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San Beda ~ College pf Law - RGCT Bar Operatlons Center
are flammable, corrosive, explosive or
poisonous substance, if not done in
accordance with the rules · and
regulations of the Air Transportation
Office (Sec. 4, RA. No. 6235).
NOTE: There is no attempted hijacking since it is
punishable under a special law and the attempted
stage is not punishable under the said law (U.S. v
Basa, G.R. No. L-3540, March-19, 1907).
FOUR KINDS OF AIRCRAFT AND THEIR
TREATMENT IN LAW:
1. Aircraft of Philippine registry
It must be in flight.
2. Aircraft of foreign registry
It need not be in flight.
3. Public utility passenger aircraft
- Mere carrying of prohibited substances is
criminal.
4. Public utility cargo aircraft
- Non-compliance with the A TO rules and
regulations constitutes the criminal act (BOADO,
supra at 415).
Under R.A. No. 9372, terrorism may be cortimitted
by any person who, among others, commits an act
punishable under RA. No. 6235 (Southern ·
Hemisphere Engagement Network, ··fnc. ...v....Anti-
;g;~~sm Council, G.R. No. 178552, ,October 5, ·
TITLE1WO:
CRIMES AGAINST THE
FUNDAMENTAL LAWS
OF THE STATE
For offenses under Book II, Title 2, all offenses other
than those regarding religion require that the
principal offender' is a public officer. The civilians are
merely accomplices or accessories (BOADO, supra
at 416).
CHAPTER ONE:
ARBITRARY DETENTION OR
EXPULSION, VIOLATION OF
DWELLING, PROHIBITION,
INTERRUPTION, AND
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law, the judges or mayors and barangay captains
DISSOLUTION OF (Milo v. Salanga, G.R. No. L-37007, July 20, 1987).
PEACEFUL MEETINGS AND
Private individuals who conspired with public officers
CRIMES AGAINST in detaining certain policemen are guilty of arbitrary
RELIGIOUS WORSHIP detention (REYES, Book Two, supra at 50).
(ARTS. 124-133) If the detention is perpetrated by other public officers
not vested with authority or any private individual,
the crime committed is illegal detention under Art.
267 or 268 (REYES, Book Two, supra at 49).
SECTION ONE:
ARBITRARY DETENTION AND ARREST WITHOUT WARRANT 15 THE
EXPULSION USUAL CAUSE OF ARBITRARY
DETENTION
However, a peace officer or a private person may,
without a warrant, arrest a person (REYES, Book
ARTICLE 124 ~ T-..yo,supra at52).
ARBITRARY DETENTION
The crime of unlawful arrest is absorbed in the crime
of arbitrary detention (REGALADO, supra at 381).
ELEMENTS: (POD)
1. That the offender is a fublic officer or employee;
2. That he Qetains a person; and
EFFECT WHEN PERSON ARRESTED 15
...•·:~:,;:.;(t,at t Qetention is without legal_ grounds ACQUITTED
•;x,iM,t,¥;4 · ·····••· . People, G.R. No. 154130, October 1, If the arrested persons are later found to be innocent
. 2003/. .i) and acquitted, the arresting officers are riot liable.
But if they do not strictly cornply with the said
conditions, the arresting officers can be held liable .
~;. DETENTION ;<
for the crime of arbitrary detention, for damages
It is the ·actual 'vonfinement of a person in an
under Art. 32 of the Civil .Code, and/or for other
enclosur.~.or fn any manner detaining and depriving
administrative sanctions (Umil v. Ramos, 'G.R. No:
him of,;_ · ·· ,(~le v. Flores, G.R. No. 116488,
81567, October 3, 1991).
May3f;
ARREST WITHOUT A WARRANT; WHEN
.. _DEltElntionneed not involve any physical restraint.
g!t .. ogical restraint is sufficient. If the acts and LAWFUL:
:4 12~·· ·stof the accused can produce such fear in 1. In flagrante delicto
the mind of the victim sufficient to paralyze the latter, When in his presence, the person to be
to the extent that the victim is compelled to limit his arrested has committed, is actually committing,
own actions and movements in accordance with the or is attempting to commit an offense {RULES
wishes of the accused, then the victim is, for all OF COURT, Rule 113, Sec. 5, Par. a);
intents and purposes, detained against his will
(People v. Fabro, G.R. No. 208441, July 17, 2017). "In his presence"
When the officer sees. the offense being
·LEGAL GROUNDS FOR THE committed, although at a distance, or hears the
DETENTION OF PERSONS: disturbance created thereby· and proceeds at
1. The commission of a crime; once to the scene thereof, or when the offense
2. Violent insanity; or is continuing or has not been consummated at
the time the arrest is made, the offense is said
3. Any other ailment requiring compulsory
to be committed in his presence or within his
confinement of the patient in a hospital (RPG,
view. (People v. Ng Vik Bun, G.R. No. 180452,
Art. 124, Par. 2).
January 10, 2011).
THE OFFENDER IS A PUBLIC OFFICER
2. Hot pursuit
OR EMPLOYEE When an offense has just been committed,
The public officers liable for arbitrary detention must and he has probab.fe cause to believe based on
be vested with authority to detain or order the personal knowledge of facts or circumstances
detention of persons accused of a crime; such public that the person to be arrested has committed it
officers are the policemen and other agents of the (RULES OF COURT, Rule 113, Sec. 5, Par. b);
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CRIMINAL LAW II
Criminal Law
and
NOTE: The determination of probable cause
does not call for the application of rules and
standards of proof that a judgment of conviction
requires after trial on the merits. As implied by
the words themselves, "probable cause" is ·
concerned with probability, not absolute or even
moral certainty. The prosecution need not
present at this s,tage proof beyond ·reasonable
doubt (Century Chinese Medicine Co. v. People,
G.R. No. 188526, November 11, 2013).
3. Escapee
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
temporarily confined while his case is pending,
or has escaped while being transferred from one
confinement to another (RULES OF COURT,
RULE 113, Sec. 5, Par. c).
NOTE: If a person lawfully arrested escapes or
is re.scu~, any person may immediately pursue
or retake hilll without a warrant at any time and
, in any place within the Philippines (RULES OF
COC/RT, RULE 113, Sec. 13).
For the purpose of surrendering the accused,
the bondsmeri 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 (RULES OF COURT, Rule 114,
· Sec. 23, Par. 1).
Anaccused released on bail may be re-arrested
without the. necessity of a warrant if he attempts
to <lepart from the Philippines without
permission of the court where the case is
pending (RULES OF COURT, Rule 114, Sec. 23,
Par. 2).
PERIODS OF DETENTION PENALIZED:
1. If the detention has not exceeded three (3)
days, the penalty is arresto mayor in its
maximum period to prision correccional in its
minimum period;
2. If the detention has continued more than
three (3) days but not more than fifteen .(15)
days.,_the penalty is prision correccional in its
medium and maximum periods;
3. If the detention has continued more than
fifteen (15) days but not more than six (6)
months, the penalty is prision mayor; or
4. If the detention has exceeded six (6) months,
the penalty is reclusion temporal (RPG, Art. 124,
Nos. 1 to 4).
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CRIMINAL LAW II
MEt4Q~Y AID
San Bede. University College of Law - RGCT Bar ~ Center
CriminalLaw

NOTE: Art. 124 does not fix the minimum period of imputed against him (Soria v. Desierto, G.R. investigation in accordance with the Rule, but he
detention. The arbitrary detention may last for less Nos. 153524-25, January 31, 2005). must sign a waiver of the provisions of Article 125 of
than half an hour (U.S. v. Braganza, G.R. No. L- the RPC, in the presence of his counsel (RULES OF
3971; February 3, 1908), or it may last for only one NOTE: Based on applicable laws and jurisprudence, COURT, Rule 112, Sec. 6, Par. 2).
hour (US. v. Agravante, G.R. No. L-3947, January an election day or a special holiday,. should not be
Public officer: Not \

28, 1908). included in the computation of the period prescribed REASON FOR ARTICLE 125
authorized to arrest and
by law for the filing of complaint/information in courts It is intended to prevent any abuse resulting from
detain a person, or he did
in cases of warrantless arrests, rt being a "no-office confining a person without informing him of his
not act in his official
day." (Soria v. Desierto, G.R. No. 153524-25, offense and without permitting him to go on bail
capacity
January 31, 2005). (Laurel v. Misa, G.R. No. L-200, March 28, 1946).
(BOADO, supra at 419-420, 778; REYES, Book
Two, supra at 747). CIRCUMSTANCES CONSIDERED IN A private individual who makes a lawful arrest must
The offender is The offender is It is committed
a law enforcer private person by a private DETERMINING LIABILITY OF OFFICER also comply with requirements under Art. 125. If he
acting in the or a law individual who ARTICLE 125 fails to comply, he is liable for the crime of illegal
DETAINING A PERSON BEYOND LEGAL
performance of enforcer acting unlawfully DELAY IN THE DELIVERY OF detention under Art. 267 or 268 (REYES, Book Two,
PERIOD: supra at 65).
public duties in his private kidnaps, DETAINED PERSONS TO THE
(BOADO, capacity detains, or 1. The means of communication;
PROPER JUDICIAL AUTHORITIES 2. The hour of arrest; and
supra at 777). (BOADO, otherwise NOTE: The illegality of the detention is not cured by
supra at 777). deprives a 3. Other circumstances such as: the filing of information in court (REYES, Book Two,
person of ELEMENTS: (PDF) a. The time of surr~nder; ·,: ~Supraat 70).
liberty 1. That the offender is a fublic officer or employee; b. The material possibility for the fis9t11"tomake
(REYES, Book 2. That he has Qetained a person for some legal the investigation and file in. time' . the .,,.,;ART'.1,25,.,A,PPLIESONLY TO ARRESTS
ground; and . necessary information; and··· .· ·
Two, p. 743) .. 6
c. The government offic~• h.ours '(Soria . v,
MADI;,WIT,HQ.~TA WARRANT
3. That he E. ails to deliver such person to the
Desierto, G.R. Nos. 15352~-25,,Januaty31, lf"the arf'e$twas made pursuant to a warrant, the
. proper jµdicial authorJtieswithin:
ARBITRARY DETENTION AND 2005). prisoner: is a,lready ~eemed in the custody of the
'a; Twelve (12) hrs. for offenses or crimes
court and the officer. has only to deliver him without
_ UNLAWFUL ARREST, DISTINGUISHED punishable by light penalties, or their
PERIOD IS THREE (3) l:>AyS.FORlHOSE unnl3ce§Sary ~~y tb \he nearest police station or
equivalent; or
jail (RUl.£S Of=CQURt. Rule113, Sec. 3).
b. Eiqht~en (18) hrs. for offenses or crimes CHARGED WITH OR SUSPECTED OF • i! •'.! ,.

\
pµnispable by correctional penalties, or their THE CRIME OF .TERRORl~M OR
, '

Moreov,er,t.he p~rsdtr11ilrested pursuant to a warrant

equivalent; or
c. Thirtfsix (;36) hrs. for offenses or crimes
CONSPIRACY TO C0'1,1MIT:\TEl;ifi0RJ,$M _Cijn pe'®tained[lndefinjJely, until his case is decided
The provisions of Art. 125 oflhe ~P~. to thecontrary by the,qourt or}he·'f)TJ~s a bail. The reason is that
..,Jtmisnablij:by afflictive penalties, or their
there: is· alreapy a "b;>mplaint or information filed
equ!Vak:Jnt(REYES, Book Two, supra at 65) . notwithstanding, any police. Or law enforcement
personnel, who, having been duly ;f;luthdr'i:zeci·1n. agc1lnsthim/ making' his delivery to the court
writing by the Anti-Terrorism··'.r.coundl<..has ·taken ... ·· unnecessary (REYf;S, .Book Two, supra at 66).
.· ......."Delivering the person to the proper judicial
. •••..; i;' fn, •'iJufllorities" custody of a person charged with<>rsuspect~ci of the··• .·.
· ·' ·.,·· The•··
phrase does not consist in a physical crime of terrorism or the crime o,t corspifaoy. to .VVhere a jlid§e is not available, the arresting officer
delivery but making an accusation or charge or commit terrorism shall deliver said charged·or fo release a person detained, if the
··'.is'.:9ut~:-b,8LIIJJ.i
filing of an information . against the person suspected person to the proper judicial ~uthOrity .·tnaximur:n !'fours for detention provided under Art.
within a period of three (3) days counted from ,the · 125,u(the Revised Penal Code have already
arrested with the corresponding court or judge,
moment the said charged ·or suspected person has • · ·expired. Failure to cause the release may result in
whereby the latter acquires jurisdiction to issue
been apprehended or arrested, detained, and taken an offense under Art.125 (Albior v. Auguis, A.M. P-
an order of release or of commitment of the
into custody by the said police, or law enforcement 01-1472; June 26, 2003).
No intention to bring Purpose of arrest is to prisoner (Lava v. Gonzales, G.R. No. L-23048,
July 31, 1964). personnel (R.A. No. 9372, Sec. 18).
the offended to proper bring the victim to proper ARBITRARY DETENTION AND DELAY
authorities but merely authority and file a In the event of an actual or imminent terrorist attack,
to detain him charge Proper Judicial Authorities IN THE DELIVERY OF DETAINED
It refers to the courts of justice or judges of said suspects may not be detained for more than three PERSONS TO PROPER JUDICIAL
courts vested with judicial power to order the (3) days without the written approval of a municipal,
As to Manner of Qommission AUTHORITY, DISTINGUISHED
temporary detention or confinement of a person city, provincial or regional official of a Human Rights
Although authorized, Private person: arrests a charged with having committed a public offense Commission or judge of the municipal, regional trial
detains a person person without (Agbay v. Deputy Ombudsman, G.R. No. court, the Sandiganbayan or a justice of the Court of
without legal ground reasonable ground, and 134503, July 2, 1999). Appeals nearest the place of the arrest (R.A. No.
the purpose is to deliver 9372, Sec. 19). ·
the person arrested to the NOTE: The filing of a complaint with the
proper authorities Municipal Trial Court constitutes delivery to a WAIVER OF T.HE PROVISIONS OF
proper judicial authority although jurisdiction is ARTICLE 125
with the Regional Trial Court because the intent Before the complaint or information is filed, the No • warrant of No warrant of arrest, but with
of the law is satisfied considering that the person arrested may ask for a preliminary arrest. legal ground.
detained person is informed of the crime

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San Beda UniversityCOiiegeof Law - RGCTBar Operations Center
The detention· is The detention is legal in the
illegal from the beginning, but the illegality
beginning. of the detention starts from
the expiration of any of the
periods of time specified in
Art. 125, without the person
detained having been
delivered to the proper
judiCial authority.
(BOADO, supra at 420; REYES, Book Two, supra at
67).
ARTICLE 126
DELA YING RELEASE
PUNISHABLE ACTS: (PSP)
1. By delaying the ferformance of a judicial or
executive order for the release of a prisoner;
2. By unduly delaying the §ervice of the notice of
such order to said prisoner; and
3. By unduly delaying the froceedings uponany
petition for the liberation of such · person ·
(REYES, Book Two, supra at 75),
ELEMENTS: (PJ-SPP)
1. That the offender is a fublic officer or employee;
2. That there is a Judicial or executive order for the
release of a prisoner or detention prisoner, or
that there is a proceeding upon a petition for the
liberation of such person; and · g. Maltreating a member/sofa person's family;
3. That the offender without good reason delays
either:
a. The §.ervice of the notice of such order to
the prisoner;
b. The ferformance of such judicial or
executive order for the release of the
prisoner; or
c. The froceedings upon a petition for the
release of such person (Id.).
NOTE: Most likely to be violated by wardens or
jailers (Id.).
The offended parties may be either convicted or
detention prisoners (REGALADO, supra at 384).
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REPUBLIC ACT NO. 9745
ANTI-TORTURE ACT OF 2009
(Refer to SPL part for a detailed discussion. See
page 450)
A~proved on: November 10, 2009
TORTURE
It refers to an act by which severe pain or sufferir-ig,
whether physical or mental, is intentionally inflicted
on a person for such purposes as:
1. Obtaining from him/her or a third person
information or a confession;
2. Punishing him/her for an act he/she or a third
person has committed or is suspected of having
committed; or
3. Intimidating or coercing him/her or a third
person; or for any reason based on
discrimination of any kind, when such pain or
suffering is inflicted by or at the instigation of or
with. the consent or acquiescence of a person in
authority or agent of a person in authority (Sec.
3, Par. 9J;_ .
Acts of Torture, which shall include, but not
· limited to th~ following (Sec. 4):
1 . Physfoal torture
is a fo.rm of.treatment or punishmentinflicted
by;; ~.. l,dhority or agent of a person in
au ·· ;( another in his/her custody that
causes severe pain, exhaustion, disability or
, ...... dysfunction of one or more parts of the body,
• >. i: "i"Gras:
: . .:r.·a: :Systematic beating, head banging,
punching, kicking, striking with truncheon or
rifle butt or other similar objects, and
jumping on the stomach;
b. Food deprivation or forcible feeding with
spoiled food, animal or human excreta, and
other stuff or substances not normally eaten;
c. Electric shock;
d. Cigarette burning; burning by electrically
heated rods, hot oil, acid; by the rubbing of
pepper or other chemical substances on
mucous membranes, or acids or spices
directly on the wound(s);
e. The submersion of the head in water or .
water polluted with excrement, urine, vomit,
and/or blood until the brink of suffocation;
f. Being tied or forced to assume fixed and
stressful bodily position;
g. Rape and sexual abuse, including the
insertion of foreign objects into the sex
organ or rectum, or electrical torture of the
genitals;
h. Mutilation or amputation of the essential
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parts of the body such as the genitalia, ear,
tongue, etc.;
i. Dental torture or the forced extraction of the
teeth;
j. Pulling out of fingernails;
k. Harmful exposure to the elements such as
sunlight and extreme cold;
I. The use of materials like plastic bag and
others placed over the head to the point of
asphyxiation;
m. The use of psychoactive drugs to change
the perception, memory, alertness, or will of
a person, such as administration of drugs to
induce confession and/or reduce mental
competency; use of drugs to induce extreme
pain or certain symptoms of a disease; and
n. Other analogous acts of physical torture
(Sec. 4, Par. a).
2. Mental or Psychological Torture
acts committed by a person in authority or
agent of a person in authority which are
calculated to affect or confuse the mind Bfld/or
undermine a person's dignity and morale, such
as:
a. Blindfolding;
b. Threatening a person.(s}' or his/tier
relative(s) with bodily harm, execution or
other wrongful acts;
c. Confinement in so(itary cells or secret
detention places;
d. Prolonged interrogation;
e. Preparing a prisoner fora "showtrial";public
display or public humjliation of a detainee or
prisoner;
f. Causing unscheduled transfer of a person
deprived of liberty . from one 'place to
another, creating the belief that he/she shall
be summarily executed;
h. Causing the torture sessions to be
witnessed by the person's family, relatives
or any. third party;
i. Denial of sleep/rest;
j. Shame infliction such as stripping the
person naked, parading him/her in public
places, shaving the victim's head or putting
marks on his/her body against his/her will;'
k. Deliberately prohibiting the victim to
Communicate with any member of his/her
family; and
I. Other analogous acts of
mental/psychological torture (Sec. 4, Par.
b).
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CRIMINALLAW II
Criminal Law
ARTICLE 127
EXPULSION
PUNISHABLE ACTS:
1. By expelling a person from the Philippines; or
2. By compelling a person to change his residence.
NOTE: The first punishable act, as provided above,
may only be committed against an alien on grounds
provided by law and only upon observance of due
process in deportation proceedings while Par. 2 may
be com.mitted either against aliens or Filipino citizens
(AMURAO, Book Two, Part One, supra at 111).
The President shall have the power to deport aliens
subject to the requirements of due process (E. 0. No.
292, Sec. 3).
ELEMENTS: (PEN)
1. That the offender is a fublic officer br employee;
2. That he _sxpels any person from the Philippines,
or cc.impels a person to change his residence;
and
3. That the offend~r is Not auJhorized to do so by
law (REY.ES, Book Two, supra at 76).
Only a court, by a final judgment, can compel a
person to change his residence. Thu·s, one may be
legally compelled to c,hange his residence in:
1. Ejectment pfoceedings;
2. Expropriation f!rPC~dings;
3. Destierro (Id.);· ·
4. ·C<;1se'of a conviction for the commission of a
crime involving deprivation of liberty;
5. Grant_of Probation under the Probation Law of
1976 where change of residence is one of the
tc;m9itions. therein imposed by the court (P.O.
968. Sec. 10, Par. k);
6, Case of release on parole of a prisoner under
the Indeterminate Sentence Law where one of
the conditions of his release is a change of.
residence (Act No. 4103, Sec. 6); and
7. Grant of a temporary or permanent protection
under R.A. No. 9262 (Anti-Violence Against
Women and Their Children Act) ·where change
of residence is one of the conditions imposed
(R.A No. 9262, Sec. 8, Par. c).
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MEM:Q~YAID
San Beda UniversityCollege of law - RGCTBar Operations Center
SECTION TWO:
VIOLATION OF DOMICILE
ARTICLE 128
VIOLATION OF DOMICILE
PUNISHABLE ACTS:
1. By entering any dwelling against the will
of the owner thereof; · the implied objection of the inhabitant
Dwelling
It must be a building or structure, exclusively
used for rest and comfort (REYES, Book One,
supra at 367).
Against the will of owner
To constitute a violation of domicile, the
entrance by the public officer or employee must
be against the will of the owner of the dwelling
which presupposes opposition or prohibition by
the owner. whether express or implied, and not
merely the absence of consent (REYES, Book
Two, supra at 78). If the entrance by the public
officer or employee is only without the consent
of the owner of the dwelling, the crime· is not
committed (Id.).
Lack of consent would not suffice as the law
requires that the offender's entry must be over
the owner's objection (REGALADO, supra at
386).
NOTE: The phrase "against the will" denotesthe
prohibition of the owner which may be express
or implied as whether the door is closed even
though it' is not locked (BOADO, supra at 433).
2. By searching papers or other effects
found therein without the
consent of such owner; and
Search
It refers to the examination of a person's body,
property or other area that the person would
reasonably be expected to. consider as private,
conducted by a law enforcement officer for the
purpose of finding evidence of a crime (Black's
Law Dictionary (1999), p. 1351). Thus, the mere
fact of "looking at" cannot strictly be considered
as the search of papers and other effects
(REYES, Book Two, supra at 79).
Silence of the owner of the dwelling before and
during the search, without search warrant, by a
public officer, may show implied waiver (Id.).
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3. By refusing to leave the premises, after
having surreptitiously entered said
dwelling and after having been required
to leave the same (REYES, Book Two, supra
at 77).
NOTE: What is punished is the refusal to leave,
the entry having been made surreptitiously. It is
believed, however, that if the surreptitious entry
had been made through an opening not
intended for that purpose, the offender would be
liable under the first mode since it is entry over
(REGALADO, supra at 386).
Although the Code speaks of the owner of the
premises, it would be sufficient if the inhabitant
is the lawful occupant using the premises as his
dwelling, although he is not the owner thereof
(Id.).
ELEMENTS: (PN-ESR)
1. That the offender is a fublic officer or
empJoyee;
·2. 'That he is Not authorized by-judicial order to
enter the dwelling and/or to make a search
for papers or other effects; and
3. T~rthe':.-0ffender shall:
-a/ §,ter.any dwelling against the will of the
owner thereof;
.. ;b",.. .•~pers or other effects found
\i:.,:;;:1f~lfiWithout the previous consent of
· ·::J1th owner; or
c. Refuse to leave the premises, after
having surreptitiously entered said
;dwelling and after having been required
to le~ve the same (REYES, Book Two,
supra at 77).
Not authorized by judicial order
A public officer or employee is not authorized by
judicial order when he is not arm~d with a search
previous warrant duly issued by the court (Id. at 78).
If the offender is a private individual (RPG, Art.
280), or if the public officer is one whose function
does not include the duty to effect search and
seizure, the crime committed is trespass to
dwelling (BOADO, supra at 433).
QUALIFYING CIRCUMSTANCES:
1. If committed at nighttime; or
2. If any papers or effects not constituting evidence
of a crime are not returned immediately after a
search is made by the offender (REYES, Book
Two, supra at 80).
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ARTICLE 129
SEARCH WARRANTS MALICIOUSLY
OBTAINED AND ABUSE IN THE
SERVICE OF THOSE LEGALLY
OBTAINED
PUNISHABLE ACTS: (SPPJ-EPLE)
1. Procuring a §.earch warrant without just
cause; or
ELEMENTS:
a. That the offender is a fublic officer or
employee;
b. That he frocures a search warrant; and
c. That there is no Just cause (REYES, Book
Two, supra at 81).
2. .§xceeding his authority or by using
unnecessary severity in executing a
search warrant legally procured.
ELEMENTS:
a. That the •offender is a fublrc ;officer or
employee;
b. That he has begally procured a search
warrant; and
c. That he gxceeds his authority or uses
unnecessary severity in executing the same
(REYES, Book Two, supta at 86). ·
NOTE: If in searching a heuse, the put.meofficer
destroys furniture therein without any
justification at all, he is guilty under Art. 129, as
having used unnecessary severity in executing
the search warrant (REYES, Book Two, supra at
87).
Unnecessary Severity, Not Present
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 (RULES
OF COURT, Rule 126, Sec. 7).
SEARCH WARRANT
It is an order in writing issued in the name of the
People of the Philippines, signed by the judge and
directed to a peace officer, commanding him to
search for personal property described therein and
bring it before the court (RULES OF COURT, Rule
126, Sec. 1).
REQUISITES: (PJO2 P)
1. It must be issued upon frobable cause;
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CRIMINALLAW II
Criminal Law
Probable cause
It is defined 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 besearched. A finding of probable
cause needs only to rest on evidence showing
that, more likely than not, a crime has been
committed and that it was committed by the
acc;;used.Probable cause demands more than
bare suspicion; it requires less than evidence
which would justify conviction (Petron LPG
Dealers Association v. Ang, G.R. No. 199371,
February 3, 2016).
. 2. The probable cause must be determined by the
Judge himself and not by the ~applicant or any
other person;
3. In the determination of probable cause, the
judge must examine, under Oath or affirmation,
the cornplainant and such witnesses as the latter
.. may .produce;
4. It soould be issued in connection with Qne (1)
specific offense; and
5. The warrant issued must farticularly describe
the place'to be searched and persons or things
to be seized {RULES OF COURT, Rule 126,
Sec. 4).
If is elemental that in order to be valid, a search
warrant must particularly describe the place to be
searched and the. things to be seized. The
constitutional requirement of reasonable particularity
-0fdescription of the things to be seized is primarily ·
meant to enable the law enforcers serving the
warrant to:
1., Rec1dilyidentify the properties to be seized and
thu_sprevent them from seizing the wrong items;
anq
2. Leave said peace officers with no discretion
regarding the articles to be seized and thus
prevent unreasonable searches and seizures
(People v. Pastrana, G.R. No. 196045, February
21, 2018). .
A search warrant may be said to particularly
describe the things to be seized:
1. When the description therein is as specific as the
circumstances will ordinarily allow; or
2. ·when the description expresses a conclusion of
fact - not of law by which the warrant officer
may be guided in making the search and
seizure;and
3. When the things to be described are limited to
those which bear direct relation to the offenses
for which the warrant is being issued (Dimal v.
People, G.R. No. 216922, April 18, 2018).
A search warrant shall be valid for ten (10) days from
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its date. Thereafter, it shall be void (RULES OF
COURT, Rule 126, Sec. 10).
TEST OF LACK OF JUST CAU,SE
Whether the affidavit filed in support of the
application for search warrant has been drawn in
such a manner that perjury could be charged
thereon and affiant can be held liable for damages
caused (People v. Sy Juco, G.R. No. L-41957,
August 28, 1937).
If the search warrant is secured through a false
affidavit, the crime punished by this article cannot be
complexed but will be a separate crime from perjury
since the penalty herein provided shall be "in
addition to" the penalty of perjury (REGALADO,
supra at 388).
WARRANTLESS SEARCHES, WHEN VALID
(SBC-SWIM PAVE):
1. Presence of a genuine reason to "§top-and-
frisk" in the light of the police officer's experience
and surrounding conditions to warrant a belief
that the person detained has weapons'
concealed (Malacat v. Court of Appeals, G.R.
No. 123595, December 12, 1997);
2. Inspection of §uildings and other premjses for
the enforcement of fire, sanitary and building
regulations (Valeroso v. Court of Appeals, G.R.
No. 164815, September 3, 2009);
3. Visual search at ,g_heckpoints (Valmonte v. de
Villa, G.R. No. 83988, September 29, 1989);
4. Conduct of "aerial target zoning" and "§aturation
drive" in the exercise of military powers of the
President (Guanzon v. de Villa, G.R. Mo. 80508,
January 30, 1990);
5. Voluntarily Waiver of right (People v. Malasugui,
G.R. No. 44335, July 30, 1936);
6. In flagrante delicto arrest as an !ncident to a
lawful arrest, provided search is
contemporaneous to arrest . and within
permissible area of search (RULES OF COURT,
Rule 126, Sec. 13);
NOTE: A valid arrest must precede the search;
the process cannot be reversed (People v. Chua
Ho San, G.R. No. 128222, June 17, 1999).
It may be made only within the p~rmissible area
of search, or the place within the immediate
control of the person being arrested (Espana v.
Court of Appeals, G.R. No. 120431, April 1,
1998).
The phrase "within the area of his immediate
control" means the area from within which he
might gain possession of a weapon (Valeroso v.
Court of Appeals, G.R. No. 164815, September
3, 2009).
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CRIMINAL LAW II
Criminal Law
7. Searches of Moving vehicles or automobiles at two witnesses residing in the same locality are
borders or constructive borders for violation of not present (REYES, Book Two, supra at 87).
immigration and smuggling laws. Custom SECTION THREE:
searches however are not available in dwelling NOTE: The witnesses must be of legal age and the PROHIBITION, INTERRUPTION,
places (Papa v. Mago, G.R. No. L-27360, locality refers to the same barangay (RULES OF AND DISSOLUTION OF
February 28, 1968); COURT, Rule 126, Sec. 8).
PEACEFUL MEETINGS
8. flain view of prohibited articles (Chia v. Acting
Collector of Customs, G.R. No. L-43810, The Rules of Court clearly and explicitly establishes
September 26, 1989); a hierarchy among the witnesses in whose presence
the search of the premises must be conducted._
ARTICLE 131
. ELEMENTS (PIAJ): Thus, Section 8, Rule 126 provides that the search
1. There must be a friar valid intrusion based should be witnessed by ''two witnesses of sufficient PROHIBI1:ION, INTERRUPTION, &
on the valid warrantless arrest in which the age and discretion residing in the same locality" only DISSOLUTION OF PEACEFUL
police are legally present in the pursuit of in the absence of either the lawful occupant of the MEETINGS
their official duties; premises or any member of his family (Bulauitan v.
2. The evidence was !nadvertently discovered People, G.R. No. 218891, September 19, 2016).
COMMON ELEMENTS: (PPAPA)
by the police who have the right to be where
they are; Search in the presence of witnesses specified by the 1. That the offender is a f.ublic officer or employee;
law is mandatory to ensure regularity in the and
3. The evidence must be immediately Apparent
execution of the search warrant (Dabon v. People, 2. That he f_erforms any of the acts enumerated in·
(or the illegality is apparent); and
4. The plain view Justified the mere seizure of G.R. No. 208775, January 22, 2018). violation of the right to Association and f_eaceful
Assembly (REYES, Book Two, supra at 90).
evidence without further search (People v.
Tudtud, G.R. No. 144037, September 26, NOTE: This Article does not apply to searches of
2003). vehicles or other means of transportation, because PUNI.SHABLE ACTS: (MAP)
the searches are not made in the dwelling (REYES, 1. Prohibiting, interrupting, or dissolving without
· "8(),Tt;:'W:here the object seized was inside a Book Two, supra at 88). legal ground the holding of a peaceful Meeting
clo~etf package, the object is not in plain view. or by dissolving the same;
However,;if the package proclaims its contents, VIOLATION OF DOMICILE, SEARCH
then the contents are in plain view and may be ·WARRANTS MALICIOUSLY OBTAINED REQUISITES:
seizeq (Caballes v. Court of Appeals, G.R. No. 1. The n;ieeting must be peaceful; and
AND ABUSE IN THE SERVICE OF 2. There is rio regal ground for prohibiting, or
.136292,January 15, 2002).
THOSE LEGALLY OBTAINED, AND interrupting or dissolving that meeting
9. S-gltes ~"Altdraft and Vessel for violation of SEARCHING DOMICILE WITHOUT
fishel'?y:;:~f'iition and customs laws (Roldan WITNESSES, DISTINGUISHED 2. Hindering any person from joining any lawful
v. Arca, G.R. No. L-25434, July 25, 1975); and Association or from attending any of its
meetings; or
{)N: The vessel can be quickly moved out 3. Prohibiting or hindering any person from
'lBcality or jurisdiction in which the search addressing, either alone or together with others,
must be sought before the warrant _could be _ any f_etition to the authorities for the correction
secured (Hizon v. Court of Appeals, G.R. of abuses or redress of grievances (Id.).
No.119619, December 13, 1996).
NOTE: The right to freedom of speech and to
10. Doctrine of 5.xigent circumstances- under such peacefully assemble, though guaranteed by our
urgency and exigency of the .moment where a Constitution, is not absolute, for it may be regulated
search warrant should be lawfully dispensed in order that it may not be "injurious to the right of the
There is The public officer There was abuse
with (People v. De Gracia, G.R. Nos. 102009, community or society," and this power may be
no is armed with a in the
July 6, 1994). exercised under the "police power" of the state,
warrant. warrant but such implementation of
which is the power to prescribe regulations to
was maliciously a valid warrant.
ARTICLE 130 promote the good order or safety and general
obtained.
SEARCHING DOMICILE WITHOUT welfare of the people (Id. at 91).
(BOADO, supra at 434).
WITNESSES
OFFENDER IN ART. 131 AND IN ART.
135 OF THE RPC, DISTINGUISHED
ELEMENTS: (PASO)
1. That the offender is a fublic officer or employee; Offender Crime Committed
2. That he is Armed with a search warrant legally If offender is a public Violation of Art. 131,
procured;
officer, who is not a RPC.
3. That he §.earches the domicile, papers or other participant (stranger)
belongings of any person; and
4. That the Owner, or any member of his family or
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If the offender is a Tumultuous
private individual who is disturbance under Art.
not a participant 153, RPC
(stranger)
(REYES, Book Two, supra at 192).
NOTE: Interrupting and dissolving the me.etingof the
municipal council by a public officer is a crime
against a legislative body, which is in violation of
Sec. 1 of Act No. 1755 (similarly punished under
Arts.143and 144and notunderArt.131 ofthe RPC)
(People v. Alipit, G.R. No. 18853, August 22, 1922).
SECTION FOUR:
CRIMES AGAINST RELIGIOUS
WORSHIP
ARTICLE 132
INTERRUPTION OF RELIGIOUS
WORSHIP
ELEMENTS: (PReP)
1. That the offender is a Public officer or employee;
2. That Religious ceremonies or manifestations of
any religion are about to take place or c;1regoing
on; and . faithful
3. That the offender Prevents or disturbs the same -
(REYES, Book Two, supra at 95}.
NOTE: Qualified by violence or threats (RPG, Art.
132, Par. 2).
There must actually be a religious ceremony being
conducted on that occasion, either by itself or in
conjunction with some other activity of the religious
denomination. If the offense was committed only in
a meeting or rally of a sect, it would be punishable
under Art. 131 (People v. Reyes, et al., C.A.-G.R.
No. 13633-R, July 27, 1955).
The right to peaceably assemble is not absolute and
may be regulated that it sh~II not be injurious to the
equal enjoyment of others having equal rights, nor
injurious to the rights of the community or society,
through the State's exercise of police power
(Diocese of Bacolod v. _COMELEC, G.R. No.
205728, January 21, 2015).
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ARTICLE 133
OFFENDING THE RELIGIOUS
FEELINGS
ELEMENTS: (PDA-NO)
1. That the acts complained of were performed:
a. In a flace devoted to religious worship; or
NOTE: In the phrase "in a place devoted to
religious worship," it is not necessary that
there is a religious ceremony going on.
b. Quring the celebration of any religious
ceremony; and
2. That the Acts must be Notoriously Offensive to
the feelings of the faithful (REYES, Book Two,
supra at 96-97).
Religious ceremonies
Religious acts performed outside of a church, such
as processions and special prayers for burying dead
persons (Id. at 97).
NOTE; To b4t' held liable for the crime of offending
the religious feelings, the offensive acts must be
committed either in a place devoted to religious
worship or during the celebration of any religious
ceremony (II CAMPANILLA, Reviewer, sµpra at 90).
Acts notoriously offensive to the feelings of the
..
The acts must be' directed against religious practice
or dogma or ritual for the purpose of ridicule, as
mocking or scoffing at or attempting to damage an
• __cbjact Of religious veneration. It must be abusive,
insulting and obnoxious (People v. Baes, G.R. No.
46000, May 25, 1939).
Whether or not the acts committed are notoriously
offensive are viewed from the complainant's
standpoint and not from that of the offender (People
v. Baes, G.R. No. 46000, May 25, 1939).
There must be deliberate intent to hurt the feelings
of the faithful (REYES, Book Two,..supra at 98).
If the act is directed to the religious belief itself and
the act is notoriously offensive, the crime is offending
the religious feelings. Otherwise, it is only unjust
vexation. Where the act is not directed to the belief
itself and the meeting is interrupted by a pubic
officer, the violation is against Art. 132 (BOADO,
supra at 438).
It may be committed by a public officer or a private
individual (REGALADO, supra at 392). This crime is
an exception in Title II where the offenders are public
officers for it allows the prosecution of a private
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