WARRANTLESS ARREST & SEARCH: A POLICE PRIMER

(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)