Remedial Law

I. What are the rights of the person arrested, detained or under custodial
investigation under R.A. 7438?

Under Sec. 2 of R.A. 7438, the rights of Persons Arrested, Detained or under Custodial
Investigation are the following:

a) Any person arrested detained or under custodial investigation shall at all times be assisted
by counsel. 
b) Any public officer or employee, or anyone acting under his order or his place, who
arrests, detains or investigates any person for the commission of an offense shall inform
the latter, in a language known to and understood by him, of his rights to remain silent
and to have competent and independent counsel, preferably of his own choice, who shall
at all times be allowed to confer privately with the person arrested, detained or under
custodial investigation. If such person cannot afford the services of his own counsel, he
must be provided with a competent and independent counsel by the investigating officer. 
c) The custodial investigation report shall be reduced to writing by the investigating officer,
provided that before such report is signed, or thumbmarked if the person arrested or
detained does not know how to read and write, it shall be read and adequately explained
to him by his counsel or by the assisting counsel provided by the investigating officer in
the language or dialect known to such arrested or detained person, otherwise, such
investigation report shall be null and void and of no effect whatsoever. 
d) Any extrajudicial confession made by a person arrested, detained or under custodial
investigation shall be in writing and signed by such person in the presence of his counsel
or in the latter's absence, upon a valid waiver, and in the presence of any of the parents,
elder brothers and sisters, his spouse, the municipal mayor, the municipal judge, district
school supervisor, or priest or minister of the gospel as chosen by him; otherwise, such
extrajudicial confession shall be inadmissible as evidence in any proceeding. 
e) Any waiver by a person arrested or detained under the provisions of Article 125 of the
Revised Penal Code, or under custodial investigation, shall be in writing and signed by
such person in the presence of his counsel; otherwise the waiver shall be null and void
and of no effect. 
f) Any person arrested or detained or under custodial investigation shall be allowed visits
by or conferences with any member of his immediate family, or any medical doctor or
priest or religious minister chosen by him or by any member of his immediate family or
by his counsel, or by any national non-governmental organization duly accredited by the
Commission on Human Rights of by any international non-governmental organization
duly accredited by the Office of the President. The person's "immediate family" shall
include his or her spouse, fiance or fiancee, parent or child, brother or sister, grandparent
or grandchild, uncle or aunt, nephew or niece, and guardian or ward. 

"custodial investigation" shall include the practice of issuing an "invitation" to a person

who is investigated in connection with an offense he is suspected to have committed,
without prejudice to the liability of the "inviting" officer for any violation of law. 
 BAR EXAM QUESTIONS

Custodial Investigation; Police Line-Up (1997)

Q: A, while on board a passenger jeep one night,   was   held   up   by   a   group   of   three
teenagers who forcibly divested her of her watch, necklace and wallet containing P100.00. That
done, the trio jumped off the passenger jeep and fled. B, the jeep driver, and A complained to the
police to whom they gave description of the culprits. According to the jeep driver, he would be
able to identify the culprits if presented to him. Next morning A and B were summoned to the
police station where five persons were line up before them for identification. A and B positively
identified C and D as the culprits. After preliminary investigation. C and D and one John Doe
were charged with robbery in an information filed against them in court. C and D set up, in
defense, the illegality of their apprehension, arrest and confinement based on the identification
made of them by A and B at a police line-up at which they were not assisted by counsel. How
would you resolve the issues raised by C and D?

A: The arguments of the accused are untenable. As held in People vs. Acot, 232 SCRA 406, the
warrantless arrest of accused robbers Immediately after their commission of the crime by police
officers sent to look for them on the basis of the information related by the victims is valid under
Section 5(b).Rule 113 of the Rules on Criminal Procedure. According to People vs. Lamsing,
248 SCRA 471, the right to counsel does  not  extend  to  police  line-ups,  because they are not
part of custodial investigations. However, according to People vs. Macan 238 SCRA 306, after
the start of custodial investigation, if the accused was not assisted by counsel, any identification
of the accused in a police line-up is inadmissible.

Custodial  Investigation;  Right  to  Counsel (1988)

Q: Armando Salamanca, a notorious police character,  came  under  custodial  investigation for a

robbery in Caloocan City. From the outset, the police officers informed him of his right to
remain silent, and also his right to have a counsel of his choice, if he could afford one or if not,  
the  government  would  provide  him  with such counsel.

He thanked the police investigators, and declared that he fully understands the rights enumerated
to him, but that, he is voluntarily waiving them. Claiming that he sincerely desires to atone for
his misdeeds, he gave a written statement on his participation in the crime under investigation.

In the course of the trial of the criminal case for the same robbery, the written admission of
Salamanca which he gave during the custodial investigation, was presented as the only evidence
of his guilt. If you were his counsel, what would you do? Explain your answer.

A: I would object to it on the ground that the waiver of the rights to silence and to counsel is
void, having been made without the presence of counsel.  (Art. III, sec.  12(1);  People  v. 
Galit, 135 SCRA 465 (1980). The waiver must also be in writing, although this requirement
might possibly have been complied with in this case by embodying the waiver in the written
confession. It should also be noted that under Rule 134, sec. 3, even if the extrajudicial
confession is valid, it is not a sufficient ground for   conviction   if   it   is   not   corroborated  by
evidence of corpus delicti.

Custodial  Investigation; Right to Counsel (1993)

Q: In his extrajudicial confession executed before the police authorities, Jose Walangtakot
admitted killing his girlfriend in a fit of jealousy. This  admission was made after  the  following
answer and question to wit:

T – Ikaw ay may karapatan pa rin kumuha ng serbisyo ng isang  abogado para makatulong mo sa

imbestigasyong ito at kung wala kang makuha,  ikaw  ay aming  bibigyan  ng  libreng abogado,
ano ngayon ang iyong masasabi?”

“S – Nandiyan naman po si Fiscal (point to Assistant Fiscal Aniceto Malaputo) kaya hindi ko na
kinakailanganang abogado.”

During the trial. Jose Walangtakot repudiated his confession contending that it was made without
the assistance of counsel and therefore Inadmissible in evidence. Decide.

A: The confession of Jose Walangtakot is inadmissible in evidence. The warning given to him is
insufficient in accordance with the ruling in People v. Duero, 104 SCRA 379, he should have
been warned also that he has the right to remain silent and that any statement he makes may be
used as evidence against him. Besides, under Art. III, Sec. 12(1) of the Constitution, the counsel
assisting a person being investigated must be independent. Assistant Fiscal Aniceto Malaputo
could not assist Jose Walangtakot. As held in People v. Viduya, 189 SCRA 403, his function is
to prosecute criminal cases. To allow him to act as defense counsel during custodial
investigations would render nugatory the constitutional rights of the accused during custodial
investigation. What the Constitution requires is a counsel who will effectively undertake the
defense of his client without any conflict of interest. The answer of Jose Walangtakot indicates
that he did not fully understand his rights. Hence, it cannot be said that he knowingly and
intelligently waived those rights.

Custodial  Investigation; Right to Counsel (2000)

Q: On October 1, 1985,     Ramos was arrested by a security guard because he appeared to be

“suspicious” and brought to a police precinct where in the course of the investigation he admitted
he was the killer in an unsolved homicide committed a week earlier. The proceedings of his
investigation were put in writing and dated October 1, 1985, and the only participation of
counsel assigned to him was his mere presence and signature on the statement. The  admissibility
of  the  statement  of  Ramos was placed in issue but the prosecution claims that the confession
was taken on October 1,

1985 and the 1987 Constitution providing for the right to counsel of choice and opportunity to
retain, took effect only on February 2, 1987 and cannot be given retroactive effect.  Rule on this.
(3%)

A: The confession of Ramos is not admissible, since  the  counsel  assigned  to  him  did  not
advise him of his rights. The fact that his confession was taken before the effectivity of the 1987
Constitution is of no moment. Even prior to the effectivity of the 1987 Constitution, the
Supreme  Court  already  laid  down  strict rules on waiver of the rights during investigation in
the case of People v. Galit, 135 SCRA 465 (1985).

Custodial Investigation; Right to Counsel; Receipt of Property Seized (2002)

Q: One day a passenger bus conductor found a man’s handbag left in the bus. When the
conductor opened the bag, he found inside a catling card with the owner’s name (Dante Galang)
and address, a few hundred peso bills, and a small plastic bag containing a white powdery
substance. He brought the powdery substance to the National Bureau of Investigation for
laboratory examination and it was determined to be methamphetamine hydrochloride   or  shabu, 
a  prohibited  drug. Dante Galang was subsequently traced and found and brought to the NBI
Office where he admitted ownership of the handbag and its contents. In the course of the
interrogation by NBI agents, and without the presence and assistance   of  counsel,  Galang  was
made  to sign a receipt for the plastic bag and its shabu contents. Galang was charged with illegal
possession of prohibited drugs and was convicted.

On appeal he contends that –

A. The plastic bag and its contents are inadmissible in evidence being the product of an
illegal search and seizure; (3%) and

B. The receipt he signed is also inadmissible as his rights under custodial investigation were
not observed. (2%) Decide the case with reasons. 

A:

A.     It is admissible…

B.     The receipt which Galang signed without the assistance of counsel is not admissible in
evidence.  As  held  in  People  v.  Castro,  274 SCRA 115 {1997), since the receipt is a
document   admitting   the   offense   charged, Galang should have been assisted by counsel as
required by Article III, Section 11 of the Constitution.

 
Custodial Investigation; Police Line-up (1993)

Q: Johann learned that the police were looking for him in connection with the rape of an 18-year
old girl, a neighbor. He went to the police   station  a  week  later  and  presented himself to the
desk sergeant. Coincidentally, the rape victim was in the premises executing an extrajudicial
statement. Johann, along with six (6) other suspects, were placed in a police line- up and the girl
pointed to him as the rapist. Johann was arrested and locked up in a cell. Johann was charged
with rape in court but prior to arraignment invoked his right to preliminary investigation.   This 
was  denied  by  the  judge, and thus, trial proceeded. After the prosecution presented several
witnesses, Johann through counsel, invoked the right to bail and filed a motion therefor, which
was denied outright by the Judge. Johann now files a petition for certiorari before the Court of
Appeals arguing that:

1) He should have been informed of his right to be represented by counsel prior to

his identification via the police line-up. Decide.

A: Pursuant to the decision in People us. Castmillo. 213. SCRA 777, Johann need not
be informed of his right to counsel prior to his identification  during  the  police  line-up. The
police line-up is not part of custodial investigation, since Johann was not being questioned  but
was  merely  being  asked  to exhibit his body for identification by a witness.

 ALTERNATIVE ANSWER

A: It may be argued that in United States vs. Wade, 388 U.S. 218 (1967) and Gilbert
vs. California. 388 U.S. 263 (1967) It was held that on the basis of the Sixth, rather than the Fifth
Amendment (equivalent to Art. III. sec. 14 (2) rather than sec. 12 (1)), the  police  lineup  is such
a “critical stage” that it carries “potential substantial prejudice” for which reason the accused is
entitled to the assistance of counsel.

Custodial Investigation; Rights (1990)

Q: Some police operatives, acting under a lawfully issued warrant for the purpose of searching
for firearms in the House of X located at No. 10  Shaw Boulevard, Pasig, Metro Manila, found,
instead of firearms, ten kilograms of cocaine.

1) May the said police operatives lawfully seize the cocaine? Explain your answer.

2) May X successfully challenge the legality of the search on the ground that the peace
officers did not inform him about his right to remain silent and his right to counsel?
Explain your answer.

3) Suppose the peace officers were able to find unlicensed firearms in the house in an
adjacent  lot,  that  is.  No,  12  Shaw Boulevard,  which  is  also  owned  by  X. May they
lawfully seize the said unlicensed firearms?    Explain your answer.
A:

(1)  Yes,  the  police  operatives  may  lawfully seize the cocaine, ….

(2)     No, X cannot successfully challenge the legality of the search simply because the peace
officers did not inform him about his right to remain silent and his right to counsel. Section

12(1), Article III of the 1987 Constitution provides:

“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.”

As held in People v. Dy, 158 SCRA 111. for this provision to apply, a suspect must be under
investigation. There was no investigation involved in this case.

(3)  The unlicensed firearms stored at 12 Shaw Boulevard may lawfully be seized …

Custodial Investigation; Rights (1993)

Q: Larry was an overnight guest in a motel. After he checked out the following day, the
chambermaid found an attache case which she surmised was left behind by Larry. She turned it
over to the manager who, to determine the name and address of the owner, opened the attache
case and saw packages which had a peculiar  smell and upon squeezing felt like dried   leaves.  
His   curiosity   aroused,   the manager made an opening on one of the packages and took several
grams of the contents thereof. He took the packages to the NBI, and in the presence of agents,
opened the packages, the contents of which upon laboratory examination, turned out to be
marijuana flowering tops, Larry was subsequently found, brought to the NBI Office where he
admitted ownership of the attache case and the packages. He was made to sign a receipt for the
packages. Larry was charged in court   for  possession of prohibited drugs. He was convicted. On
appeal, he now poses the following issues:

1) The packages are inadmissible in evidence being the product of an illegal search and
seizure;
2) Neither is the receipt he signed admissible, his rights under custodial investigation not
having been observed. Decide.

A:

On the assumption that the issues were timely raised the answers are as follows:

1) The packages are admissible in evidence. …

2) The receipt is not admissible in evidence. According to the ruling in People vs. Mirantes, 209
SCRA 179, such receipt is in effect an extrajudicial confession of the commission of an offense.
Hence, if it was signed without the assistance of counsel, in accordance with Section 12(3),
Article IV of the Constitution, it is inadmissible in evidence. [People v. Duhan, 142 SCRA 100
(1986)].

Custodial Investigation; Rights (1996)

Q: A, who was arrested as a suspect in a murder case was not represented by counsel during the
“question and answer” stage. However, before he was asked to sign his statements to the police
investigator, the latter provided A with a counsel, who happened to be at the police station. After
conferring with A, the counsel told the police investigator that A was ready to sign the
statements.

Can the statements of A be presented in court as his confession? Explain.

A: No, the statements of A cannot be presented in court as his confession. He was not assisted by
counsel during the actual questioning. There is no showing that the lawyer who belatedly
conferred with him fully explained to him the nature and consequences of his confession. In
People   vs.   Compil   244   SCRA   135,   the Supreme Court held that the accused must be
assisted by counsel during the actual questioning and the belated assistance of counsel before he
signed the confession does not cure the defect.

ALTERNATIVE ANSWER:

A: Yes, the statements of A can be presented in court as his confession. As held in People vs.
Rous, 242 SCRA 732, even if the accused was not assisted by counsel during the questioning, his
confession is admissible if he was able to consult a lawyer before he signed.

Custodial Investigation; Rights (1989)

Q: Pursuing reports that great quantities of prohibited   drugs   are   being   smuggled   at
nighttime through the shores of Cavite, the Southern Luzon Command set up checkpoints at the
end of the Cavite coastal road to search  passing motor vehicles. A 19-year old boy, who finished
fifth grade, while driving, was stopped by the authorities at the checkpoint. Without any
objection from him, his car was inspected, and the search yielded marijuana leaves hidden in the
trunk compartment of the car. The prohibited drug was promptly seized, and the boy was brought
to the police station for questioning.

1) Was the search without warrant legal?

 2) Before interrogation, the policeman on duty informed the boy in English that he does
“have a right to remain silent and the right to counsel.” However, there was no counsel
available as it was midnight. He declared orally that he did not need any lawyer as he was
innocent, since he was only bringing the marijuana leaves to his employer in Quezon City
and was not a drug user. He was charged with illegal possession of prohibited drugs. Is
his waiver of the right to counsel valid?

A:

(1) No, the search was not valid, because there was no probable cause ….

 (2)  No, the waiver of the right to counsel is not valid, since it was not reduced in writing and
made  in  the  presence  of  counsel.     Under Section 12(1), Article III of the 1987 Constitution
to be valid, the waiver must be made in writing and in the presence of counsel.

LANDMARK, RECENT SUPREME COURT DECISIONS

Miranda vs. Arizona, 384 U.S. 436, June 13, 1966

People vs. Herson Tan, G.R. No. 117321, February 11, 1998.
People vs. Samuel Marra, G.R. No. 108494, September 20, 1994
People vs. Robelyn Cabanada, G.R. No. 221424, July 19, 2017

II. Differentiate extra-judicial confession from judicial confession. What are the
requisites of a valid extra-judicial admission?

An extra-judicial confession is a declaration made voluntarily and without compulsion or

inducement by a person under custodial investigation, stating or acknowledging that he had
committed or participated in the commission of a crime. Judicial confessions on the other hand
are confessions made in a legal proceeding. It is made before a committing magistrate or in a
court in the due course of legal proceedings. It is also a plea of guilty made by the accused in a
fit state of mind to plead, before a court which is competent to try him for the offense charged
and which, upon the entry of the plea, is competent to enter judgement and fix the penalty.

The requisites of an extra-judicial confession are:

a. It must be voluntary;
b. It must be made with the assistance of competent and independent counsel;
c. It must be express; and
d. It must be in writing

BAR EXAM QUESTIONS

Custodial Investigation; Extrajudicial Confession (2001)

Q: Rafael,  Carlos  and  Joseph  were accused of murder before the Regional  Trial Court of
Manila. Accused Joseph turned state witness against his co-accused Rafael and Carlos, and was
accordingly discharged from the information. Among the evidence presented by the prosecution
was an extrajudicial confession made  by Joseph  during  the custodial Investigation, implicating
Rafael and Carlos   who,   he   said,   together   with   him (Joseph),  committed  the  crime.  The
extrajudicial confession was executed without the assistance of counsel.

Accused  Rafael  and  Carlos  vehemently objected on the ground that said extrajudicial
confession   was   inadmissible   in   evidence against them.

Rule  on  whether  the  said  extrajudicial confession  is  admissible  in  evidence  or  not. (5%)

FIRST ALTERNATIVE ANSWER:

A: According to People vs. Balisteros, 237 SCRA 499 (1994), the confession is admissible.
Under Section 12, Article III of the Constitution, the confession is inadmissible only against the
one who confessed. Only the one whose rights were violated can raise the objection as his right
is personal.

 SECOND ALTERNATIVE ANSWER;

A: According  to  People  us.  Jara, 144  SCRA 516(1986), the confession is inadmissible. If it is
inadmissible against the one who confessed, with more reason it should be inadmissible against
others.

Custodial Investigation; Extrajudicial Confession; Police Line-Up (1994)

Q: An information for parricide was filed against Danny. After the NBI found an eyewitness to
the commission of the crime. Danny was placed in a police line-up where he was identified as
the one who shot the victim. After the line-up, Danny made a confession to a newspaper reporter
who interviewed him.

1) Can Danny claim that his identification by the eyewitness be excluded on the ground that
the line-up was made without benefit of his counsel?
2) Can Danny claim that his confession be excluded on the ground that he was not  afforded
his “Miranda” rights?

 A:

1)     No, the identification of Danny, a private person, by an eyewitness during the line-up
cannot be excluded in evidence. In accordance with the ruling in People vs. Hatton, 210 SCRA 1,
the accused is not entitled to be assisted by counsel during a police line-up, because it is not part
of custodial investigation.

 ALTERNATIVE ANSWER;

Yes, in United States v. Wade, 338 U.S. 218 (1967) and Gilbert v. California, 338 U.S. 263
(1967).  it  was  held  that  on  the  basis  of  the Sixth, rather than the Fifth Amendment
(equivalent to Art. III, Sec. 14 (2) rather than Sec. 12(1)), the police line-up is such a critical
stage that it carries “potential substantial prejudice” for which reason the accused is entitled to
the assistance of Counsel.

1) No. Danny cannot ask that his confession to a newspaper reporter should be excluded in
evidence. As held in People vs. Bernardo,   220 SCRA 31, such an admission was not
made during a custodial interrogation but a voluntary statement made to the media.

LANDMARK, RECENT SUPREME COURT DECISIONS

People vs. Santos, G.R. No. 117873, December 22, 1997

People vs. Velarde, G.R. No. 139333, July 18, 2002
People vs. Reyes, G.R. No. 178300, March 17, 2009
People vs. Dacanay, G.R. No. 216064, November 7, 2016

III. What are the requisites for the issuance of a warrant of arrest?

Under Sec. 2, Article III of the Constitution provides that “no search warrant or warrant of arrest
shall issue except upon probable cause to be determined personally by the judge after
examination under oath or affirmation of the complainant and the witnesses he may produce, and
particularly describing the place to be search and the persons or things to be seized.”

LANDMARK, RECENT SUPREME COURT DECISIONS

Tabujara III vs. People, G.R. No. 175162, October 29, 2008
Borlongan vs. Peha, G.R. No. 143591, May 5, 2010
People vs. Tan, G.R. No. 182310, December 9, 2009
People vs. Gabo, G.R. No. 161083, August 3, 2010
AAA vs. Carbonell, G.R. No. 171465, June 8, 2007
Soliven vs. Makasiar, G.R. No. L-82585, L-82827, November 14, 1988
People vs. Moreno, G.R. No. 191759, March 2, 2020 (Hernando)
 IV. How is probable cause for issuance of warrant of arrest determined? Distinguish
probable cause determined by the Prosecutor and the Judge.

The test for issuing a warrant of arrest is less stringent than that used for establishing the guilt of
the accused. It is such set of fact and circumstances as would lead a reasonable discreet and
prudent man to believe that the offense charged in the information, or any offense included
therein, has been committed by the person sought to be arrested. In determining probable cause,
the average man weighs the facts and circumstances without resorting to the calibrations of the
rules of evidence of which he has no technical knowledge. Her relies on common sense. A
finding of probable cause needs only to rest on evidence showing that, more likely than not, a
crime has been committed and that it was committed by the accused. Probable cause demands
more than suspicion; it requires less than evidence that would justify conviction.

The judge, in satisfying himself of the existence of a probable cause for the issuance of a warrant
of arrest, following the established doctrine and procedure, may either:

(a) Rely upon the fiscal's certification of the existence of probable cause whether
or not the case is cognizable only by the Regional Trial Court and on the basis
thereof, issue a warrant of arrest; or

(b) If on the face of the information he finds no probable cause, he may disregard
the fiscal's certification and require the submission of the supporting affidavits of
witnesses to aid him in arriving at a conclusion as to the existence of a probable
cause.

The executive determination of probable cause is one made during preliminary investigation. It is
a function that properly pertains to the public prosecutor who is given a broad discretion to
determine whether probable cause exists and to charge those whom he believes to have
committed the crime as defined by law and thus should be held for trial. Otherwise stated, such
official has the quasi-judicial authority to determine whether or not a criminal case must be filed
in court. Whether or not that function has been correctly discharged by the public
prosecutor, i.e., whether or not he has made a correct ascertainment of the existence of probable
cause in a case, is a matter that the trial court itself does not and may not be compelled to pass
upon.

The judicial determination of probable cause, on the other hand, is one made by the judge to
ascertain whether a warrant of arrest should be issued against the accused. The judge must satisfy
himself that based on the evidence submitted, there is necessity for placing the accused under
custody in order not to frustrate the ends of justice. If the judge finds no probable cause, the
judge cannot be forced to issue the arrest warrant.
The difference is clear: The executive determination of probable cause concerns itself with
whether there is enough evidence to support an Information being filed. The judicial
determination of probable cause, on the other hand, determines whether a warrant of arrest
should be issued.

BAR EXAM QUESTIONS

Q: b. What does “personal knowledge of the facts and circumstances that the person to be
arrested committed it” mean? (2016 Bar)

A: The phrase “personal knowledge of the facts and circumstances that the person to be arrested
committed it” means that matters in relation to the supposed commission of the crime were
within the actual perception, personal evaluation or observation of the police officer at the scene
of the crime. Thus, even though the police officer has not seen someone actually, fleeing, he
could still make a warrantless arrest if, based on his personal evaluation of the circumstances at
the scene of the crime, he could determine the existence of probable cause that the person sought
to be arrested has committed the crime; however, the determination of probable cause and the
gathering of facts or circumstances should be made immediately after the commission of the
crime in order to comply with the element of immediacy.

Determination of probable cause and issuance of warrant of arrest (2015)

Q: An information for murder was filed against Rapido. The RTC judge, after personally
evaluating the prosecutor's resolution, documents and parties' affidavits submitted by the
prosecutor, found probable cause and issued a warrant of arrest. Rapido's lawyer examined the
rollo of the case and found that it only contained the copy of the information, the submissions of
the prosecutor and a copy of the warrant of arrest. Immediately, Rapido's counsel filed a motion
to quash the arrest warrant for being void, citing as grounds:

1. The judge before issuing the warrant did not personally conduct a searching examination
of the prosecution witnesses in violation of his client's constitutionally-mandated rights;
2. There was no prior order finding probable cause before the judge issued the arrest
warrant.

May the warrant of arrest be quashed on the grounds cited by Rapido's counsel? State your
reason for each ground. (2015 Bar)

A: No, the warrant of arrest may not be quashed based on the grounds cited by Rapido’s counsel.
In the issuance of warrant of arrest, the mandate of the Constitution is for the judge to personally
determine the existence of probable cause. The words “personal determination,” was interpreted
by the Supreme Court in Soliven v. Makasiar (G.R. No. 82585, November 14, 1988) as the
exclusive and personal responsibility of the issuing judge to satisfy himself as to the existence of
probable cause.

What the law requires as personal determination on the part of a judge is that he should not rely
solely on the report of the investigating prosecutor. Thus, personal examination of the
complainant and his witnesses is, thus, not mandatory and indispensable in the determination of
probable cause for the issuance of a warrant of arrest. (People v. Grey, G.R. No. 10109, July 26,
2010)

LANDMARK, RECENT SUPREME COURT DECISIONS

People vs. Tan, G.R. No. 182310, December 9, 2009

People vs. Gabo, G.R. No. 161083, August 3, 2010
AAA vs. Carbonell, G.R. No. 171465, June 8, 2007
Soliven vs. Makasiar, G.R. No. L-82585, L-82827, November 14, 1988
Webb vs. De Leon, G.R. No. 121234, August 23, 1995
Okabe vs. Gutierrez, G.R. No. 150185, May 27, 2004
Tagastason vs. People, G.R. No. 222870, July 18, 2019

V. Where should the arresting officer bring the arrested person with or without a
warrant of arrest? Explain the rule on execution of warrant of arrest.

Under Sec. 3, Article 113 of the Rules of Court, it shall be the duty of the officer executing the
warrant to arrest the accused and to deliver him to the nearest police station or jail without
unnecessary delay.

The rules on execution of warrant of arrest are as follows:

1) When a warrant of arrest is issued by a judge, the warrant is delivered to the proper law
enforcement agency for execution.

The head of the office to whom the warrant of arrest was delivered 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 reasons for its non-execution (Sec. 4, Rule 113, Rules of Court).

2) When making an arrest by virtue of a warrant, the officer shall (a) inform the person to be
arrested of the cause of his arrest, and (b) inform him of the fact that a warrant has been
issued for his arrest. The information need not be made when the person to be arrested (a)
 flees, (b) forcibly resists, or (c) the giving of the information will imperil the arrest (Sec.
7, Rule 113, Rules of Court).
3) The officer need not have the warrant in his possession at the time of the arrest. However,
after the arrest, the warrant shall be shown to him as soon as practicable, if the person
arrested so requires (Sec. 7, Rule 113, Rules of Court).
4) The officer assigned to execute the warrant of arrest has the duty to deliver the person
arrested to the nearest police station or jail without unnecessary delay (Sec. 3, Rule 113,
Rules of Court).

No unnecessary violence

An underlying rule whenever an arrest is made is that 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. 2, Rule 113, Rules of Court).

Authority to summon assistance

It sometimes happens that an officer cannot on his own effectively make the arrest. Hence, the
authority to effect an arrest carries with it an authority to orally summon as many persons as he
deems necessary to assist him in effecting the arrest. Every person summoned by an officer is
required to give the assistance requested provided he can do so without detriment to himself
(Sec. 10, Rule 113, Rules of Court). The duty of the person summoned does not arise when
rendering assistance would cause harm to himself. (Sec. 10, Rule 113, Rules of Court).

When person to be arrested is inside a building

If the person to be arrested is or is reasonably believed to be within any building or enclosure,

the Rules authorize the officer, in order to make an arrest, to break into any building or enclosure
in case he is refused admittance after announcing his authority and purpose (Sec. 11, Rule 113,
Rules of Court). After entering the building or enclosure, he may break out from said place if
necessary to liberate himself from the same place (Sec. 12, Rule 113, Rules of Court).

BAR EXAM QUESTIONS

Q: On his way to the PNP Academy in Silang, Cavite, on board a public transport bus as a
passenger, Police Inspector Masigasig of the Valenzuela Police witnessed an on-going armed
robbery while the bus was traversing Makati. His alertness and training enabled him to foil the
robbery and to subdue the malefactor. He disarmed the felon and while frisking him, discovered
another handgun tucked in his waist. He seized both handguns and the malefactor was later
charged with the separate crimes of robbery and illegal possession of firearm.

Where should Police Inspector Masigasig bring the felon for criminal processing? To Silang,
Cavite where he is bound; to Makati where the bus actually was when the felonies took place; or
back to Valenzuela where he is stationed? Which court has jurisdiction over the criminal cases?
(2013 Bar)

A: Police Inspector Masigasig should bring the felon to the nearest police station or jail in
Makati City where the bus actually was when the felonies took place.

Moreover, where an offense is committed in a public vehicle while in the course of its trip, the
criminal action shall be instituted and tried in the court of any Municipality or territory where
such vehicle passed during its trip, including the place of its departure and arrival. (Sec. 15[b],
Rule 110) Consequently, the criminal case for robbery and illegal possession of firearms can be
filed in Regional Trial Court of Makati City or on any of the places of departure or arrival of the
bus.

VI. What are the duties of the arresting officer? When is the proper time of making an
arrest? What are the instances of a valid warrantless arrest? Explain and give
examples for each.

Under Sec. 3, Article 113 of the Rules of Court, it shall be the duty of the officer executing the
warrant to arrest the accused and to deliver him to the nearest police station or jail without
unnecessary delay.

An arrest may be made on any day and at any time of the day or night. 

A peace officer or a private person may, without a warrant, arrest a person:

1) When, in his presence, the person to be arrested has committed, is actually committing, or
is attempting to commit an offense (in flagrante exception);
2) When an offense has just been committed, and he has probable cause to believe based on
personal knowledge of facts or circumstances that the person to be arrested has
committed it {hot pursuit exception); and
3) 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"
(escapee exception).

A peace officer or a private person may, without a warrant, arrest a person when, in his
presence, the person to be arrested has committed, is actually committing, or is
attempting to commit an offense.
 VII. Explain the following methods of arrest:

a. By officer with 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 of 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

b. By office 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 so to inform him, or when the
giving of such information will imperil the arrest. 

c. By private person:

When making an arrest, a private person shall inform the person to be arrested of the
intention to arrest him and cause 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.

VIII. What are the instances of a valid warrantless arrest? Explain and give examples
for each instance.

A peace officer or a private person may, without a warrant, arrest a person:

4) When, in his presence, the person to be arrested has committed, is actually committing, or
is attempting to commit an offense (in flagrante exception);
5) 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 {hot pursuit exception); and
6) 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"
(escapee exception).

A peace officer or a private person may, without a warrant, arrest a person when, in his
presence, the person to be arrested has committed, is actually committing, or is
attempting to commit an offense.
BAR EXAM QUESTIONS

Warrantless Arrest; Valid Arrest (2017)

Q: Give at least two instances when a peace officer or a private person may make a valid
warrantless arrest. (2017 Bar)

A: Under Section 5, Rule 113, a peace officer or a private person may make a valid warrantless
arrest in the following instances:

1. When, in his presence, the person to be arrested has committed, is actually committing, or
is attempting to commit an offense;
2. When an offense has just been committed, and he has probable cause to believe based on
personal knowledge of facts or circumstances that the person to be arrested has
committed it; and
3. 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.

Warrantless Arrest: Illegal Arrest (2010)

Q: As Cicero was walking down a dark alley one midnight, he saw an "owner-type jeepney"
approaching him. Sensing that the occupants of the vehicle were up to no good, he darted into a
corner and ran. The occupants of the vehicle − elements from the Western Police District − gave
chase and apprehended him. The police apprehended Cicero, frisked him and found a sachet of
0.09 gram of shabu tucked in his waist and a Swiss knife in his secret pocket, and detained him
thereafter. Is the arrest and body- search legal? (2010 Bar)

A: No. The arrest and the body-search were not legal. Cicero’s act of running does not show any
reasonable ground to believe that a crime has been committed or is about to be committed for the
police officers to apprehend him and conduct body search. Hence, the arrest was illegal as it does
not fall under any of the circumstances for a valid warrantless arrest provided in Section 5, Rule
113.

Q: AX swindled RY in the amount P10,000 sometime in mid-2003. On the strength of the sworn
statement given by RY personally to SPO1 Juan Ramos sometime in mid-2004, and without
securing a warrant, the police officer arrested AX. Forthwith the police officer filed with the

City Prosecutor of Manila a complaint for estafa supported by RY’s sworn statement and other
documentary evidence. After due inquest, the prosecutor filed the requisite information with the
MM RTC. No preliminary investigation was conducted either before or after the filing of the
information and the accused at no time asked for such an investigation. However, before
arraignment, the accused moved to quash the information on the ground that the prosecutor
suffered from a want of authority to file the information because of his failure to conduct a
preliminary investigation before filing the information, as required by the Rules of Court.

a. Is the warrantless arrest of AX valid?

A: No. The warrantless arrest is not valid because the alleged offense has not just been
committed. The crime was allegedly committed one year before the arrest. (Sec. 5(b), Rule 113)

Q: A was killed by B during a quarrel over a hostess in a nightclub. Two days after the incident,
and upon complaint of the widow of A, the police arrested B without a warrant of arrest and
searched his house without a search warrant.

a. Can the gun used by B in shooting A, which was seized during the search of the house of
B, be admitted in evidence?

b. b. Is the arrest of B legal?

A:

a. No. The gun seized during the search of the house of B without a search warrant is not
admissible in evidence (Sec. 2 and 3[2], Art. III, 1987 Constitution). Moreover, the
search was not an incident to a lawful arrest of a person under Sec. 13, Rule 126.
b. No. A warrantless arrest requires that the crime has in fact just been committed and the
police arresting has personal knowledge of facts that the person to be arrested has
committed it (Sec. 5, Rule 113). Here, the crime has not just been committed since a
period of two days had already lapsed, and the police arresting has no such personal
knowledge because he was not present when the incident happened. (Go v. Court of
Appeals, G.R. No. 101837, February 11, 1992)

Q: FG was arrested without a warrant by policemen while he was walking in a busy street. After
the preliminary investigation, he was charged with rape and the corresponding information was
filed in the RTC. On arraignment, he pleaded not guilty. Trial on the merits ensued. The court
rendered judgment convicting him. On appeal, FG claims that the judgment is void because he
was illegally arrested. If you were the Solicitor General, counsel, for the People of the
Philippines, how would you refute said claim? (2000 Bar)

A: I would assert that any objection to the illegality of the arrest of the accused without a warrant
is deemed waived when he pleaded not guilty at the arraignment without raising the question. It
is too late to complain about a warrantless arrest after trial is commenced and completed and a
judgment of conviction rendered against the accused. (People v. Cabiles, G.R. No. 112035,
January 16, 1998)

Q: Boy Maton, a neighborhood tough guy, was arrested by a police officer on suspicion that he
was keeping prohibited drugs in his clutch bag. When Boy Maton was searched immediately
after the arrest, the officer found and recovered 10 sachets of shabu neatly tucked in the inner
linings of the clutch bag. At the time of his arrest, Boy Maton was watching a basketball game
being played in the town plaza, and he was cheering for his favorite team. He was subsequently
charged with illegal possession of dangerous drugs, and he entered a plea of not guilty when he
was arraigned. During the trial, Boy Maton moved for the dismissal of the information on the
ground that the facts revealed that he had been illegally arrested. He further moved for the
suppression of the evidence confiscated from him as being the consequence of the illegal arrest,
hence, the fruit of the poisonous tree. The trial court, in denying the motions of Boy Maton,
explained that at the time the motions were filed Boy Maton had already waived the right to raise
the issue of the legality of the arrest. The trial court observed that, pursuant to the Rules of Court,
Boy Maton, as the accused, should have assailed the validity of the arrest before entering his plea
to the information. Hence, the trial court opined that any adverse consequence of the alleged
illegal arrest had also been equally waived.

Comment on the ruling of the trial court. (2017 Bar)

A: The ruling of the court denying the motion for dismissal of the information on the ground of
illegal arrest is proper. Under Sec. 9, Rule 117, the accused’s failure to file a motion to quash
before plea is a waiver of the objection to lack of personal jurisdiction or of the objection to an
illegal arrest. Here, Boy Maton entered a plea without filing a motion to quash on the ground of
lack of personal jurisdiction. Hence, he is deemed to have waived the ground of illegal arrest
which is subsumed under lack of personal jurisdiction.

However, the ruling denying the motion to suppress evidence is not correct. The Supreme Court
has held that a waiver of an illegal, warrantless arrest does not carry with it a waiver of the
inadmissibility of evidence seized during an illegal warrantless arrest (People v. Racho, G.R. No.
186529, August 3, 2010). A waiver of an illegal arrest is not a waiver of an illegal search. The
Constitution provides that evidence seized in violation of the right against illegal search is
inadmissible in evidence. Hence, the evidence was seized was virtue of an illegal search
considering that the arrest was illegal, rendering it inadmissible in evidence.

Q: Under Section 5, Rule 113, a warrantless arrest is allowed when an offense has just been
committed and the peace officer has probable cause to believe, based on his personal knowledge
of facts and circumstances, that the person to be arrested has committed it. A policeman
approaches you for advice and asks you how he will execute a warrantless arrest against a
murderer who escaped after killing a person. The policeman arrived two (2) hours after the
killing and a certain Max was allegedly the killer per information given by a witness. He asks
you to clarify the following:

a. How long after the commission of the crime can he still execute the warrantless arrest?

A: In executing a warrantless arrest under Section 5, Rule 113, the Supreme Court held that the
requirement that an offense has just been committed means that there must be a large measure of
immediacy between the time the offense was committed and the time of the arrest (Pestilos v.
Generoso, G.R. No. 182601, November 10, 2014). If there was an appreciable lapse of time
between the arrest and the commission of the crime, a warrant of arrest must be secured. In any
case, personal knowledge by the arresting officer is an indispensable requirement to the validity
of a valid warrantless arrest.

LANDMARK, RECENT SUPREME COURT DECISIONS

People vs. Garcia, 529 SCRA 519, August 8, 2007

People vs. Racko, G.R. No.186529, August 3, 2010
People vs. Laguio, G.R. No. 128587, March 16, 2007
Zalameda vs. People, G.R. No. 183656, September 4, 2009

IX. What is the effect of an admission to bail on the objections to an illegal arrest?

An application for or admission to bail shall not bar the accused from challenging the validity of
his arrest or the legality of the warrant issued therefor, or from assailing the regularity or
questioning the absence of a preliminary investigation of the charge against him, provided that
he raises them before entering his plea. The court shall resolve the matter as early as practicable
but not later than the start of the trial of the case.

BAR EXAM QUESTIONS

Q: RP and State XX have a subsisting Extradition Treaty. Pursuant thereto RP’s Secretary of
Justice (SoJ) filed a Petition for Extradition before the MM RTC alleging that Juan Kwan is the
subject of an arrest warrant duly issued by the proper criminal court of State XX in connection
with a criminal case for tax evasion and fraud before his return to RP as a balikbayan. Petitioner
prays that Juan be extradited and delivered to the proper authorities of State XX for trial, and that
to prevent Juan’s flight in the interim, a warrant for his immediate arrest be issued. Before the
RTC could act on the petition for extradition, Juan filed before it an urgent motion, in sum
praying (1) that SoJ’s application for an arrest warrant be set for hearing and (2) that Juan be
allowed to post bail in the event the court would issue an arrest warrant. Should the court grant
or deny Juan’s prayer? Reason. (2004 Bar)
A: The Court should grant Juan’s prayer. An extradition proceeding, while ostensibly
administrative, bears all earmarks of a criminal process. However, while our extradition law does
not provide for the grant of bail to an extraditee, there is no provision prohibiting him or her
from filing a motion for bail, a right to due process under the Constitution.

In light of the recent developments in international law, where emphasis is given to the worth of
the individual and the sanctity of human rights, an extraditee may be allowed to post bail.

Q: Paz was awakened by a commotion coming from a condo unit next to hers. Alarmed, she
called up the nearby police station. PO1 Remus and P02 Romulus proceeded to the condo unit
identified by Paz. PO 1 Remus knocked at the door and when a man opened the door, PO1
Remus and his companions introduced themselves as police officers. The man readily identified
himself as Oasis Jung and gestured to them to come in. Inside, the police officers saw a young
lady with her nose bleeding and face swollen. Asked by P02 Romulus what happened, the lady
responded that she was beaten up by Oasis Jung. The police officers arrested Oasis Jung and
brought him and the young lady back to the police station. PO1 Remus took the young lady's
statement who identified herself as AA. She narrated that she is a sixteen-year-old high school
student; that previous to the incident, she had sexual intercourse with Oasis Jung at least five
times on different occasions and she was paid P5,000.00 each time and it was the first time that
Oasis Jung physically hurt her. P02 Romulus detained Oasis Jung at the station's jail. After the
inquest proceeding, the public prosecutor filed an information for Violation of R.A. No. 9262
(The VAWC Law) for physical violence and five separate informations for violation of R.A. No.
7610 (The Child Abuse Law). Oasis Jung's lawyer filed a motion to be admitted to bail but the
court issued an order that approval of his bail bond shall be made only after his arraignment.

a. Did the court properly impose that bail condition?

A: No. The court did not properly impose that bail condition. The Revised Rules of Criminal
Procedure do not require the arraignment of the accused as prerequisite to the conduct of
hearings in the bail petition. A person is allowed to file a petition for bail as soon as he is
deprived of his liberty by virtue of his arrest or voluntary surrender. An accused need not wait
for his arraignment before filing the bail petition. (Serapio v. Sandiganbayan, G.R. No. 149116,
January 2, 2003)

Moreover, the condition that the approval of bail bonds shall be made only after arraignment
would place the accused in a position where he has to choose between: (1) filing a motion to
quash (the Information) and thus delay his released on bail because until his motion to quash can
be resolved, his arraignment cannot be held; and (2) foregoing the filing of a motion to quash
(the Information) so that he can be arraigned at once and thereafter be released on bail. (Lavides
v. Court of Appeals, G.R. No. 129670, February 1, 2000)

b. After his release from detention on bail, can Oasis Jung still question the validity of his arrest?
(2015 Bar)
A: Yes. Oasis Jung can still question the validity of his arrest even after his release from
detention on bail. Under Sec. 26, Rule 114, an application for or admission to bail shall not bar
the accused from challenging the validity of his arrest or the legality of the warrant issued
therefor, or from assailing the regularity or questioning the absence of a preliminary
investigation of a charge against him, provided that he raises them before entering his plea.

LANDMARK, RECENT SUPREME COURT DECISIONS

Chua vs. Court of Appeals, G.R. No. 140842, April 12, 2007
Okabe vs. Gutierrez, 429 SCRA 685
Borlongan vs. Pena, G.R. No. 143591, May 5, 2010
Government of Hong Kong Special Administrative Region v. Olalia, G.R. No. 153675, April 19,
2007

X. When is there a waiver of an objection to an illegal of arrest?

The right to question the validity of an arrest may be waived if the accused by counsel, fails to
object to its validity before arraignment.

Objections involving a warrant of arrest or the procedure for the acquisition by the court of
jurisdiction over the person of the accused must be made before he enters his plea; otherwise, the
objection is deemed waived.

LANDMARK, RECENT SUPREME COURT DECISIONS

Lapi vs. People, G.R. No. 210731, February 13, 2019

XI. What are the remedies of a person illegally or unlawfully arrested?

The remedy is to petition the court for a Writ of Habeas Corpus or a Writ of Amparo.

XII. Who are the person that are not subject to arrest?
Under the 1987 Constitution, a Senator or a Member of the House of Representatives shall be
privileged from arrest while the Congress is in session, in all offenses punishable by not more
than six years imprisonment.

LANDMARK, RECENT SUPREME COURT DECISIONS

Osmena vs. Pendatun, G.R. No. L-17144, October 26, 1960

XIII. What is the nature of search warrant? Distinguish search warrant from warrant of
arrest.

A search warrant is an order in writing issued in the name of the People of the Philippines,
signed by a judge and directed to a peace officer, commanding him to search for personal
property described therein and bring it before the court (Sec. 1, Rule 126, Rules of Court).

A search warrant is not a criminal action nor does it represent a commencement of a criminal
prosecution even if it is entitled like a criminal action. It is not a proceeding against a person but
is solely for the discovery and to get possession of personal property. It is a special and peculiar
remedy, drastic in nature, and made necessary because of public necessity. It resembles in some
respects with what is commonly known as John Doe proceedings.

A search warrant is a legal process which has been likened to a writ of discovery employed by
the state to procure relevant evidence of a crime. It is in the nature of a criminal process
restricted to cases of public prosecutions. A search warrant is a police weapon, issued under the
police power.

It has no relation to a civil process. It is not a process for adjudicating civil rights or maintaining
mere private rights. It concerns the public at large as distinguished from ordinary civil action
involving the rights of private persons and may only be applied for the furtherance of public
prosecutions.

The power to issue search warrants is exclusively vested with the trial judges in the exercise of
their judicial functions.

Arrest distinguished from search and seizure

 1) The rules on arrest are concerned with the seizure of a person. It involves the taking of a
person in custody. A search may follow an arrest but the search must be incident to a
lawful arrest.

The rules on searches and seizures cover a wider spectrum of matters on the search of
both persons and places and the seizure of things found therein.

2) A probable cause to arrest does not necessarily involve a probable cause to search and
vice versa. Probable cause to arrest involves a different determination from probable
cause to search. In order to determine probable cause to arrest, the judge (not the
prosecutor) must have sufficient facts in his hands that would tend to show that a crime
has been committed and that a particular person committed it. Probable cause to search
requires facts to show that particular things connected with a crime are found in a specific
location.
3) The judge is not necessarily required to make a personal examination before issuing a
warrant of arrest (Borlon- gan v. Pena, G.R. No. 143591, May 5, 2010, citing Soliven v.
Makasiar, 167 SCRA 293). The judge must, before issuing the search warrant, personally
examine the complainant and the witnesses he may produce in determining probable
cause (Sec. 5, Rule 126, Rules of Court; Santos v. Pryce Gases, G.R. No. 165122,
November 23,2007).
4) An arrest may be made on any day and at any time of the day or night (Sec. 6, Rule 113,
Rules of Court). A search warrant is generally served in the day time, unless there be a
direction in the warrant that it may be served at any time of the day or night (Sec. 9, Rule
126, Rules of Court).

LANDMARK, RECENT SUPREME COURT DECISIONS

United Laboratories, Inc. v. Isip, 461 SCRA 574

Skechers, USA v. Inter Pacific Industrial Trading Corporation, 509 SCRA 395

XIV. What are the requisites for issuance of a search warrant? What is the period of
validity of a search warrant?

The following are the requisites for a search warrant:

1. There must be probable cause in connection with one specific offense;

2. The presence of probable cause is to be determined by the judge personally;
3. The determination by the judge must be made after an examination under oath or
affirmation of the complainant and the witnesses he may produce; and
4. The warrant must specifically describe the place to be searched and the things to be
seized which may be anywhere in the Philippines.
A search warrant shall be valid for ten (10) days from its date. Thereafter it shall be void.

BAR EXAM QUESTIONS

Q: A PDEA asset/informant tipped the PDEA Director Shabunot that a shabu laboratory was
operating in a house at Sta. Cruz, Laguna, rented by two (2) Chinese nationals, Ho Pia and Sio
Pao. PDEA Director Shabunot wants to apply for a search warrant, but he is worried that if he
applies for a search warrant in any Laguna court, their plan might leak out.

a. Where can he file an application for search warrant?

A: PDEA Director may file an application for search warrant in any court within the judicial
region where the crime was committed. (Sec. 2[b], Rule 126)

b. What documents should he prepare in his application for search warrant?

A: He should prepare a petition for issuance of a search warrant and attach therein sworn
statements and affidavits.

c. Describe the procedure that should be taken by the judge on the application.

A: The judge must, before issuing the warrant, examine personally in the form of searching
questions and answers, in writing and under oath, the complainant and the witnesses he may
produce on facts personally known to them and attach to the record their sworn statements,
together with the affidavits submitted (Sec. 5, Rule 126). If the judge is satisfied of the existence
of facts upon which the application is based or that there is probable cause to believe that they
exist, he shall issue the warrant, which must be substantially in the form prescribed by the Rules.
(Sec. 6, Rule 126)

d. Suppose the judge issues the search warrant worded in this way:

PEOPLE OF THE PHILIPPINES Plaintiff

-versus-
Ho Pia and Sio Pao, Accused.

Criminal Case No.

007 for Violation of R.A. 9165

xx
TO ANY PEACE OFFICER Greetings:

It appearing to the satisfaction of the undersigned after examining under oath PDEA Director
Shabunot that there is probable cause to believe that violations of Section 18 and 16 of R.A.
9165 have been committed and that there are good and sufficient reasons to believe that Ho Pia
and Sio Pao have in their possession or control, in a two (2) door apartment with an iron gate
located at Jupiter St., Sta. Cruz, Laguna, undetermined amount of "shabu" and drug
manufacturing implements and paraphernalia which should be seized and brought to the
undersigned.

You are hereby commanded to make an immediate search, at any time in the day or night, of the
premises above described and forthwith seize and take possession of the abovementioned
personal property, and bring said property to the undersigned to be dealt with as the law directs.

Witness my hand this 1st day of March, 2012.

(signed) Judge XYZ

Cite/enumerate the defects, if any, of the search warrant.

A:

a. The search warrant failed to particularly describe the place to be searched and the things
to be seized (Sec. 4, Rule 126).
b. The search warrant commanded the immediate search, at any time in the day or night.
The general rule is that a search warrant must be served in the daytime (Sec. 8, Rule 126),
or that portion of the twenty- four hours in which a man’s person and countenance are.
By way of exception, a search warrant may be made at night when it is positively
asserted in the affidavit that the property is on the person or in the place ordered to be
searched (Alvares v. CFI of Tayabas, G.R. No. L-45358, January 29, 1937). There is no
showing that the exception applies.

e. Suppose the search warrant was served on March 15, 2012 and the search yielded the
described contraband and a case was filed against the accused in RTC, Sta. Cruz, Laguna and
you are the lawyer of Sio Pao and Ho Pia, what will you do?

A: If I were the lawyer of Sio Pao and Ho Pia, I would file a Motion to Quash the search warrant
for having been served beyond its period of validity (Sec. 14, Rule 126). A search warrant shall
be valid only for ten days from its date. Thereafter, it shall be void. (Sec. 10, Rule 126)

f. Suppose an unlicensed armalite was found in plain view by the searchers and the warrant was
ordered quashed, should the court order the return of the same to the Chinese nationals? (2012
Bar)

A: No, the Court should not order the return of the unlicensed armalite because it is contraband
or illegal per se (PDEA v. Bodett, G.R. No. 196390, September 28, 2011). The possession of an
unlicensed armalite found in plain view is mala prohibita. The same be kept in custodia legis.
Particularity of place to be searched and things to be seized

Q: The search warrant authorized the seizure of "undetermined quantity of shabu." During the
service of the search warrant, the raiding team also recovered a kilo of dried marijuana leaves
wrapped in newsprint. The accused moved to

suppress the marijuana leaves as evidence for the violation of Section 11 of the Comprehensive
Dangerous Drugs Act of 2002 since they were not covered by the search warrant. The State
justified the seizure of the marijuana leaves under the "plain view" doctrine. There was no
indication of whether the marijuana leaves were discovered and seized before or after the seizure
of the shabu. If you are the judge, how would you rule on the motion to suppress? (2008 Bar)

A: The motion to suppress filed by the accused should be granted. The search warrant violates
the constitutional and statutory requirement that it should particularly describe the person or
things to be seized (Sec. 2, Art. 3, 1987 Constitution; Sec. 2, Rule 126). The “plain view”
doctrine cannot be invoked because the marijuana leaves were wrapped in newsprint. Besides
the marijuana leaves are not the subject of the search warrant.

Q: Police operatives of Western Police District, Philippine National Police, applied for a search
warrant in the RTC for the search of the house of Juan Santos and the seizure of an undetermined
amount of shabu. The team arrived at the house of Santos but failed to find him there. Instead,
the team found Roberto Co. The team conducted a search in the house of Santos in the presence
of Roberto Co and barangay official and found ten (10) grams of shabu. Roberto Co was charged
in court with illegal possession of ten grams of shabu. Before his arraignment, Roberto Co filed a
motion to quash the warrant on the following grounds (a) it was not the accused named in the
search warrant and (b) the warrant does not prescribe the article to be seized with sufficient
particularity. Resolve the motion with reasons. (2005 Bar)

A: The motion to quash should be denied. The name of the person in the search warrant is not
important. It is not even necessary that a particular person be implicated (Mantaring v. Roman,
A.M. No. RTJ-93- 904, February 28, 1996), so long as the search is conducted in the place where
the search warrant will be served. Moreover, describing the shabu in an undetermined amount is
sufficiently particular. (People v. Tee, G.R. Nos. 140546-47, January 20, 2003)

Q: A search warrant was issued for the purpose of looking for unlicensed firearms in the house
of Ass-asin, a notorious gun for hire. When the police served the warrant, they also sought the
assistance of barangay tanods who were assigned to look at other portions of the premises around
the house. In a nipa hut thirty (30) meters away from the house of Ass-asin, a Barangay tanod
came upon a kilo of marijuana that was wrapped in newsprint. He took it and this was later used
by the authorities to charge Ass-asin with illegal possession of marijuana. Ass-asin objected to
the introduction of such evidence claiming that it was illegally seized. Is the objection of Ass-
asin valid? (2014 Bar)

A: The objection is valid. The search warrant specifically designates or describes the house as
the place to be searched. Incidentally, the marijuana was seized by the Barangay Tanods thirty
(30) meters away from the house of the accused. Since the confiscated items were found in a
place other than the one described in the search warrant, it can be considered as fruits of an
invalid warrantless search, the presentation of which as an evidence is a violation of petitioner’s
constitutional guaranty against unreasonable searches and seizure (Castillo v. People, G.R. No.
185128, January 30, 2012). Besides, the search is also illegal because the marijuana confiscated
in the nipa hut was wrapped in a newsprint. Therefore, the same cannot be considered validly
seized in plain view. (Miclat v. People, G.R. No. 176077, August 31, 2011)

LANDMARK, RECENT SUPREME COURT DECISIONS

Santos vs. Pryce Gases, G.R. No. 165122, November 23, 2007
People vs. Tuan, G.R. No. 176066, August 11, 2010

XV. Explain the following:

a. Probable cause for issuance of search warrant.

Probable cause for search warrant means such facts and circumstances which would lead
a reasonably discreet and prudent man to believe that an offense has been committed and
that the objects sought in connection with the offense are in the place to be searched.

b. Personal examination by Judge of the applicant and witness

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 the witnesses he
may produce on facts personally known to them and attach to the record their sworn
statements, together with the affidavits submitted.

c. Particularity description of the place to be searched and persons and things to be seized.

A description of the place to be searched is sufficient if the officer with the warrant can,
with reasonable effort, ascertain and identify the place intended and distinguish it from
other places in the community. Any designation or description that points out the place to
the exclusion of all others, and on inquiry leads the officers unerringly to it, satisfies the
constitutional requirement.

Moreover, in the determination of whether a search warrant describes the premises to be

searched with sufficient particularity, it has been held that the executing officer's prior
knowledge as to the place intended in the warrant is relevant. This would seem to be
especially true where the executing officer is the affiant on whose affidavit the warrant
had been issued, and when he knows that the judge who issued the warrant intended the
compound described in the affidavit.
d. What are the personal properties that can be a subject of search and seizure?

The personal property that can be a subject of search and seizure are:

1. Personal property subject of the offense;

2. Personal property stolen or embezzled and other proceeds, or fruits of the offense;
or
3. Personal property used or intended to be used as a means of committing an
offense.

e. Where is an application for search warrant made?

1. As a rule, an application for a search warrant shall be filed before any court within
whose territorial jurisdiction a crime was committed (Sec. 2[a], Rule 126, Rules of
Court).

2. There are exceptions to the above general rule. These are:

(a) The application may be made before any court within the judicial region
where the crime was commit- ted if the place of the commission of the crime is
known (Sec. 2[b], Rule 126, Rules of Court).

(b) The application may also be filed before any court within the judicial region
where the warrant shall be enforced (Sec. 2[b], Rule 126, Rules of Court).

(c) The application shall be made only in the court where the criminal action is
pending, if the criminal action has already been filed (Sec. 2, last paragraph, Rule
126, Rules of Court).

f. What are the remedies from an unlawful search and seizure?

A motion to quash a search warrant and/or to suppress evidence obtained by virtue of the
warrant may be filed and acted upon only by the court where the action has been
instituted.

If no criminal action has been instituted, the motion may be filed in and resolved by the
court that issued the search warrant. However, if such court failed to resolve the motion
and a criminal case is subsequently filed in another court, the motion shall be resolved by
the latter court.
XVI. Explain the following exceptions to the requirement of search warrant.

a. Search incidental to a lawful arrest.

The application of the above rule presupposes that the person searched was previously
arrested lawfully. Hence, a person illegally arrested cannot be validly searched without a
warrant under this provision. For an arrest to be lawful, the arrest may either be by virtue
of a warrant lawfully procured or by virtue of a warrantless arrest authorized under Sec. 5
of Rule 113 of the Rules of Court and other applicable provisions such as Sec. 13 of the
same rule.

b. Plainview situation.

The plain view doctrine permits an officer, while lawfully engaged in an activity and
lawfully present in a particular place, to seize an apparently illicit object without first
obtaining a warrant authorizing him to do so. It is founded on a common sense rule that
when a police officer has seen or observed an object in 'plain view,' to require the officer
to secure a warrant would be to engage in a needless exercise because failure to seize the
object once observed might involve danger to the public and to the officer. The rule
allows a law enforcement officer to make a seizure without obtaining a search warrant if
evidence of criminal activity or the product of a crime can be seen without entry or
search.

c. Consented search.

The consent to a warrantless search must be voluntary, that is, it must be unequivocal,
specific, and intelligently given, uncontaminated by any duress or coercion. Consent to a
search is not to be lightly inferred, but must be shown by clear and convincing evidence.
It is the State which has the burden of proving, by clear and positive testimony, that the
necessary consent was obtained and that it was freely and voluntarily given

d. Search of moving vehicle.

Highly regulated by the government, the vehicle's inherent mobility re-

duces expectation of privacy especially when its transit
in public thoroughfares furnishes a highly reasonable suspicion amounting to probable
cause that the occupant committed a criminal activity;

e. Stop and frisk situation

A valid "stop" by an officer requires that he has a reasonable and articulable belief that
criminal activity has happened or is about to happen. The "frisk" made after the "stop"
 must be done because of a reasonable belief that the person stopped is in possession of a
weapon that will pose a danger to the officer and others. The "frisk" must be a mere pat
down outside the person's outer garment and not unreasonably intrusive.

f. Check points; body checks in airport

Searches conducted in checkpoints are valid for as long as they are warranted by
exigencies of public order and are conducted in a way least intrusive to motorists. For as
long as the vehicle is neither searched nor its occupants subjected to a body search, and
the inspection of a vehicle is limited to a visual search, said routine checks cannot be
regarded as violative of an individual's right against unreasonable searches.

Searches and seizures are ordinarily unreasonable in the absence of individualized

suspicion of wrongdoing. However, because administrative searches primarily ensure
public safety instead of detecting criminal wrongdoing, they do not require individual
suspicion. Where the risk to public safety is substantial and real, blanket suspicionless
searches calibrated to the risk may rank as "reasonable." In particular, airport searches
have received judicial sanction essentially because of the magnitude and pervasiveness of
the danger to the public safety and the overriding concern has been the threat of death or
serious bodily injury to members of the public posed by the introduction of inherently
lethal weapons or bombs.

g. Enforcement of custom laws.

It has been traditionally understood that persons exercising police authority under the
customs law may effect search and seizure without a search warrant in the enforcement of
customs laws.

LANDMARK, RECENT SUPREME COURT DECISIONS

People vs. Nunez, G.R. No. 177148, June 30, 2009

Yao, Sr. v. People, G.R. No. 168306, June 19,2007
Kho v. Lanzanas, 489 SCRA 445
Roan v. Gonzales, 145 SCRA 687).
People v. Vinecario, G.R. No. 141137, January 20

XVII. Explain the rules on the following:

a. Receipt for the property seized.

The officer seizing property under the warrant must give a detailed receipt for the same to
the lawful occupant of the premises in whose presence the search and seizure were made,
or in the absence of such occupant, must, in the presence of at least two witnesses of
sufficient age and discretion residing in the same locality, leave a receipt in the place in
which he found the seized property. 

b. Delivery of property and inventory of the court.

(a) The officer must forthwith deliver the property seized to the judge who issued the
warrant, together with a true inventory thereof duly verified under oath.

(b) Ten (10) days after issuance of the search warrant, the issuing judge shall ascertain if
the return has been made, and if none, shall 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 shall ascertain whether section 11 of this Rule has been complained with and
shall require that the property seized be delivered to him. The judge shall see to it that
subsection (a) hereof has been complied with.

(c) The return on the search warrant shall be filed and kept by the custodian of the log
book on search warrants who shall enter therein the date of the return, the result, and
other actions of the judge.

A violation of this section shall constitute contempt of court.