WARRANTLESS ARREST & SEARCH: A POLICE PRIMER

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Date:  Monday, 30 January 2012 00:24

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

(Speech of Sen. MIRIAM DEFENSOR SANTIAGO at the Philippine National

Police Headquarters, Camp Crame, on March 13, 2006.)

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

1. When, in the presence of the policeman, the person to be arrested has

committed, is actually committing, or is attempting to commit an
offense. This is the "in flagrante delicto" rule.
2. When an offense has just been committed, and he has probable cause
to believe, based on personal knowledge of facts or circumstances,
that the person to be arrested has committed it. This is the "hot
pursuit" arrest rule.
3. When the person to be arrested is a prisoner who has escaped from a
penal establishment.

In flagrante delicto warrantless arrest should comply with the element of

immediacy between the time of the offense and the time of the arrest. For
example, in one case the Supreme Court held that when the warrantless
arrest was made three months after the crime was committed, the arrest
was unconstitutional and illegal.

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

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

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

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

If the warrantless arrest turns out to be unlawful, still the court is capable of
assuming jurisdiction over the accused. Any objection to the court’s
jurisdiction is waived, when the person arrested submits to arraignment
without any objection.

The test of in flagrante delicto arrest is that the suspect was acting under
circumstances reasonably tending to show that he has committed or is about
to commit a crime. Evidence of guilt is not necessary. It is enough if there is
probable cause. For example, if there was a prior arrangement to deliver
shabu inside a hotel, the immediate warrantless arrest of the accused upon
his entry in the hotel room is valid. By contrast, the discovery of marked
money on the accused does not justify a warrantless arrest.

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

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

* Mentally disabled persons on emergency grounds.

* Arrest based on unreasonable suspicion.

The Constitution does not forbid warrantless search; it only forbids

unreasonable search. The Rules of Court, Rule 126, Section 13, allows a
warrantless search, provided it is incident to a lawful arrest. The law
provides: "A person lawfully arrested maybe searched for dangerous
weapons or anything which may have been used or constitute proof in the
commission of an offense without a search warrant."

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

Any evidence obtained during an illegal search (even if it confirms initial

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

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

Another example, is the stop-and-frisk rule. A warrantless search is allowed

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

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

(1) A prior valid intrusion based on a valid warrantless arrest, in which the
police are legally present in the pursuit of their official duties.

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

(3) The evidence must be immediately apparent.

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

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

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

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

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

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