MALVERSATION REPUBLIC ACT NO.
1060 duly authorized officer, shall be prima facie evidence that he has put
REPUBLIC ACT NO. 1060 - AN ACT INCREASING THE PENALTY
FOR THE CRIME OF MALVERSATION OF PUBLIC FUNDS OR
PROPERTY, BY AMENDING ARTICLE TWO HUNDRED
SEVENTEEN OF THE REVISED PENAL CODE
Section 1. Article two hundred seventeen of the Revised Penal
Code is amended to read as follows:
"Art. 217. Malversation of public funds or property. — Presumption
of malversation. — Any public officer who, by reason of the duties of
his office, is accountable for public funds or property, shall appropriate
the same, or shall take or misappropriate shall consent, or through
abandonment or negligence, shall permit any other person to take
such public funds or property, wholly or partially, or shall otherwise be
guilty of the misappropriation or malversation of such funds or
property, shall suffer:
"1. The penalty of prision correccional in its medium and maximum
periods, if the amount involved in the misappropriation or malversation
does not exceed two hundred pesos.cralaw
"2. The penalty of prision mayor in its minimum and medium
periods, if the amount involved is more than two hundred pesos but
does not exceed six thousand pesos.
"3. The penalty of prision mayor in its maximum period to reclusion
temporal in its minimum period, if the amount involved is more than
six thousand pesos but is less than twelve thousand pesos.
"4. The penalty of reclusion temporal in its medium and maximum
periods, if the amount involved is more than twelve thousand pesos
but is less than twenty-two thousand pesos. If the amount exceeds
the latter, the penalty shall be reclusion temporal in its maximum
period to reclusion perpetua.cralaw
"In all cases, persons guilty of malversation shall also suffer the
penalty of perpetual special disqualification and a fine equal to the
amount of the funds malversed or equal to the total value of the
property embezzled.cralaw
"The failure of a public officer to have duly forthcoming any public
funds or property with which he is chargeable, upon demand by any
such missing funds or property to personal uses."
Sec. 2. This Act shall take effect upon its approval.cralaw
Approved: June 12, 1954
Malversation through negligence
BY PERSIDA ACOSTA JANUARY 16, 2018
Dear PAO,
My friend was recently hired as a payroll employee of a government
agency. She was asked to deposit a certain amount for the agency.
Since she knew the cashier of the bank that day as they were college
classmates, she left the money with the cashier. As she was about to
go out of the bank to buy food, the bank manager who saw what she
did called her attention and asked to wait for the completion of her
transaction before leaving the bank premises. Being new, she did not
think that there was anything wrong with what she did. The manager
told her that she can be held liable for malversation of public funds if
she is shown to be remiss in her job. Is that true even if she did not
take any money for her personal use? Please advise me on this
matter.
Ms. Libra
Dear Ms. Libra,
Malversation of public funds is a crime punishable under our law. It is
provided under Article 217 of the Revised Penal Code, as recently
amended by Republic Act (RA) 10951t:
“Any public officer who, by reason of the duties of his office, is
accountable for public funds or property, shall appropriate the same or
shall take or misappropriate or shall consent, through abandonment or
negligence, shall permit any other person to take such public funds or
property, wholly or partially, or shall otherwise be guilty of the
misappropriation or malversation of such funds or property x x x
xxx
The failure of a public officer to have duly forthcoming any public
funds or property with which he is chargeable, upon demand by any
duly authorized officer, shall be prima facie evidence that he has put
such missing funds or property to personal uses.”
Taking into account the foregoing legal provision, the following
elements must be present in order for the crime of malversation to
exist:(a) The offender is a public officer; (b) He had the custody or
control of funds or property by reason of the duties of his office; (c)
Those funds or property were public funds or property for which he
was accountable; (d) He appropriated, took, misappropriated or
consented or, through abandonment or negligence, permitted another
person to take them (The Revised Penal Code, Criminal Law, Book II,
Justice Luis Reyes, Sixteenth Edition, 2006, p. 400).
Corollary, for your friend to be held liable for the crime of malversation
of public funds, we believe that it should not only be shown that she
was remiss in her job. Rather, it must be clearly shown that she is a
public officer who, by reason of the duties of her position, has/had
custody or control of the subject public funds and, even if there is no
proof that she misappropriated such funds for her personal uses that
she consented or, through negligence, permitted another person to
take such public funds. If she does not have such public funds in her
possession when the same is demanded from her and she cannot
offer a satisfactory explanation, then she is presumed to have placed
such missing funds to her personal use pursuant to the last paragraph
of Article 217 of the above-mentioned law.
The Supreme Court through Associate Justice Diosdado Peralta, in its
recent ruling in Hernan vs. Sandiganbayan (G. R. No. 217874,
December 5, 2017), elucidated:
“The court quotes, with approval, the trial court’s ruling, viz.:
Even if the claim of Hernan, i.e., that she actually left the amount of
P11,300.00 and the corresponding deposit slip with the Bank Teller
Ngaosi and she came back to retrieve the deposit slip later, is to be
believed and then it came out that the said P11,300.00 was not
credited to the account of DoTC [Department of Transportation and
Communications] with the Land Bank and was in fact missing, still
accused Hernan should be convicted of malversation because in this
latter situation she permits through inexcusable negligence another
person to take the money. And this is still malversation under Article
217.
Said ruling was, in fact, duly reiterated by the Sandiganbayan in its
decision, thus:
x x x As consistently ruled by jurisprudence, a public officer may be
held liable for malversation even if he does not use public property or
funds under his custody for his personal benefit, but consents to the
taking thereof by another person, or, through abandonment or
negligence, permitted such taking. The accused, by her negligence,
simply created the opportunity for the misappropriation. Even her
justification that her deposits, which were not machine-validated, were
nonetheless acknowledged by the bank cannot fortify her defense. On
the contrary, it all the more emphasizes her propensity for negligence
each time that she accepted deposit slips, which were not machine-
validated, her only proof of receipt of her deposits” (Emphasis
supplied).
We hope that we were able to answer your queries. Please be
reminded that this advice is based solely on the facts you have
narrated and our appreciation of the same. Our opinion may vary
when other facts are changed or elaborated.
The elements of malversation of public funds are:
that the offender is a public officer;
that he had the custody or control of funds or property by reason of
the duties of his office;
that those funds or property were public funds or property for which he
was accountable; and
that he appropriated, took, misappropriated or consented or, through
abandonment or negligence, permitted another person to take
them.49
There is no dispute on the existence of the first three elements;
petitioner admitted having received the cash advances for which he is
accountable. As to the element of misappropriation, indeed petitioner
failed to rebut the legal presumption that he had misappropriated the
said public funds to his personal use, notwithstanding his
unsubstantiated claim that he has in his possession liquidation
documents. The SB therefore committed neither reversible error nor
grave abuse of discretion in convicting the petitioner of malversation
for failure to explain or account for his cash shortage by any
liquidation or supporting documents. As this Court similarly ruled in
one case50:
In the crime of malversation, all that is necessary for conviction is
sufficient proof that the accountable officer had received public funds,
that he did not have them in his possession when demand therefor
was made, and that he could not satisfactorily explain his failure to do
so. Direct evidence of personal misappropriation by the accused is
hardly necessary as long as the accused cannot explain satisfactorily
the shortage in his accounts.
In convicting petitioner, the Sandiganbayan cites the presumption in
Article 217, supra, of the Revised Penal Code, i.e., the failure of a
public officer to have duly forthcoming any public funds or property
with which he is chargeable, upon demand by any duly authorized
officer, is prima facie evidence that he has put such missing fund or
property to personal uses. The presumption is, of course, rebuttable.
Accordingly, if the accused is able to present adequate evidence that
can nullify any likelihood that he had put the funds or property to
personal use, then that presumption would be at an end and the prima
facie case is effectively negated. This Court has repeatedly said that
when the absence of funds is not due to the personal use thereof by
the accused, the presumption is completely destroyed; in fact, the
presumption is never deemed to have existed at all. In this case,
however, petitioner failed to overcome this prima facie evidence of
guilt.
See - 211543.pdf
"x x x.
Malversation may be committed by appropriating public funds or
property; by taking or misappropriating the same; by consenting, or
through abandonment or negligence, by permitting any other person
to take such public funds or property; or by being otherwise guilty of
the misappropriation or malversation of such funds or property. 29 For
a prosecution of the crime to prosper, concurrence of the following
elements must be satisfactorily proved: (a) the offender is a public
officer, (b) he has custody or control of the funds or property by
reason of the duties of his office, ( c) the funds or property are public
funds or property for which he is accountable, and, most importantly,
(d) he has appropriated, taken, misappropriated or consented, or,
through abandonment or negligence, permitted another person to take
them. Article 217 of the Revised Penal Code pertinently provides as
follows: x x x."
ARTICLE 217. Malversation of public funds or property - Presumption
of malversation. - Any public officer who, by reason of the duties of his
office, is accountable for public funds or property, shall appropriate
the same, or shall take or misappropriate or shall consent, or through
abandonment or negligence, shall permit any other person to take
such public funds or property, wholly or partially, or shall otherwise be
guilty of the misappropriation or malversation of such funds or
property, shall suffer: xx xx 4.
The penalty of reclusion temporal in its medium and maximum
periods, if the amount involved is more than 12,000 pesos but is less
than 22,000 pesos. If the amount exceeds the latter, the penalty shall
be reclusion temporal in its maximum period to reclusion perpetua.
In all cases, persons guilty of malversation shall also suffer the
penalty of perpetual special disqualification and a fine equal to the
amount of the funds malversed or equal to the total value of the
property embezzled.
The failure of a public officer to have duly forthcoming any public
funds or property with which he is chargeable, upon demand by any
duly authorized officer, shall be prima facie evidence that he has put
such missing funds or property to personal uses.
WARRANTLESS ARREST Published 07 December 2018, The Daily
Tribune
It is not uncommon to either read or hear that persons were arrested
without any court-issued arrest warrant. These news reports would
normally generate questions such as, “Is this legal?” “Do our laws
permit warrantless arrest of persons?” The answer to this question is
a “yes” but subject to well-defined limitations and requisites.
Arrest is “the taking of a person into custody in order that he may be
bound to answer for the commission of an offense.” (Section 1, Rule
113, Revised Rules on Criminal Procedure). As a rule, before a
person may be arrested, courts must first issue a warrant of arrest;
otherwise, an arrest will be considered as illegal. However, awaiting
the issuance of a warrant of arrest sometimes renders ineffective the
arrest of the perpetrators of criminal offenses. Thus, our laws
enumerate permissible instances authorizing arrest of persons without
any warrant issued by our courts.
Section 5, Rule 113 of the Revised Rules on Criminal Procedure
provides that “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.”
The first situation refers to “in flagrante delicto” arrest. Under this rule,
it must be shown that: (a) the person to be arrested must execute an
overt act indicating he has just committed, is actually committing, or is
attempting to commit a crime; and (b) such overt act is done in the
presence or within the view of the arresting officer (Valdez vs. People,
G.R. No. 170180, 23 November 2007). Thus, if a person is caught in
the act of stealing money from a sari-sari store, he may be
immediately arrested without any warrant.
The second situation is often described as the “hot pursuit” arrest. For
this rule to apply, it is required that: (a) an offense has just been
committed; and (b), the arresting officer has probable cause to believe
based on personal knowledge of facts or circumstances that the
person to be arrested has committed it. (Pestilos vs. Generoso, G.R.
No. 182601, 10 November 2014). Law enforcers need not personally
witness the commission of a crime, but they must have personal
knowledge of facts and circumstances indicating that the person
sought to be arrested committed it. (Veridiano vs. People, G.R. No.
200370, 07 June 2017) Also, there must be no appreciable lapse of
time between the arrest and the commission of the crime. Otherwise,
a warrant of arrest must be secured.
The third kind of warrantless arrest is self-explanatory. Necessarily,
an escapee must be brought back to the prison or in the place where
he is serving sentence without any warrant of arrest to be issued
again by the court.
Note that the law authorizes a police officer or even an ordinary
citizen to arrest offenders only if the latter are committing or have just
committed a crime. (Posadas vs. Ombudsman, G.R. No. 131492, 29
September 2000).
Should an arrest be made not in accordance with the above rules, or
otherwise put, if the arrest is not lawfully warranted, such
apprehension will be declared illegal, and the arresting officers may
be prosecuted for the crime of Arbitrary Detention under Article 124 of
the Revised Penal Code, which penalizes any public officer or
employee who, without legal grounds, detains a person. This is in
addition to such other crimes or offenses that may be committed in
the course of the illegal apprehension and detention.
From the moment the arrested person is brought in the custody of the
law, he must be afforded his rights under the law. Under Section 12,
Article III of the present 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.” It
is provided further that “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.”
Violation of the foregoing constitutional rights will subject the erring
law enforcer to criminal prosecution for violation of Republic Act No.
7438, which defines certain rights persons arrested, detained or under
custodial investigation, as well as the duties of public officers.
It is always a balancing act- the obligation of the State to enforce the
law to protect its citizens and the right of individuals to be similarly
protected against possible abuses of the State. The best solution is to
simply abide by the law. This will dispense with police intervention and
bill of rights- invocation.
Warrantless Arrest: When Can It Be Lawful?
Last updated: 03 November 2017 15:18 Created: 03 November 2017
14:57 3 min read Hits: 2055 Rating:
An individual who committed an offense was chased by a police
officer. The individual attempted to go inside a house to hide from the
police authorities. The officer followed and discovered drugs lying
around. Can the drugs be confiscated and used as evidence?
According to the plain view doctrice, the evidence can be used as the
intrusion was valid. If the police officer peeks through the window of
the house and sees the drugs, he can also confiscate the evidence
without prejudice. However, the plain view doctrine cannot be used
because there was no previous valid intrusion.
Section 5, Rule 113 of the Rules of Court provides:
Sec 5. Arrest without 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.
The Supreme Court summarizes the rule as follows:
Corolarilly, the 1987 Constitution states that a search and consequent
seizure must be carried out with a judicial warrant; otherwise, it
becomes unreasonable and any evidence obtained therefrom shall be
inadmissible for any purpose in any proceeding. Said proscription,
however, admits of exceptions, namely:
1. Warrantless search incidental to a lawful arrest;
2. Search of evidence in “plain view;”
3. Search of a moving vehicle;
4. Consented warrantless search;
5. Customs search;
6. Stop and Frisk; and
7. Exigent and emergency circumstances.
What constitutes a reasonable or unreasonable warrantless search or
seizure is purely a judicial question, determinable from the
uniqueness of the circumstances involved, including the purpose of
the search or seizure, the presence or absence of probable cause, the
manner in which the search and seizure was made, the place or thing
searched, and the character of the articles procured.
In searches incident to a lawful arrest, the arrest must precede the
search; generally, the process cannot be reversed. Nevertheless, a
search substantially contemporaneous with an arrest can precede the
arrest if the police have probable cause to make the arrest at the
outset of the search. Although probable cause eludes exact and
concrete definition, it ordinarily signifies a reasonable ground of
suspicion supported by circumstances sufficiently strong in
themselves to warrant a cautious man to believe that the person
accused is guilty of the offense with which he is charged.
SC reminds PNP anew: Follow rules on warrantless arrest
September 25, 2016 - 11:35am
MANILA, Philippines (Philippines News Agency) — The Supreme
Court (SC) reminded anew the Philippine National Police to comply
with rules on warrantless arrest, particularly on drug suspects.
The court made the reiteration after it acquitted a drug convict when it
found that his warrantless arrest and the search incidental to his
arrest were “unreasonable and unlawful.”
In the 11-page decision penned by Justice Estela M. Perlas-Bernabe,
the high court’s First Division granted the appeal of accused-appellant
Gerrjan Manago to reverse and set aside the May 20, 2013 decision
and Nov. 6, 2013 resolution of the Court of Appeals (CA).
The CA in the said decision affirmed the March 23, 2009 ruling of the
Regional Trial Court (RTC) Branch 58 of Cebu City, finding Manago
guilty beyond reasonable doubt of violating Section 11, Article II of RA
9165, the Comprehensive Dangerous Drugs Acts of 2002.
“In fine, Manago’s warrantless arrest, and the search incidental
thereto, including that of his moving vehicle were all unreasonable
and unlawful. In consequence, the shabu seized from him is rendered
inadmissible in evidence pursuant to the exclusionary rule under
Section 3 (2), Article III of the 1987 Constitution. Since the confiscated
shabu is the very corpus delicti of the crime charged, Manago must
necessarily be acquitted and exonerated from criminal liability,” the
court held.
The court, however, said that one of the recognized exceptions to the
needs of a warrant before a search may be effect is a search
incidental to a lawful arrest. In this instance, the law requires that
there first be a lawful arrest before a search can be made and “the
process cannot be reversed.”
Under Section 5, Rule 113 of the Revised Rules of Criminal
Procedure, the three instances when warrantless arrests may be
lawfully effected are: (a) an arrest of a suspect in flagrante delicto (in
the very act of); (b) an arrest of a suspect where, based on personal
knowledge of the arresting officer, there is probable cause that said
suspect was the perpetrator of a crime which had just been
committed; and (c) an arrest of a prisoner who has escaped from
custody serving final judgment or temporarily confined during the
pendency of his case or has escaped while being transferred from
one confinement to another.
The court stressed that in warrantless arrests made pursuant to Sec.
5(b), “it is essential that the element of personal knowledge must be
coupled with the element of immediacy; otherwise, the arrest may be
nullified, and resultantly, the items yielded through the search
incidental thereto will be rendered inadmissible in consonance with
the exclusionary rule of the 1987 Constitution.”
The court held that while the element of personal knowledge under
Sec. 5(b) was present, the police authorities, opting to conduct a “hot
pursuit operation which — considering the lack of immediacy —
unfortunately failed to meet the legal requirements therefor. Thus,
there being no valid warrantless arrest under the “hot pursuit”
doctrine, the CA erred in ruling that Manago was lawfully arrested.
“In view of the finding that there was no lawful arrest in this case, the
CA likewise erred in ruling that the incidental search on Manago’s
vehicle and body was valid. In fact, the said search was made even
before he was arrested and thus, violated the cardinal rule on
searches incidental to lawful arrests that there first be a lawful arrest
before a search can be made,” the Court held.
The court underscored that “routine inspections do not give police
officers carte blanche discretion to conduct warrantless searches in
the absence of probable cause.”
Records reveal that in the evening of March 15, 2007, PO3 Antonio
Din of the Philippine National Police (PNP) Mobile Patrol Group
personally witnessed a robbery incident while he was waiting for his
turn to have a haircut at Jonas Borces Beauty Parlor. After his brief
shootout with the armed robbers, the latter fled using a motorcycle
and a red Toyota Corolla. Through an investigation and verification by
police authorities, they found out that the armed robbers were staying
in Barangay Del Rio Pit-os; and traced the getaways vehicles to
Manago. The next day, March 16, 2007, the police set up a
checkpoint in Sitio Panagdait where the red Toyota Corolla being
driven by Manago passed by and was intercepted by the police
officers. The police then ordered Manago to disembark the car, and
from there, proceeded to search the vehicle and the body of Manago,
which yielded the plastic sachet containing shabu. Thereupon, they
effected Manago’s arrest.
In this case, the police officers had already conducted a thorough
investigation and verification proceedings, which yielded, among
others: the identities of the robbery suspects; the place where they
reside; and the ownership of the getaway vehicles used in the
robbery. These pieces of information were already enough for said
police officers to secure the necessary warrants to accost the robbery
suspects. Consequently, there was no longer any exigent
circumstance that would have justified the necessity of setting up a
checkpoint for the purpose of searching the subject vehicle. Also, the
checkpoint was arranged for the targeted arrest of Manago, who was
already identified as the culprit of the robbery incident. In this regard,
it cannot, therefore, be said that the checkpoint was meant to conduct
a routinary and indiscriminate search of moving vehicles. Rather, it
was used as a subterfuge to put into force the capture of the fleeing
suspect.
In 2009, Manago was found by the Cebu City RTC guilty beyond
reasonable doubt of possession of 0.3852 grams of shabu and
sentenced him to suffer the penalty of imprisonment for a period of 12
years and one day, as minimum, to 15 years, as maximum, and to
pay a P300,000 fine.
The case was elevated to the CA which affirmed Manago’s conviction,
prompting the latter to further elevate the matter to the high court.
Seares: ‘Hot pursuit’ and Imok’s killers
ATTY. PACHICO A. SEARES December 4, 2017
ARREST without warrant during “hot pursuit” is allowed for efficient
police work: (1) delay may endanger law enforcers’ lives or the lives of
others and (2) delay may allow the perpetrators to flee.
Jordan Gera, the second suspect to fall in the killing of Ermita Bry.
Captain Felicisimo Rupinta, was arrested by police eight days (Dec. 1)
after Rupinta’s murder (Nov. 23).
Was Gera’s arrest still in the course of a hot pursuit and thus valid and
legal? Most probably not, if one relies on Supreme Court past
decisions that lay down conditions to determine legality of warrantless
arrests.
‘Just committed’
From the SC rulings (among them, notably the case of Pestilos,
Macapanas et. al. vs. Generoso and People of the Philippines, GR
#18260, Nov. 10, 2014), what’s deemed crucial is the provision under
the Revised Rules of Criminal Procedure that the crime has been “just
committed.”
That means the incident must have “immediacy” and “no large
measure of interruption” or “appreciable lapse of time.” Underscore
the word “just” in “just committed” under the rules, the high tribunal in
effect said.
How long
But how long may the interruption be before the hot pursuit cools and
the arrest becomes unlawful?
Not hot pursuit anymore: the next day (People vs. del Rosario); three
days later (Posadas vs. Ombudsman); six days after (Rolito Go vs.
Court of Appeals, yes, the traffic rage case).
Held valid: the same day (People vs. Tonog Jr.); three hours after the
crime (People vs. Gerente).
Of course, along with the element of time, the SC also considered
“personal knowledge” and “probable cause” as determined by cops
making the arrest.
Arrest warrant
Let this be made clear though: If police can no longer arrest a murder
suspect under the hot pursuit doctrine, it doesn’t mean law enforcers
hands are tied and perpetrators get off the hook. Police can still go
after him using an arrest warrant.
Is the rule merely a “human rights nicety” that the Commission on
Human Rights (CHR) loves to wave before law enforcers? Or an
annoying rule of procedure that impairs police work?
Reason for rule
The SC, in interpreting the said rule on criminal procedure (Rule 113,
section 5 [b]), noted that as the “time gap” increases between
commission of the crime and the arrest, pieces of information “are
prone to be contaminated by external factors,” such as
misinterpretation and hearsay. In sum, the rule aims to minimize
arrests on mere suspicion or information passed from person to
person to police.
This is not to imply the police arrested suspect #2 Jordan Gera
without evidence that can stand in court. But in making the apparent
shortcut, the police could hurt the case buildup against Rupinta’s
killers.
The rule is a safeguard against abuse or excess. Too bad that some
people may see it as an impediment to swift law enforcement -- and a
dampener to the grippingly dramatic image of police hotly pursuing
dastardly criminals.
RULE 113 - ARREST
Section 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.
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.
No violence or unnecessary force shall be used in making an arrest.
The person arrested shall not be subject to a greater restraint than is
necessary for his detention.
Sec. 3. Duty of arresting officer. – It shall be the duty of the officer
executing the warrant to arrest the accused and deliver him to the
nearest police station or jail without unnecessary delay.
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 reason therefore.
Sec. 5. Arrest without 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 paragraphs (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.
Sec. 6. Time of making arrest. – An arrest may be made on any day
and at any time of the day or night.
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 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 arrested or of another acting in his behalf, have the right to visit and
shall be shown to him as soon as practicable. 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
Sec. 8. Method of arrest by officer without warrant. – When making an regulations, a relative of the person arrested can also exercise the
arrest without a warrant, the officer shall inform the person to be same right.
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 to so inform him, or when the
giving of such information will imperil the arrest.

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 the case 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.

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.

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.

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.

Sec. 13. Arrest after escape or rescue. – 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.

Sec. 14. Right of attorney or relative to visit person arrested. – Any

member of the Philippine Bar shall, at the request of the person
Robbery vs. Theft; distinctions.
PEOPLE OF THE PHILIPPINES VS. CESAR CONCEPCION Y
BULANIO, G.R. No. 200922, July 18, 2012.
“x x x.
Robbery vs. Theft
On the second and third issues, Article 293 of the RPC defines
robbery as a crime committed by “any person who, with intent to gain,
shall take any personal property belonging to another, by means of
violence against or intimidation of any person, or using force upon
anything.” Robbery with homicide occurs when, by reason or on
occasion of the robbery, the crime of homicide shall have been
committed⁠5. In Article 249 of the RPC, any person who shall kill
another shall be deemed guilty of homicide. Homicide, as used in
robbery with homicide, is to be understood in its generic sense to
include parricide and murder.⁠6 The penalty for the crime of robbery
with homicide is reclusion perpetua to death.⁠7
Theft, on the other hand, is committed by any person who, with intent
to gain but without violence against or intimidation of persons nor
force upon things, shall take the personal property of another without
the latter’s consent⁠8. The penalty of prision correccional in its
minimum and medium periods is imposed upon persons guilty of theft,
if the value of the thing stolen is more than P200 but does not exceed
P6,000.
By definition in the RPC, robbery can be committed in three ways, by
using: (a) violence against any person; (b) intimidation of any person;
and/or (c) force upon anything. Robbery by use of force upon things is
provided under Articles 299 to 305 of the RPC.
The main issue is whether the snatching of the shoulder bag in this
case is robbery or theft. Did Concepcion employ violence or
intimidation upon persons, or force upon things, when he snatched
Acampado’s shoulder bag?
In People v. Dela Cruz,⁠9 this Court found the accused guilty of theft
for snatching a basket containing jewelry, money and clothing, and
taking off with it, while the owners had their backs turned.
In People v. Tapang,⁠10 this Court affirmed the conviction of the
accused for frustrated theft because he stole a white gold ring with
diamond stones from the victim’s pocket, which ring was immediately
or subsequently recovered from the accused at or about the same
time it was stolen.
In People v. Omambong,⁠11 the Court distinguished robbery from
theft. The Court held:
Had the appellant then run away, he would undoubtedly have been
guilty of theft only, because the asportation was not effected against
the owner’s will, but only without his consent; although, of course,
there was some sort of force used by the appellant in taking the
money away from the owner.
xxxx
What the record does show is that when the offended party made an
attempt to regain his money, the appellant’s companions used
violence to prevent his succeeding.
xxxx
The crime committed is therefore robbery and not theft, because
personal violence was brought to bear upon the offended party before
he was definitely deprived of his money.⁠12
The prosecution failed to establish that Concepcion used violence,
intimidation or force in snatching Acampado’s shoulder bag.
Acampado herself merely testified that Concepcion snatched her
shoulder bag which was hanging on her left shoulder. Acampado did
not say that Concepcion used violence, intimidation or force in
snatching her shoulder bag. Given the facts, Concepcion’s snatching
of Acampado’s shoulder bag constitutes the crime of theft, not
robbery.
Concepcion’s crime of theft was aggravated by his use of a
motorcycle in committing the crime. Under Article 14(20) of the RPC,
the use of a motor vehicle as a means of committing a crime is a
generic aggravating circumstance. Thus, the maximum period of the
penalty for the crime of theft shall be imposed upon Concepcion due
to the presence of a generic aggravating circumstance and the
absence of any mitigating circumstance.
Based on the RTC Decision’s statement of facts which was affirmed
by the CA, Concepcion’s co-conspirator, Rosendo Ogardo, Jr. y
Villegas (Ogardo), who was driving the motorcycle, died because he
lost control of the motorcycle and crashed in front of de Felipe’s taxi.
Since Concepcion, as passenger in the motorcycle, did not perform or
execute any act that caused the death of Ogardo, Concepcion cannot
be held liable for homicide.
X x x.”
Robbery
Robbery is defined as the taking of another’s property by force or
threat. It is sometimes also referred to as larceny by threat or force.
Because robbery involves injury or the threat of injury, it is considered
a more serious crime than many of the other theft crimes.
In 2012, over a quarter of a million robberies occurred in the United
States. This is a twenty-five percent reduction from the more than one
million robberies that occurred per year for much of the 1990s.
Elements of Robbery
The crime of robbery involves (1) the taking of the property of another
(2) from his or her person or in their presence (3) by violence,
intimidation or threat (4) with the intent to deprive them of it
permanently. Robbery is thus distinct from the crime of larceny in two
important ways. First, the theft occurs through the use of force and
intimidation. A perpetrator is not required to use significant force, or
extreme threats, in order to commit a robbery. All that is required is
the amount of violence or fear necessary to cause the victim to give
up his or her possessions. This may vary based on the value of the
possession and the victim. For instance, less violence may be
required to rob an elderly woman of her possessions than would be
required to intimidate a strong young man. It is also important to note
that the violence must occur as part of the theft in order for the crime
to rise to the level of robbery. If an individual uses violence after the
theft while trying to escape police, for instance, this will not make the
crime a robbery.
A second distinction of robbery is that the crime must occur in the
victim’s presence. This is because violence or threat of harm requires
the presence of the victim. If the victim is unavailable, the elements of
a robbery cannot be completed. While larceny requires that the
possessions that are stolen belonged to someone else, they can be
taken in secret or while the owner is unavailable. Robbery can only be
charged if the victim personally experienced the crime.
Threats
Where a perpetrator does not harm a victim, but merely threatens the
victim with harm, several additional requirements must be met in order
to show that a robbery occurred. Threats during a theft only rise to the
level of robbery if they are imminent threats that include a threat of
death, bodily injury, or destruction of the victim’s home. If a criminal
threatens to shame the victim or spread rumors about them, this will
not turn a larceny into a robbery. Additionally, the victim must have an
actual and reasonable fear based on the threats. For example, if a
weightlifter is threatened by a small child who is trying to steal his
wallet, it is doubtful that the weightlifter would be “reasonably” afraid
of the child and this is probably not a robbery.
Aggravated Robbery
Many states provide for varying degrees of robbery depending on the
level of violence exerted against the victim. Aggravated robbery is a
robbery that occurs under the most serious of circumstances and
usually requires either that a deadly weapon was used during the
robbery or that the perpetrator inflicted serious bodily harm on the
victim. For instance, if a criminal uses a gun or knife to commit the
crime, or gravely injures the victim, he may be charged with
aggravated robbery. Some states also apply aggravated robbery to
any robbery that occurs against special groups of victims, such as
elderly persons or disabled individuals.
Article 308 of the Revised Penal Code provides
Art. 308. Who are liable for theft. Theft is committed by any person
who, with intent to gain but without violence against, or intimidation of
persons nor force upon things, shall take personal property of another
without the latters consent.
The elements of theft under Article 308 of the Revised Penal Code
are as follows: (1) that there be taking of personal property; (2) that
said property belongs to another; (3) that the taking be done with
intent to gain; (4) that the taking be done without the consent of the
owner; and (5) that the taking be accomplished without the use of
violence against or intimidation of persons or force upon things.
RA 9165 Section 11. Possession of Dangerous Drugs. - The penalty
of life imprisonment to death and a fine ranging from Five hundred
thousand pesos (P500,000.00) to Ten million pesos (P10,000,000.00)
shall be imposed upon any person, who, unless authorized by law,
shall possess any dangerous drug in the following quantities,
regardless of the degree of purity thereof:
(1) 10 grams or more of opium;
(2) 10 grams or more of morphine;
(3) 10 grams or more of heroin;
(4) 10 grams or more of cocaine or cocaine hydrochloride;
(5) 50 grams or more of methamphetamine hydrochloride or "shabu";
(6) 10 grams or more of marijuana resin or marijuana resin oil;
(7) 500 grams or more of marijuana; and
(8) 10 grams or more of other dangerous drugs such as, but not
limited to, methylenedioxymethamphetamine (MDA) or "ecstasy",
paramethoxyamphetamine (PMA), trimethoxyamphetamine (TMA),
lysergic acid diethylamine (LSD), gamma hydroxyamphetamine
(GHB), and those similarly designed or newly introduced drugs and
their derivatives, without having any therapeutic value or if the
quantity possessed is far beyond therapeutic requirements, as
determined and promulgated by the Board in accordance to Section
93, Article XI of this Act.
hydrochloride, marijuana resin or marijuana resin oil,
methamphetamine hydrochloride or "shabu", or other dangerous
drugs such as, but not limited to, MDMA or "ecstasy", PMA, TMA,
LSD, GHB, and those similarly designed or newly introduced drugs
and their derivatives, without having any therapeutic value or if the
quantity possessed is far beyond therapeutic requirements; or three
hundred (300) grams or more but less than five (hundred) 500) grams
of marijuana; and
(3) Imprisonment of twelve (12) years and one (1) day to twenty (20)
years and a fine ranging from Three hundred thousand pesos
(P300,000.00) to Four hundred thousand pesos (P400,000.00), if the
quantities of dangerous drugs are less than five (5) grams of opium,
morphine, heroin, cocaine or cocaine hydrochloride, marijuana resin
or marijuana resin oil, methamphetamine hydrochloride or "shabu", or
other dangerous drugs such as, but not limited to, MDMA or
"ecstasy", PMA, TMA, LSD, GHB, and those similarly designed or
newly introduced drugs and their derivatives, without having any
therapeutic value or if the quantity possessed is far beyond
therapeutic requirements; or less than three hundred (300) grams of
marijuana.

Otherwise, if the quantity involved is less than the foregoing

quantities, the penalties shall be graduated as follows:

(1) Life imprisonment and a fine ranging from Four hundred thousand
pesos (P400,000.00) to Five hundred thousand pesos (P500,000.00),
if the quantity of methamphetamine hydrochloride or "shabu" is ten
(10) grams or more but less than fifty (50) grams;

(2) Imprisonment of twenty (20) years and one (1) day to life
imprisonment and a fine ranging from Four hundred thousand pesos
(P400,000.00) to Five hundred thousand pesos (P500,000.00), if the
quantities of dangerous drugs are five (5) grams or more but less than
ten (10) grams of opium, morphine, heroin, cocaine or cocaine
SC orders adoption of new plea bargaining rules for drug cases
By Christopher Lloyd Caliwan May 4, 2018, 7:39 pm Share
MANILA -- The Supreme Court (SC) En Banc has ordered all trial
courts to adopt a new plea bargaining framework in illegal drug cases
that would allow an accused to plead guilty to a lesser offense for a
lighter penalty.
In an eight-page notice dated May 3, the High Court directed Court
Administrator Jose Midas Marquez to issue a circular to all trial courts
in the country for the implementation of the plea bargaining policy.
The plea bargaining framework was adopted by the SC as an offshoot
of its Aug. 15, 2017 decision that declared unconstitutional Section 23
of Republic Act No. 9165 (Comprehensive Dangerous Drugs Act of
2002) for being contrary to the rule-making authority of the High
Tribunal under the Constitution.
Section 23 of RA 9165 provides that any person charged under the
law, regardless of the imposable penalty, should be denied plea
bargaining or pleading guilty to a lesser offense.
The SC ruling was handed down on the case filed by Salvador
Estipona against Legaspi City regional trial court Judge Frank
Lobrigo.
Case records showed that Estipona was allegedly caught in
possession of .084 grams of methamphetamine hydrochloride or
shabu. He was charged with violation of Section 11, Article 2 of RA
9165 before Judge Lobrigo.
Assisted by the Public Attorney’s Office, Estipona challenged before
the SC the judge’s denial of his motion for plea bargaining. The SC
ruled in Estipona's favor.
Citing previous decisions, the SC said its power “to promulgate rules
for pleading, practice, and procedure is exclusive to the Court and is
not a shared power” and thus, the High Court “is the only entity that
may regulate such procedure.”
Associate Justice Diosdado M. Peralta, who wrote the Estipona ruling,
met with the officers of the Philippine Judges Association, which
submitted the draft on the plea bargaining framework.
During its full court session last April 10, the framework was approved
by the SC en banc.
The SC said that plea bargaining is not allowed in drugs cases where
the penalty is life imprisonment or death.
Plea bargaining is also not allowed under Section 5 of RA 9165 on the
sale, trading, administration, dispensation, delivery, distribution and
transportation of all kinds of dangerous drugs, the SC noted.
Under the plea bargaining framework, an accused charged with
violation of Section 11 of RA 9165 on possession of dangerous drugs
where the quantity is less than 5 grams (in case of shabu, opium,
morphine, heroin and cocaine, and less than 300 grams in case of
marijuana) with a penalty of 12 years and one day to 20 years in
prison and a fine ranging from PHP300,000 to PHP400,000, he or she
can plea bargain to a violation of Section 12 on possession of
equipment, instrument, apparatus, etc. with a penalty of six months
and one day to four years in prison and a fine ranging from
PHP10,000 to PHP50,000.
In this case, the SC said “the court is given the discretion to impose a
minimum period and a maximum period to be taken from the range of
penalty provided by law.”
It said “a straight penalty within the range of six months and one day
to one year may likewise be imposed.”
The SC also said, “In all instances, whether or not the maximum
period of the penalty is already served, drug dependency test shall be
required. If accused admits drug use, or denies it but is found positive
after drug dependency test, he/she shall undergo treatment
rehabilitation for a period of not less than six month.
“Said period shall be credited to his/her penalty and the period of
his/her after-care and follow-up program if penalty is still unserved. If
accused is found negative for drug use/dependency, he/she will be
released on time served, otherwise, he/she will serve his sentence in
jail minus the counseling period at rehabilitation center.
"However, if accused applies for probation in offenses punishable
under RA 9165, other than for illegal drug trafficking or pushing under
Section 5 in relation to Section 24 thereof, then the law on probation
shall apply."
Also under Section 11, if the accused is charged with possession of
shabu, opium, morphine, heroin, and cocaine of more than 5 grams
but not exceeding 10 grams, or with marijuana of 300 grams but not
more than 500 grams, he or she can plea bargain to violation of
Section 11 (less than 5 grams in case of shabu, etc. and less than
300 grams of marijuana) to lower the penalty from 20 years to life
imprisonment and fine ranging from PHP400,000 to PHP500,000, to
12 years and one day to 20 years prison term and fine ranging from
PHP300,000 to PHP400,000.

If an accused is charged with possession of equipment, apparatus

and other paraphernalia for dangerous drugs under Section 12, he or
she can plea bargain to violation of Section 15 or use of dangerous
drugs to lessen the penalty from six months and one day to four years
in prison and fine from PHP10,000 to PHP50,000, to six months
treatment and rehabilitation if he or she admits drug use or is found
positive after drug use/dependency test.

For violation of Section 14 for possession of equipment, apparatus

and other paraphernalia for dangerous drugs during parties, social
gatherings or meeting, he or she can plea bargain to violation of
Section 15 on use of dangerous drugs to lower the penalty from a
maximum or four months in prison to six months of treatment and
rehabilitation. (PNA)
SEARCH WARANT ADMINISTRATIVE CIRCULAR NO. 13
SUPREME COURT CIRCULARS AND ORDERS
TO: ALL EXECUTIVE JUDGES AND JUDGES OF THE
METROPOLITAN TRIAL COURTS, MUNICIPAL TRIAL COURTS
AND MUNICIPAL CIRCUIT TRIAL COURTS
SUBJECT: GUIDELINES AND PROCEDURE IN THE ISSUANCE
OF SEARCH WARRANTS.
Under Administrative Order No. 6 of this Court, dated June 30, 1975,
the Executive Judge derives his powers and prerogatives through
delegation thereof by this Court — some of which are to improve
judicial services, in coordination with court related government
agencies, and to further provide leadership in the management of all
courts within his area of administrative supervision.
As a measure to better serve the public good and to facilitate the
administration of justice, the Court is prescribing hereunder the
guidelines in the issuance of search warrants:
All applications for search warrants, if filed with the Executive Judge,
shall be assigned, by raffle, to a judge within his administrative area,
under whose direction the search warrant shall be issued for the
search and seizure of personal property;
After the application has been raffled and distributed to a Branch, the
judge who is assigned to conduct the examination of the complainant
and witnesses should immediately act on the same, considering that
time element and possible leakage of information are primary
considerations in the issuance of search warrants and seizure;
Raffling shall be strictly enforced, except only in cases where an
application for search warrant may be filed directly with any judge in
whose jurisdiction the place to be searched is located, after office
hours, or during Saturdays, Sundays, and legal holidays, in which
case the applicant is required to certify under oath the urgency of the
issuance thereof after office hours, or during Saturdays, Sundays and
legal holidays;
If, in the implementation of the search warrant, properties are seized
thereunder and the corresponding case is filed in court, said case
shall be distributed by raffle conformably with Circular No. 7, dated
September 23, 1974, of this Court, and thereupon tried and decided
by the judge to whom it has been assigned, and not necessarily by
the judge who is issued the search warrant.
New applications. — In order to insure maximum legitimate effect and
give meaning and substance to the constitutional guarantee on the
security of every person, his house and his effects, against
unreasonable searches and seizures, the following procedure should
be strictly observed:
A warrant may be issued for the search and seizure of personal
property — 1) subject of the offense; 2) stolen or embezzled or are
the proceeds or fruits of an offense; and, 3) used or intended to be
used as the means of committing an offense;
A warrant shall not issue but upon probable cause in laid connection
with one specific offense to be determined by the judge or such other
responsible officer authorized by law after examination under oath or
affirmation of the complainant and the witnesses he may produce on
facts personally known to them, and particularly describing the place
to be searched and the things to be seized so that they could be
properly identified;
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 any witnesses he may produce and attach to the
record their sworn statements together with any affidavits submitted;
If the judge is thereupon satisfied of the existence of facts upon which
the application is based, or that there is probable cause to believe that
they exist, he must issue the warrant, which must be substantially in
the form prescribed by the Rules;
Search warrants must be in duplicate, both signed by the judge. The
duplicate copy thereof must be given to the person against whom the
warrant is issued and served. Both copies of the warrant must indicate
the date until when the warrant shall be valid and must direct that it be
served in the daytime. If the judge is satisfied that the property is in
the person or in the place ordered to be searched, a direction may be
inserted in the warrants that it be served at any time of the day or
night; In every court, there shall be a log under the custody of the
Clerk of Court wherein shall be entered within 24 hours after the
issuance of the search warrant, the following:
Date and number of the warrant;
Name of the issuing judge;
Name of the person against whom the warrant is issued;
Offense cited in the warrant; and
Name of the officer who applied for the warrant and his witnesses.
Each branch or branches of a court shall have a separate and distinct
log book from the log book kept by the other branches of the same
court stationed in another city or municipality;
The search warrant shall be valid for ten (10) days from date of
issuance, and after which the issuing judge should ascertain if the
return has been made, and if there was none, should 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
should ascertain from the officer who seized the property under the
warrant if a detailed receipt of the property seized was left with the
lawful occupants of the premises in whose presence the search and
seizure were made, or in the absence of such occupants, whether he
left a receipt in the place in which he found the seized property in the
presence of at least two witnesses of sufficient age and discretion
residing in the same locality, and should require that the property
seized by virtue of the warrant shall be delivered to the judge who
issued the warrant. The judge should see to it that an accurate and
true inventory of the property seized duly verified under oath is
attached to the return and filed with the court; and
The return on the search warrant shall be filed and kept by the
custodian of the log book who shall also enter in the log book, the
date of the return, the result, and such other actions the judge may
have taken thereon.
This circular shall take effect immediately from receipt of notice.
Melencio-Herrera and Relova, JJ., are on leave.
Very truly yours,
(Sgd.) GLORIA C. PARAS
Clerk of Court
Search warrant
By: Frank E. Lobrigo - @inquirerdotnet 12:07 AM December 07, 2016
The nation was stunned by news that a confessed narcopolitician,
who turned against cohorts, perished while in the custody of state
agents in a provincial jail. The lethal police operation was underpinned
by a search warrant, a judicial writ derived from the common law legal
tradition that reached the Philippines during the American colonial
period.
“Every man’s house is his castle” is a legal maxim celebrated in
English as well as American constitutional theory. The legal maxim
sprang from the 1603 English Semayne’s case which not only
recognized the right of the homeowner to defend his house against
unlawful entry even by the King’s agents, but at the same time
recognized the authority of the appropriate officers to break and enter
upon notice in order to execute the King’s process.
In American jurisprudence, the Semayne’s case was the foundation of
the “knock and announce rule” in the implementation of search
warrants. In the 1765 English case of Entick vs Carrington, the right to
privacy of abode was fortified when the issuance and implementation
of a general search warrant was outlawed. Stonehill vs Diokno was
the Philippine version of Entick vs Carrington.
Entick vs Carrington paved the way for the adoption in 1791 of the
Fourth Amendment in the US Constitution, which guarantees the right
of the people to be secure in their persons, houses, papers and
effects, against unreasonable searches and seizures. The same
guarantee is found in Section 2 of Article III of the 1987 Philippine
Constitution. A similar provision is found in Article 10, Title IV of the
1899 Malolos Constitution. In the 1886 case of Boyd vs United
States, which applied the Fourth Amendment, the US Supreme Court
hailed the case of Entick vs Carrington as a “great judgment; one of
the landmarks of English liberty; and one of the permanent
monuments of the British Constitution.”
A search warrant thus is a justified intrusion into a citizen’s
constitutional right to privacy and the right against unreasonable
searches and seizures. The Rules of Court require that it can only be
issued upon probable cause and on personal knowledge of the
applicant of the facts justifying the issuance. The place to be searched
or persons or things to be seized must be identified with specific
description. The warrant is issued for the seizure of personal property
involved in a crime either as an effect or fruit of a crime, or used or
intended as a means of committing a crime. With jurisprudential
disdain for general warrants, a search warrant is limited by the single-
offense rule.
A search warrant has a subject and an object. The subject is either a
natural or juridical person to whom inures the constitutional guarantee
of the right of privacy. The object is the place to be searched and the
personal property to be seized. There must be a causal link between
the subject and the object of a search warrant. That nexus is
established by the effective control of the subject of the warrant over
the object of the search.
Leased premises are within the effective control of the lessee that
makes him the subject of a search warrant to be implemented in the
leased premises. Thus a search warrant can only be issued against a
subject who enjoys the right to privacy. The state or any of its
instrumentalities do not enjoy such constitutional right because the bill
of rights is arrayed against the tremendous power of the state. The
state bears the burden or duty of transparency and never the right to
privacy.
The only possibility that a search warrant may be issued against a
state property or premises is when such property or premises are
within the effective control of a private individual or entity.
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:
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.
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.
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.
Human Rights Advisory for Arresting Officer Implementing Warrant of
Arrest
(Revised POP December 2013, Rule 13 pages 32-37)
“All PNP personnel must promote and protect the citizen’s right to due
process, presumption of innocence until proven guilty by the court,
and equal protection of the law."
Always carry a copy of the warrant of arrest. In case the warrant of
arrest is not in the possession of the arresting officer, it must be
produced and immediately shown to the person arrested after the
conduct of the arrest;
Be in proper and complete uniform or as the nature of the operation
would require, it is enough that a member of the team implementing
the warrant is in uniform but everybody must have PNP ID CARD.
Always identify yourself as a police officer;
Arresting officers must deliver the arrested person without
unnecessary delay to the nearest Police Station or jail to record the
fact of the arrest;
Respect the right of person deprived of liberty to have immediate
access to any form of communication available to inform his/her
family, relative, friend, lawyer or any human rights organization on his
or her whereabouts and condition;
Arresting officers must inform the person arrested of the cause of the
arrest and the fact that a warrant had been issued for his arrest,
except when he flees or forcibly resist before the officer has
opportunity to so inform him, or when giving such information will
imperil the arrest;
As much as possible, use marked PNP vehicle in transporting
arrested person(s);
No torture, force, violence, threat, intimidation, or any other similar
means which vitiate the free will shall be used against an arrested
person; and
The bringing of arrested persons to secret detention places, solitary
confinement and the like is strictly prohibited.