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RULE 112
Section 6.
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 already 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 7 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 of
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 may be conducted by
either the judge or the prosecutor. When conducted by the prosecutor, the
procedure for the issuance of a warrant or arrest by the judge shall be governed by
paragraph (a) of this section. When the investigation is conducted by the judge
himself, he shall follow the procedure provided in section 3 of this Rule. If the
findings and recommendations are affirmed by the provincial or city prosecutor, or
by the Ombudsman or his deputy, and the corresponding information is filed, he
shall issue a warrant of arrest. However, without waiting for the conclusion of the
investigation, the judge may issue a warrant of arrest if he finds after an
examination in writing and under oath of the complainant and his witnesses in the
form of searching question and answers, that a probable cause exists and that there
is a necessity of placing the respondent under immediate custody in order not to
frustrate the ends of justice.
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 7 of this Rule or is for an
offense penalized by fine only. The court shall then proceed in the exercise of its
original jurisdiction. (6a)
RULE 113
Section 5.
Arrest without warrant; when lawful. A peace officer or a private
person may, without a warrant, arrest a person:
When, in his presence, the person to be arrested has committed, is actually
committing, or is attempting to commit an offense;

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
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.
On 1 February 1988, military agents were dispatched to the St. Agnes Hospital,
Roosevelt Avenue, Quezon City, to verify a confidential information which was
received by their office, about a "sparrow man" (NPA member) who had been
admitted to the said hospital with a gunshot wound. That the wounded man in the
said hospital was among the five (5) male "sparrows" who murdered two (2)
Capcom mobile patrols the day before, or on 31 January 1988 at about 12:00 o'clock
noon, before a road hump along Macanining St., Bagong Barrio, Caloocan City. The
wounded man's name was listed by the hospital management as "Ronnie Javellon,"
twenty-two (22) years old of Block 10, Lot 4, South City Homes, Binan, Laguna
however it was disclosed later that the true name of the wounded man was Rolando
Dural. In view of this verification, Rolando Dural was transferred to the Regional
Medical Servicesof the CAPCOM, for security reasons. While confined thereat, he
was positively identified by the eyewitnesses as the one who murdered the 2
CAPCOM mobile patrols.
Issue: Whether or Not Rolando was lawfully arrested.
RULING: The arrests were legal. Regarding the subversion cases, the arrests were
legal since subversion is a form of a continuing crime together with rebellion,
conspiracy or proposal to commit rebellion/subversion, and crimes committed in
furtherance thereof or in connection therewith. On the inciting to sedition case, the
arrest was legal since an information was filed prior to his arrest. Lastly, the arrests
were not fishing expeditions but a result of an in-depth surveillance of NPA safe
houses pinpointed by none other than members of the NPA.
The right to preliminary investigation should be exercised by the offender as soon
as possible. Otherwise, it would be considered as impliedly waived and the filing of
information can proceed. This sort of irregularity is not sufficient to set aside a valid
judgment upon a sufficient complaint and after a trial free from error.
DISSENT: (Sarmiento, J.) The confidential information was nothing but hearsay. The
searches and arrests made were bereft of probable cause and that the petitioners
were not caught in flagrante delicto or in any overt act. Utmost, the authorities was
lucky in their fishing expeditions.
People vs. Burgos
The State (P) vs. Suspect NPA Rebel (D)

GR L-68955, September 4, 1986 (144 SCRA 1)


Summary: An informant identified a certain person as a member of a subversive

group who forcibly recruited him and based on this information, the police went to
arrest the suspect. At the time of the arrest, the suspect was merely plowing his
Rule of Law: In a warrantless arrest, the officer arresting a person who has just
committed, is committing, or is about to commit an offense must have personal
knowledge of that fact.
Facts: Cesar Masamlok personally and voluntarily surrendered to the authorities
stating that he was forcibly recruited by accused Ruben Burgos (D) as member of
the NPA, threatening him with the use of firearm against his life, if he refused.
Pursuant to this information, PC-INP members went to the house of the Burgos (D)
and saw him plowing his field when they arrived. One of the arresting offices called
Burgos (D) and asked him about the firearm. At first, Burgos (D) denied having any
firearm, but later, Burgos's (D) wife pointed to a place below their house where a
gun was buried in the ground.
After recovery of said firearm, Burgos (D) pointed to a stock pile of cogon where the
officers recovered alleged subversive documents. Burgos (D) further admitted that
the firearm was issued to him by Nestor Jimenez, team leader of sparrow unit.

Issues: Is the warrantless arrest valid? Is the warrantless search valid?

Ruling: No. Under Section 6(a) of Rule 113, the officer arresting a person who has
just committed, is committing, or is about to commit an offense must have personal
knowledge of that fact. The offense must also be committed in his presence or
within his view. (Sayo vs. Chief of Police, 80 Phil. 859).
There is no such personal knowledge in this case. Whatever knowledge was
possessed by the arresting officers, it came in its entirety from the information
furnished by Cesar Masamlok. The location of the firearm was given by the wife of
Burgos (D).
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. 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.
In this case, the Burgos (D) was arrested on the sole basis of Masamlok's verbal
report. Masamlok led the authorities to suspect that the accused had committed a
crime. They were still fishing for evidence of a crime not yet ascertained. The
subsequent recovery of the subject firearm on the basis of information from the lips

of a frightened wife cannot make the arrest lawful. If an arrest without warrant is
unlawful at the moment it is made, generally nothing that happened or is
discovered afterward can make it lawful. The fruit of a poisoned tree is necessarily
also tainted.
RULE 112
Section 7.
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
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. (7a; sec. 2, R.A. No. 7438)
R.A. 7438
Custodial Investigation (RA 7438)
Wednesday, August 8, 2012
in Constitution, Criminal, Law, Remedial
This is different from preliminary investigation but it serves the same purpose: to
protect the rights of a detained person.
Custodial investigation involves any questioning by law enforcement people after a
person is taken into custody or deprived of his freedom in any significant manner.
That includes "inviting" a person to be investigated in connection of a crime of
which he's suspect and without prejudice to the "inviting" officer for any violation of
law. If a person is taken into custody and the interrogation/questioning tends to
elicit incriminating statements, RA 7438 becomes operative (People vs. Tan, GR
117321, February 11, 1998.) Application of actual force or restraint isn't necessary;
intent to arrest is sufficient as well as the intent of the detainee/arrested person to
submit while thinking that submission is necessary. It will also apply if the
"invitation" is given by the military and the designated interrogation site is a
military outpost (Sanchez vs. Demetriou, GR 111771-77, November 9, 1993.)

Once a person has been taken into police custody the rules of RA 7438 are to be
applied. The rights of a person under custodial investigation are the following:
1.) To be assisted by counsel (and you can demand it!)
2.) To be informed by the arresting officer, in a language he can understand, of his
right to remain silent and to counsel (and if he can't afford one, he'll be provided
3.) The custodial investigation report will be null and void if it hasn't been read and
explained to him by counsel before he signed (or thumbmarked if he's illiterate) it
4.) Extrajudicial confessions must be put in writing and must be signed by him in
the presence of counsel or, if there's a valid waiver, any one of his parents, older
siblings, spouse, municipal mayor, municipal judge, district school supervisor or a
priest or religious minister chosen by him
5.) The waiver of a person under custodial investigation or detained under Art. 125
of the Revised Penal Code (delay in delivering detained persons to the proper
judicial authority) must be put in writing and signed by the detainee in the presence
of counsel or it will be null and void
6.) To be visited by, or have conferences with, members of his immediate family,
counsel, doctor, priest or religious minister or any national NGO duly accredited by
the CHR or international NGO duly accredited by the office of the President
The immediate family includes the following: spouse, parents, children, siblings,
grandparents, grandchildren, uncles, aunts, nephews, nieces, guardians, wards and
girlfriends and boyfriends.
If the assisting counsel is a private practitioner, he is entitled to the following
amounts for his services in the custodial investigation:
1.) Php150 if the crime in question is a light felony
2.) Php250 if it's a grave or less grave felony
3.) Php350 if it's a capital offense
This will be paid by the city or municipal government where the custodial
investigation is performed and payable by the province in question if the
city/municipality can't pay -and the municipal/city treasurer must certify that there
is no money first.
If counsel is absent, a custodial investigation can't proceed and the detainee must
be treated in accordance with Art. 125 of the Revised Penal Code.
If the arresting officer fails to inform the detainee or arrested person of his rights, he
will be sentenced to 8 to 10 years' imprisonment and/or a fine of Php6,000. And if
he was previously convicted for a similar offense, he gets perpetual absolute
disqualification as well.

The same penalty will also apply if the detainee or arrested person can't afford
counsel's services and the arresting officers/authorities don't provide counsel.
Obstructing counsel, immediate family members, doctors, priests or religious
ministers from visiting or conferring with the detainee at any time of the day (or
night in urgent cases, like when the detainee needs to have the sacrament of
anointing the sick administered to him) will be penalized by 4 to 6 years'
imprisonment and a fine of Php4,000.
A person under a normal audit investigation is not considered to be under custodial
investigation since a COA audit examiner isn't considered an arresting officer under
RA 7438 (Navallo vs. Sandiganbayan, 234 SCRA 175.)

Posted by kaye lee on 9:44 PM
G.R. No. L-14639 March 25, 1919 [Habeas Corpus]
Mayor Lukban, for the best of all reasons, to exterminate vice, ordered the
segregated district for women of ill repute, which had been permitted for a number
of years in the city of Manila, closed. The city authorities quietly perfected
arrangements with the Bureau of Labor for sending the women to Davao, Mindanao,
as laborers; with some government office for the use of the coastguard cutters
Corregidor and Negros, and with the Constabulary for a guard of soldiers.
Whether or not the person be actually confined for writ of Habeas Corpus to issue.
No, there is no need for actual confinement. Any restraint which precludes freedom
of action is sufficient. The forcible taking of women of ill-repute from Manila to be
brought to Davao, deprived them of their freedom of locomotion just as effectively
as if they were imprisoned.
RULE 126
RULE 126
Search and Seizure
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)
Section 2.
Court where application for search warrant shall be filed. An
application for search warrant shall be filed with the following:

Any court within whose territorial jurisdiction a crime was committed.

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
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)
Section 3.
Personal property to be seized. A search warrant may be issued for
the search and seizure of personal property:

Subject of the offense;


Stolen or embezzled and other proceeds, or fruits of the offense; or


Used or intended to be used as the means of committing an offense. (2a)

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. (3a)
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. (4a)
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)
Section 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. (6)
Section 8.
Search of house, room, or premise to be made in presence of two
witnesses. No search of a house, room, or any other premise 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. (7a)
Section 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. (8)
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)
Section 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. (10a)
Section 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.
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 complained 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.
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.(11a)
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)

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)

Facts: Respondents issued, on different dates, 42 search warrants against
petitioners personally, and/or corporations for which they are officers directing
peace officers to search the persons of petitioners and premises of their offices,
warehouses and/or residences to search for personal properties books of accounts,
financial records, vouchers, correspondence, receipts, ledgers, journals, portfolios,
credit journals, typewriters, and other documents showing all business transactions
including disbursement receipts, balance sheets and profit and loss statements and
Bobbins(cigarettes) as the subject of the offense for violations of Central Bank Act,
Tariff and Customs Laws, Internal Revenue Code, and Revised Penal Code.
Upon effecting the search in the offices of the aforementioned corporations and on
the respective residences of the petitioners, there seized documents, papers,
money and other records. Petitioners then were subjected to deportation
proceedings and were constrained to question the legality of the searches and
seizures as well as the admissibility of those seized as evidence against them.

On March 20, 1962, the SC issued a writ of preliminary injunction and partially lifted
the same on June 29, 1962 with respect to some documents and papers.

Search warrants issued were violative of the Constitution and the Rules, thus, illegal
or being general warrants. There is no probable cause and warrant did not
particularly specify the things to be seized. The purpose of the requirement is to
avoid placing the sanctity of the domicile and the privacy of communication and
correspondence at the mercy of the whims, caprice or passion of peace officers.
Document seized from an illegal search warrant is not admissible in court as a fruit
of a poisonous tee. However, they could not be returned, except if warranted by the
Petitioners were not the proper party to question the validity and return of those
taken from the corporations for which they acted as officers as they are treated as
personality different from that of the corporation.

Burgos vs. Chief of Staff (G.R. No. L-64261)

On 7 December 1982, Judge Ernani Cruz-Pao, Executive Judge of the then CFI Rizal
[Quezon City], issued 2 search warrants where the premises at 19, Road 3, Project
6, Quezon City, and 784 Units C & D, RMS Building, Quezon Avenue, Quezon City,
business addresses of the Metropolitan Mail and We Forum newspapers,
respectively, were searched, and office and printing machines, equipment,
paraphernalia, motor vehicles and other articles used in the printing, publication
and distribution of the said newspapers, as well as numerous papers, documents,
books and other written literature alleged to be in the possession and control of Jose
Burgos, Jr. publisher-editor of the We Forum newspaper, were seized. A petition for
certiorari, prohibition and mandamus with preliminary mandatory and prohibitory
injunction was filed after 6 months following the raid to question the validity of said
search warrants, and to enjoin the Judge Advocate General of the AFP, the city fiscal
of Quezon City, from using the articles seized as evidence in Criminal Case Q022782 of the RTC Quezon City (People v. Burgos).
Whether allegations of possession and printing of subversive materials may be the
basis of the issuance of search warrants.
Section 3 provides that no search warrant or warrant of arrest shall issue except
upon probable cause to be determined by the judge, or such other responsible
officer as may be authorized by law, 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. 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. In mandating that no warrant shall issue except upon probable cause to
be determined by the judge, after examination under oath or affirmation of the
complainant and the witnesses he may produce; the Constitution requires no less
than personal knowledge by the complainant or his witnesses of the facts upon
which the issuance of a search warrant may be justified. Herein, a statement in the
effect that Burgos is in possession or has in his control printing equipment and
other paraphernalia, news publications and other documents which were used and
are all continuously being used as a means of committing the offense of subversion
punishable under PD 885, as amended is a mere conclusion of law and does not
satisfy the requirements of probable cause. Bereft of such particulars as would
justify a finding of the existence of probable cause, said allegation cannot serve as
basis for the issuance of a search warrant. Further, when the search warrant applied
for is directed against a newspaper publisher or editor in connection with the
publication of subversive materials, the application and/or its supporting affidavits
must contain a specification, stating with particularity the alleged subversive

material he has published or is intending to publish. Mere generalization will not

1. People vs. Baes
68 Phil. 203
Baes, the parish priest of the Roman Catholic Church of Lumban, Laguna, charged
the accused
with an offense against religion for causing the funeral of a member of the Church
of Christ to pass
through the churchyard fronting the Roman Catholic Church, belonging to said
church and devoted to the religious worship thereof. The parish priest opposed this,
but through force and threats of physical violence by the accused, was compelled to
allow the funeral to pass through the said churchyard.
Whether or not the act complained of is notoriously offensive to the religious
feelings of the Catholics, thereby violating Article 133 of the RPC.
The facts alleged in the complaint constitute the offense defined and penalized in
article 133 of the Revised Penal Code, and should the fiscal file an information
alleging the said facts and a trial be thereafter held at which the said facts should
be conclusively established, the court may find the accused guilty of the offense
complained of, or that of coercion, or that of trespass under article 281 of the
Revised Penal Code.
Whether or not the act complained of is offensive to the religious feelings of the
Catholics, is a question of fact which must be judged only according to the feelings
of the Catholic and not those of other faithful ones. Laurel dissent: Offense to
religious feelings should not be made to depend upon the more or less broad or
narrow conception of any given particular religion, but should be gauged having in
view the nature of the acts committed and after scrutiny of all the facts and
circumstance which should be viewed through the mirror of an unbiased judicial
criterion. Otherwise, the gravity or leniency of the offense would hinge on the
subjective characterization of the act from the point of view of a given religious
denomination or sect, and in such a case, the application of the law would be partial
and arbitrary, withal, dangerous,
especially in a country said to be "once the scene of religious intolerance and
Article 133, RPC:
Offending the religious feelings.

The penalty of arresto mayor in its maximum period to prision correccional in its
minimum period shall be imposed upon anyone who, in a place devoted to religious

worship or during the celebration of any religious ceremoncy, shall perform acts
notoriously offensive to the feelings of the faithful.