. Should the Inquest Officer find that the arrest was not made in
accordance with the Rules, he shall:
a. recommend the release of the person arrested or detained;
b. note down the disposition of the referral document;
c. prepare a brief memorandum indicating the reasons for the action taken; and
d. forward the same, together with the record of the case, to the City or Provincial Prosecutor for appropriate
action.
Where the recommendation for the release of the detained person is approved by the City or Provincial
Prosecutor but the evidence on hand warrant the conduct of a regular preliminary investigation, the order of release
shall be served on the officer having custody of said detainee and shall direct the said officer to serve upon the

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detainee the subpoena or notice of preliminary investigation, together with the copies of the charge sheet or
complaint, affidavits or sworn statements of the complainant and his witnesses and other supporting evidence.
Sec. 10. Where the arrest property effected. Should the Inquest Officer find that the arrest was properly effected,
the detained person should be asked if he desires to avail himself of a preliminary investigation, if he does, he shall
be made to execute a waiver of the provisions of Article 125 of the Revised Penal Code, as amended, with the
assistance of a lawyer and, in case of non-availability of a lawyer, a responsible person of his choice. The preliminary
investigation may be conducted by the Inquest Officer himself or by any other Assistant Prosecutor to whom the case
may be assigned by the City or Provincial Prosecutor, which investigation shall be terminated within fifteen (15) days
from its inception.
Sec. 11. Inquest proper. Where the detained person does not opt for a preliminary investigation or otherwise
refuses to execute the required waiver, the Inquest Officer shall proceed with the inquest by examining the sworn
statements/affidavits of the complainant and the witnesses and other supporting evidence submitted to him. If
necessary, the Inquest Officer may require the presence of the complainant and witnesses and subject them to an
informal and summary investigation or examination for purposes of determining the existence of probable cause.
Sec. 12. Meaning of probable cause. Probable cause exists when the evidence submitted to the Inquest Officer
engenders a well-founded belief that a crime has been committed and that the arrested or detained person is
probably guilty thereof.
Sec. 13. Presence of probable cause. If the Inquest Officer finds that probable cause exists, he shall forthwith
prepare the corresponding complaint/information with the recommendation that the same be filed in court. The
complaint/information shall indicate the offense committed and the amount of bail recommended, if bailable.
Thereafter, the record of the case, together with the prepared com-plaint/information, shall be forwarded to the City or
Provincial Prosecutor for appropriate action. The complaint/information may be filed by the Inquest Officer himself or
by any other Assistant Prosecutor to whom the case may be assigned by the City or Provincial Prosecutor.
Sec. 14. Contents of information. The information shall, among others, contain:
a. a certification by the filing Prosecutor that he is filing the same in accordance with the provisions of Section 7,
Rule 112 of the 1985 Rules on Criminal Procedure, as amended, in cases cognizable by the Regional Trial Court;
b. the full name and alias, if any, and address of the accused;
c. the place where the accused is actually detained;
d. the full names and addresses of the complainant and witnesses;
e. a detailed description of the recovered item, if any;
f. the full name and address of the evidence custodian;
g. the age and date of birth of the complainant or the accused, if eighteen (19) years of age or below; and
h. the full names and addresses of the parents, custodians or guardians of the minor complainant or accused, as
the case may be.
Sec. 15. Absence of probable cause. If the Inquest Officer finds no probable cause, he shall:
a. recommend the release of the arrested or detained person;
b. note down his disposition on the referral document;
c. prepare a brief memorandum indicating the reasons for the action taken; and
d. forthwith forward the record of the case to the City or Provincial Prosecutor for appropriate action.
If the recommendation of the Inquest Officer for the release of the arrested or detained person is approved, the
order of release shall be served on the officer having custody of the said detainee. Should the City or Provincial
Prosecutor disapprove the recommendation of re-lease, the arrested or detained person shall remain under
custody, and the corresponding complaint/information shall be filed by the City or Provincial Prosecutor or by any
Assistant Prosecutor to whom the case may be assigned.
Sec. 16. Presence at the crime scene. Whenever a dead body is found and there is reason to believe that the death
resulted from foul play, or from the unlawful acts or omissions of other persons and such fact has been brought to his
attention, the Inquest Officer shall:
a. forthwith proceed to the crime scene or place of discovery of the dead person;
b. cause an immediate autopsy to be conducted by the appropriate medico-legal officer in the locality or the PNP
medico-legal division or the NBI medico-legal office, as the case may be;
c. direct the police investigator to cause the taking of photographs of the crime scene or place of discovery of the
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d. supervise the investigation to be conducted by the police authorities as well as the recovery of all articles and
pieces of evidence found thereat and see to it that the same are safeguarded and the chain of the custody
thereof properly recorded; and
e. submit a written report of his finding to the City or Provincial Prosecutor for appropriate action.
Sec. 17. Sandiganbayan cases. Should any complaint cognizable by the Sandiganbayan be referred to an Inquest
Officer for investigation, the latter shall, after conducting the corresponding inquest proceeding, forthwith forward the
complete record to the City or Provincial Prosecutor for appropriate action.
RPC, Art. 125. supra
RJCL, Sec. 8. supra

IV. Remedies from preliminary investigation


A. Appeal
DOJ Department Order No. 70. 2000 NPS Rule on Appeal.
In the interest of expeditious and efficient administration of justice and in line with the recent jurisprudence, the
following Rule governing appeals from resolutions of prosecutors in the National Prosecution Service, to be known as
the 2000 NPS Rule on Appeal, is hereby adopted.
Sec. 1. Scope. This Rule shall apply to appeals from resolutions of the Chief State Prosecutor, Regional State
Prosecutors and Provincial/City Prosecutors in cases subject of preliminary investigation/ reinvestigation.
Sec. 2. Where to appeal. An appeal may be brought to the Secretary of Justice within the period and in the manner
herein provided.
Sec. 3. Period to appeal. The appeal shall be taken within fifteen (15) days from receipt of the resolution, or of the
denial of the motion for reconsideration/reinvestigation if one has been filed within fifteen (15) days from receipt of the
assailed resolution. Only one motion for reconsideration shall be allowed.
Sec. 4. How appeal taken. An aggrieved party may appeal by filing a verified petition for review with the Office of the
Secretary, Department of Justice, and by furnishing copies thereof to the adverse party and the Prosecution Office
issuing the appealed resolution.
Sec. 5. Contents of petition. The petition shall contain or state: (a) the names and addresses of the parties; (b) the
Investigation Slip number (I.S. No.) and criminal case number, if any, and title of the case, including the offense
charged in the complaint; (c) the venue of the preliminary investigation; (d) the specific material dates showing that it
was filed on time; (e) a clear and concise statement of the facts, the assignment of errors, and the reasons or
arguments relied upon for the allowance of the appeal; and (f) proof of service of a copy of the petition to the adverse
party and the Prosecution Office concerned. The petition shall be accompanied by legible duplicate original or certified
true copy of the resolution appealed from together with legible true copies of the complaint, affidavits/sworn
statements and other evidence submitted by the parties during the preliminary investigation/ reinvestigation. If an
information has been filed in court pursuant to the appealed resolution, a copy of the motion
to defer proceedings filed in court must also accompany the petition. The investigating/reviewing/approving
prosecutor shall not be impleaded as party respondent in the petition. The party taking the appeal shall be referred to
in the petition as either "Complainant-Appellant" or "Respondent- Appellant".
Sec. 6. Effect of failure to comply with requirements. The failure of the petitioner to comply with any of the
foregoing requirements shall constitute sufficient ground for the dismissal of the petition.
Sec. 7. Action on the petition. The Secretary of Justice may dismiss the petition outright if he finds the same to be
patently without merit or manifestly intended for delay, or when the issues raised therein are too unsubstantial to
require consideration. If an information has been filed in court pursuant to the appealed resolution, the petition shall
not be given due course if the accused had already been arraigned. Any arraignment made after the filing of the
petition shall not bar the Secretary of Justice from exercising his power of review.

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Sec. 8. Comment. Within a non-extendible period of fifteen (15) days from receipt of a copy of the petition, the
adverse party may file a verified comment, indicating therein the date of such receipt and submitting proof of service
of his comment to the petitioner and the Prosecution Office concerned. Except when directed by the Secretary of
Justice, the investigating/reviewing/ approving prosecutor need not submit any comment. If no comment is filed within
the prescribed period, the appeal shall be resolved on the basis of the petition.
Sec. 9. Effect of the appeal. Unless the Secretary of Justice directs otherwise, the appeal shall not hold the filing of
the corresponding information in court on the basis of the finding of probable cause in the appealed resolution. The
appellant and the trial prosecutor shall see to it that, pending resolution of the appeal, the proceedings in court are
held in abeyance.
Sec. 10. Withdrawal of appeal. Notwithstanding the perfection of the appeal, the petitioner may withdraw the same
at any time before it is finally resolved, in which case the appealed resolution shall stand as though no appeal has
been taken.
Sec. 11. Reinvestigation. If the Secretary of Justice finds it necessary to reinvestigate the case, the
reinvestigation shall be held by the investigating prosecutor, unless, for compelling reasons, another prosecutor is
designated to conduct the same.
Sec. 12. Disposition of the appeal. The Secretary may reverse, affirm or modify the appealed resolution. He may,
motu proprio or upon motion, dismiss the petition for review on any of the following grounds:
That the petition was filed beyond the period prescribed in Section 3 hereof;
That the procedure or any of the requirements herein provided has not been complied with;
That there is no showing of any reversible error;
That the appealed resolution is interlocutory in nature, except when it suspends the proceedings based on the
alleged
existence of a prejudicial question;
That the accused had already been arraigned when the appeal was taken;
That the offense has already prescribed; and
That other legal or factual grounds exist to warrant a dismissal.
Sec. 13. Motion for reconsideration. The aggrieved party may file a motion for reconsideration within a nonextendible period of ten (10) days from receipt of the resolution on appeal, furnishing the adverse party and the
Prosecution Office concerned with copies thereof and submitting proof of such service. No second or further motion
for reconsideration shall be entertained.
Sec. 14. Repealing clause. This Circular supersedes Department Order No. 223 dated June 30, 1993 and all other
Department issuances inconsistent herewith.
Sec. 15. Effectivity. This Circular shall be published once in two (2) newspapers of general circulation, after which it
shall take effect on September 1, 2000.

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Procedure of appeal to the DOJ of the prosecutors resolution

Cf.
DOJ-NPS Manual, Part IV. Petition for Review.
Sec. 1. Subject of petition for review. Only resolutions of the Chief State Prosecutor/Regional State
Prosecutor/Provincial or City Prosecutor dismissing a criminal complaint may be the subject of a Petition for Review to
the Secretary of Justice except as otherwise provided in Section 4 hereof.
A petition from the resolution of a Provincial/City Prosecutor where the penalty prescribed for the offense charged
does not exceed prision correccional, regardless of the imposable fine, shall be made to the Regional State
Prosecutor who shall resolve the petitions with finality. Such petitions shall also be governed by these rules.
The provisions of the preceding paragraph on the finality of the resolution of the Regional State Prosecutor
notwithstanding, the Secretary of Justice may, in the interest of justice and pursuant to his residual authority of
supervision and control over the prosecutors of the Department of Justice, order the automatic review by his office of
the resolution of the Regional State Prosecutors in the cases appealed to the latter.
Sec. 2. Period to file petition. The petition must be filed within a period of fifteen (15) days from receipt of the
questioned resolution by the party or his counsel. The period shall be interrupted only by the filing of a motion for
reconsideration within ten (10) days from receipt of the resolution and shall continue to run from the time the
resolution denying the motion shall have been received by the movant or his counsel.
Sec. 3. Form and contents. The petition shall be verified by the petitioner and shall contain the following:
a) date of receipt of the questioned resolution; date of filing of the motion for reconsideration, if any; and date of
receipt of the resolution on the motion for reconsideration;
b) names and addresses of the parties;
c) the Investigation Slip Number or I.S. No. and/or criminal case number and the title of the case;
d) the venue of the preliminary investigation;
e) a clear and concise statement of the facts, the assignment of errors, and the legal basis of the petition;
f) in case of a finding of probable cause, that petitioner has filed in court a motion to defer further proceedings;
and
g) proof of service of a copy of the petition to the adverse party or his counsel and the prosecutor either by
personal delivery or registered mail evidenced by the registry receipts and affidavit of mailing.
The petitioner shall append to his petition copies of the material and pertinent affidavits/sworn statements
(including their translations, if any, duly certified by the city/provincial prosecutor) and evidence submitted in the
preliminary investigation by both parties and the questioned resolution.

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The prosecutor concerned shall immediately inform the Department or the Regional State Prosecutor of the
action of the court on the motion to defer further proceedings. If the accused is arraigned during the pendency of the
petition, the prosecutor concerned shall likewise immediately inform the Department or the Regional Stat& Prosecutor
of such arraignment.
Sec. 4. Cases not subject to review; exceptions. No petition may be allowed from a resolution of the Chief State
Prosecutor / Regional State Prosecutor/Provincial or City Prosecutor finding probable cause except upon showing of
manifest error or grave abuse of discretion. Either complainant/offended party or respondent/accused may file a
petition. Notwithstanding the showing of manifest error or grave abuse of discretion no petition shall be entertained
where the accused had already been arraigned. Once arraigned, the petition shall be dismissed motu proprio by the
Secretary of Justice.
Sec. 5. Answer. Within a non-extendible period of fifteen (15) days from receipt of a copy of the petition, the
respondent may file a verified answer indicating therein the date that the copy of the petition was received with proof
of service of the answer to the petitioner. If no answer is filed, the case shall be resolved on the basis of the petition.
Sec. 6. Withdrawal of petition. The petition may be withdrawn at any time before it is finally resolved, in which case
the questioned resolution shall stand.
Sec. 7. Motion for reinvestigation. At any time after the filing of the petition and before its resolution, the petitioner
may, with leave of court, file a motion for reinvestigation on the ground that new and material evidence has been
discovered which petitioner could not, with reasonable diligence, have discovered during the preliminary investigation
and which if produced and admitted would probably change the resolution. The Department or the Regional State
Prosecutor, as the case may be, shall then issue a resolution directing the reinvestigation of the case, if still legally
feasible. When reinvestigation is granted, it shall take place in the Office of the Prosecutor from which the petition
was taken.
Sec. 8. Disposition of petition. The Secretary of Justice or the Regional State Prosecutor may reverse, affirm or
modify the questioned resolution. They may, motu proprio or on motion of the petitioner, dismiss outright the petition
on any of the following grounds:
a) that the offense has prescribed;
b) that there is no showing of any reversible error;
c) that the procedure or requirements herein prescribed have not been complied with;
d) that the questioned resolution is interlocutory in nature, except when it suspends the proceedings based on the
alleged existence of a prejudicial question; or
e) that other legal or factual grounds exist to warrant a dismissal.
Sec. 9. Motion for Reconsideration. The aggrieved party may file a motion for reconsideration within a nonextendible period of ten (10) days from receipt of the resolution on the petition, furnishing the adverse party or his
counsel and the prosecutor with copies thereof. No second motion for reconsideration shall be entertained.
Sec. 10. Effect of filing of petition. A petition for review, motion for reconsideration/reinvestigation from a resolution
finding probable cause shall not hold the filing of the information in court.
Pending resolution of the Petition for review, the accused is entitled to a suspension of the proceedings, to the
holding in abeyance of the issuance of warrant of arrest, and deferment of the arraignment.
OC says:

Remedies for preliminary investigation are available for both the complainant and the respondent. It is a
mutual option.

When is a petition verified?


o Should be filed and signed by the lawyer; but there should be a page at the back signed by the
party (verification page)
o Under oath: so the client can be charged with perjury for falsehood in the facts

Copies must be sent to everyone.

First stop of appeal: Clerk! If its lacking in any aspect, it will be dismissed outright.

Comment must also be verified.

Once court receives information, it now takes jurisdiction over the criminal case; DOJ/Prosecutor can do
whatever they want but it is no longer binding upon the court.
o If a Motion to Dismiss by the Prosecutor is no longer binding, why does this process of appeal still
exist?

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Appellant and prosecutor are supposed to file a Motion to Defer (Proceedings)


Motion for Deferment: gives DOJ 60 days to make a resolution
If theres still no resolution, Crespo v. Mogul applies.

60 days isnt realistic. (It never happens.) However, you also dont want to take time
away from the judge.
Why is the prosecutor not impleaded in the appeal according to DO No. 70?
o He is not impleaded because it is not discretionary.
o When the resolution is appealed, the caption is not changed.
o When it is certiorari, where grave abuse is alleged, it leaves the department.

Dimatullac v. Villon
Facts: Reinvestigation for an information on a murder charge was conducted and downgraded to homicide. Before
the resolution from such reinvestigation, accused appealed the information charging murder with the Secretary of
Justice. Arrest warrants were issued for the first charge. The accused were not yet arrested, nor did they surrender to
the court.
Held: Though Sec. 5, Rule 112 states that the prosecutor is not bound by the findings of the judge who conducted the
investigation, the resolution should be based on the review of the record and evidence transmitted. Hence, she should
have sustained the recommendation since all the accused, except Yambao, failed to file their counter-affidavits.
Prosecutor allowed accused to submit their counter-affidavits without first demanding that they surrender because of
the standing warrants of arrest against them, allowing them to make a mockery of the law in order that they gain their
provisional liberty pending trial and be charged with the lesser offense of homicide.

B. Reinvestigation/preliminary investigation
OC says:

Difference between preliminary investigation (as a remedy) and reinvestigation is material. (Refer to Table 9,
appendix, page 85) An erroneous designation can cause the court to deny to deny the motion.
Crespo v. Mogul
Facts: An information was filed against Crespo. DOJ Undersecretary directed the fiscal to immediately move for the
dismissal of the information.
Held: General principle is that fiscal directs and controls the prosecution of the criminal action. Once the court
acquires jurisdiction (upon the filing of the information), it may proceed according to how it sees fit. However, upon a
filing of a petition for review, the Secretary of Justice may direct that a motion to dismiss the case be filed in court.
Roberts v. CA
Facts: Pepsi Number Fever
Held: There is nothing in Crespo which bars the DOJ from taking cognizance of an appeal, by way of petition for
review. Once a motion to dismiss or withdraw the information is filed, the judge may grant or deny it, not out of
subservience to the DOJ Secretary, but in faithful exercise of judicial prerogative.
Dungog v. CA
Facts: Provincial Fiscal Inting filed an information for estafa and submitted to the court. Upon reinvestigation, he
reversed himself and filed to withdraw the case.
Held: Once a complaint or information is filed in court, any disposition of the case as to its dismissal or conviction or
acquittal of the accused rests in the discretion of the court, not with the fiscal.
Velasquez v. Undersecretary of Justice
Facts: A complaint for estafa was filed against respondent Avila. The City Fiscals office ordered the filing of an
information for Estafa against Avila in the RTC. Before arraignment, Avila filed a petition for review of the City Fiscals
order in the DOJ. The petition as well as Avilas motion for reconsideration were denied. The respondent
Undersecretary granted the second motion for reconsideration and directed the City Fiscal to conduct a
reinvestigation.
Held: Once the information is filed in court, the court acquires complete jurisdiction over it. A motion for
reinvestigation should, after the court had acquired jurisdiction over the case, be addressed to the trial judge and to
him alone.

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People v. Beriales
Facts: Private prosecutor authorized to conduct the case for prosecution. The accused refused to plead during
arraignment because the fiscal was not around. Trial court proceeded with the case.
Held: Even if there is a private prosecutor, the fiscal must still be present to supervise. Otherwise, evidence
presented may not be admitted.
C. Injunction and writs of restraint in proper cases
Exceptions to restraint by prohibition or injunction (as discussed in Primicias v. Pangasinan, infra)
1. For the orderly administration of justice
2. To prevent the use of the strong arm of the law in an oppressive and vindictive manner
3. To avoid multiplicity of actions
4. To afford adequate protection to constitutional rights
5. In proper cases, because the statute relied upon is unconstitutional or was held invalid
Primicias v. Pangasinan
Facts: A criminal complaint was filed in the Municipal Court of Urdaneta against Primicias for violation of the
ordinance regulating driving speed in populated and specific places. Primicias initiated an action for the annulment of
the ordinance with prayer for the issuance of preliminary injunction. The ordinance is held to be invalid. Court granted
injunction.
Held: On the issue of whether a writ of injunction can restrain the proceedings in the criminal case, the general rule is
that ordinarily, criminal prosecution may not be blocked by court prohibition or injunction. Exceptions however are
allowed in the instances enumerated (supra).
Hernandez v. Albano
Facts: Hernandez sought to enjoin the fiscals investigation of charges filed against him.
Held: The power to investigate postulates the other obligation on the part of the Fiscal to investigate promptly and file
the case of as speedily. A rule was formulated that ordinarily criminal prosecution may not be blocked by court
prohibition or injunction except in ordinary circumstances, this not being one.
Guingona, Jr. v. City Fiscal
Facts: The petition filed by Guingona, Jr., Santos, and Martin sought to prohibit the City fiscal from proceeding with
the PI on the ground of lack of jurisdiction since the allegations, testimony of Davids principal witness, and evidence
through said witness showed that the obligation was civil in nature.
Held: Fiscal has no jurisdiction to conduct a PI over cases that involve purely civil obligations.

D. Bail
Rule 114, Sec. 26. Bail not a bar to objections on illegal arrest, lack of or irregular preliminary investigation. An
application for or admission to bail shall not bar the accused from challenging the validity of his arrest or the legality of
the warrant issued therefor, or from assailing the regularity or questioning the absence of a preliminary investigation
of the charge against him, provided that he raises them before entering his plea. The court shall resolve the matter as
early as practicable but not later than the start of the trial of the case.
DOJ-NPS Manual, Part V. Bail.
Sec. 1. Bail defined. Bail is the security given for the release of a person in custody of the law, furnished by him or a
bondsman, conditioned upon his appearance before any court as required under the conditions hereinafter specified.
Bail may be given in the form of corporate surety, property bond, cash deposit, or recognizance.
Sec. 2. Nature of right to bad. The right to bail is guaranteed by the Constitution. It is the duty of the prosecutor to
recommend such amount of bail to the courts of justice as, in his opinion, would ensure the appearance of an accused
person when so required by the court.

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Sec. 3. Non-bailable offense. No person charged with a capital offense, or an offense punishable by reclusion
perpetua or life imprisonment, when evidence of guilt is strong, shall be admitted to bail regardless of the stage of the
criminal prosecution.
Sec. 4. Criteria in recommending amount of bail. In recommending the amount of bail to be granted by the court, the
prosecutor shall take into consideration the following standards and criteria:
a) financial ability of the respondent/accused to post bail;
b) nature and circumstances of the offense;
c) penalty for the offense charged;
d) age, state of health, character and reputation of the respondent/accused under detention;
e) weight of the evidence against the respondent/accused under detention;
f) forfeiture of other bonds and pendency of other cases wherein the respondent/accused under detention is
under bond;
g) the fact that respondent/accused under detention was a fugitive from justice when apprehended; and
h) other factors affecting the probability of the accused appearing at the trial.
Sec. 5. Burden of proof in bail application. At the hearing of an application for admission to bail filed by any person
who is in custody for the commission of an offense punishable by death, reclusion perpetua or life imprisonment, the
prosecution has the burden of showing that evidence of guilt is strong. The evidence presented during the bail
hearings shall be considered automatically reproduced at the trial, but upon motion of either party, the court may
recall any witness for additional examination unless the witness is dead, outside of the Philippines or otherwise
unable to testify.
Sec. 6. Recognizance. Whenever allowed pursuant to law or these Rules, the court may release a person in
custody on his own recognizance or that of a responsible person.
Sec. 7. Bail, when not required; reduced bail or recognizance. No bail shall be required when the law or the Rules
issued by the Supreme Court so provide.
When a person has been in custody for a period equal to or more than the possible maximum imprisonment of
the offense charged to which he may be sentenced, he shall be released immediately without prejudice to the
continuation of the trial thereof or the proceedings on appeal. In case the maximum penalty to which the accused may
be sentenced is destierro, he shall be released after thirty (30) days of preventive imprisonment.
A person in custody for a period equal to or more than the minimum of the principal penalty prescribed for the
offense charged without application of the Indeterminate Sentence Law or any modifying circumstance, shall be
released on a reduced bail or on his own recognizance, at the discretion of the court.
Sec. 8. Notice of application for bail to prosecutor. In an application for bail, the court shall give reasonable notice of
the hearing to the prosecutor or require him to submit his recommendation.
Sec. 9. Cancellation of hail bond. Upon application filed with the court and after due notice to the prosecutor, the bail
bond may be cancelled upon surrender of the accused or proof of his death.
The bail bond shall be deemed automatically cancelled upon acquittal of the accused or dismissal of the case or
execution of the final judgment of conviction.
In all instances, the cancellation shall be without prejudice to any liability on the bond.
Sec. 10. Arrest of accused out on hail. For the purpose of surrendering the accused, the bondsmen may arrest him,
or on written authority endorsed on a certified copy of the undertaking may cause him to be arrested by any police
officer or any other person of suitable age and discretion.
An accused released on bail may be re-arrested without the necessity of a warrant if he attempts to depart from
the Philippines without prior permission of the court where the case is pending.
Sec. 11. No bail after final judgment, exception. An accused shall not be allowed bail after the judgment has
become final, unless he has applied for probation before commencing to serve sentence, the penalty and the offense
being within the purview of the Probation Law. In case the accused has applied for probation, he may be allowed
temporary liberty under his bail bond, but if no bail was filed or the accused is incapable of filing one, the court may
allow his release on recognizance under the custody of a responsible member of the community. In no case shall bail
be allowed after the accused has commenced to serve sentence.

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Sec. 12. Rules in computing the bail to be recommended. To achieve uniformity in the amount of bail to be
recommended, the following rules shall be observed:
a) Where the penalty is reclusion perpetua, life imprisonment, reclusion perpetua to death or death, bail is not a
matter of right; hence, it shall not be recommended.
b) Where bail is a matter of right and the imposable penalty is imprisonment and/or fine, the bail shall be
computed on the basis of the penalty of imprisonment applying the following rules:
i. where the penalty is reclusion temporal (regardless of period) to reclusion perpetua, bail shall be computed
based on
the maximum of reclusion temporal.
ii. where the imposable penalty is correctional or afflictive, bait shall be based on the maximum of the
penalty,
multiplied by P2,000.00. A fraction of a year shall be rounded-off to one year.
iii. for crimes covered by the Rules on Summary Procedure and Republic Act No. 6036, bail is not required
except when
respondent/accused is under arrest, in which case, bail shall be computed in accordance with this
guideline.
iv. for crimes of reckless imprudence resulting in homicide arising from violation of the Land Transportation
and Traffic
Code, bail shall be P30,000.00 per deceased person.
v. for violation of Batas Pambansa Blg. 22, bail shall be 50% of the amount of check but should not be less
than
P2,000.00 nor more than P30,000.00.
c) Where the imposable penalty is only a fine, bail shall be computed as follows:
i. fine not exceeding P2,000.00,bail is not required.
ii. fine of more than P2,000.00,bail shall be 50% of the fine but should not exceed P30,000.00.
iii. in case of reckless imprudence resulting to damage to property, bail shall be three-eighths (3/8) of the
value of the
damage but not exceeding P30,OOO.OO except when covered by the Rules on Summary Procedure.
d) Bail based on the maximum penalty, multiplied by P1O,OOO.OO,shall be applied to the following offenses
under the following laws:
i. Republic Act No.6425 (Dangerous Drugs Act), as amended by RA 7659;
ii. Republic Act No.6539 (Anti-Carnapping Act), as amended by RA 7659;
iii. Republic Act No.7659 (for other crimes covered by it);
iv. Presidential Decree No. 186 (Illegal Possession of Firearms, Ammunition or Explosives), as amended by
RA 8294;
v. Republic Act No. 1937 (Tariff and Customs Code), as amended; or
vi. Rebellion, insurrection or Coup d'etat as amended by Republic Act No.6968.
Sec. 13. Petition for bail in a continuous trial. In case a petition for bail is filed by the accused and the court orders a
continuous trial of the case, the public prosecutor shall be prepared with his principal witnesses. Where there are
several accused and one or two filed a petition to bail, the trial prosecutor shall, before the presentation of his first
witness, manifest in open court that the evidence to be presented in the hearing of the petition for bail shall be
adopted as its evidence-in-chief.
Go v. CA
Facts: After a manhunt, Go presented himself before the police. He was then detained. Prosecutor told Go that
before he could avail of his right to a preliminary investigation he must first execute a waiver of the provision of Art
125 of RPC. He did not execute said waiver. Fiscal filed information without PI.
Held: Go did not waive his right to preliminary investigation. From the very beginning he demanded that a preliminary
investigation be conducted. He is still entitled to be released on bail as a matter of right. Should the evidence in the
belief of the prosecutor already of record concerning petitioner's guilt be strong, the prosecutor may move for
cancellation of petitioner's bail. It would then be up to the trial court, after a careful and objective assessment of the
evidence on record, to grant or deny the motion for cancellation of bail.
Larraaga v. CA
Facts: Larraaga alleged that he was denied the right to preliminary investigation and sought to annul the
informations as well as the warrant of arrest issued, and prayed that a preliminary investigation be conducted and that
he be released from detention pending the investigation.

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Held: Petitioner's detention is legal in view of the information and the warrant of arrest against him. The absence of a
preliminary investigation will not justify petitioner's release because such defect did not nullify the information and the
warrant of arrest against him.