Malversation Republic Act No.docx

MALVERSATION REPUBLIC ACT NO. 1060 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

duly authorized officer, shall be prima facie evidence that he has put 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 machinevalidated, 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:

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."

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.

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.

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

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.”

judgment or is temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another.

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.

The Supreme Court summarizes the rule as follows:

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

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 shall be shown to him as soon as practicable. Sec. 8. Method of arrest by officer without warrant. – When making an arrest without a warrant, the officer shall inform the person to be 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

arrested or of another acting in his behalf, have the right to visit and 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 regulations, a relative of the person arrested can also exercise the same right.

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

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:

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

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.

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.

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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.

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.

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. 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

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.

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;

Search warrant

Name of the issuing judge;

By: Frank E. Lobrigo - @inquirerdotnet 12:07 AM December 07, 2016

Name of the person against whom the warrant is issued;

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.

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

“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 singleoffense 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 andorder 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.

Human Rights Advisory for Arresting Officer Implementing Warrant of Arrest

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.

(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.