CHAPTER 5
Arrest and Search Warrant
OBJECTIVES:
• To know the process of proper execution of
warrant of arrest and search warrant
• To be knowledgeable in different rules and
regulation in execution of warrant of arrest
Arrest
Arrest refers to the taking of the person into custody in order that he may make to
answer for the commission of the crime.
The importance of arrest in administration of CJS
Arrest is important in the administration of
criminal justice system if the accused is not arrested,
the court may not acquire jurisdiction over his person
unless the person voluntarily surrenders himself to the
authorities.
Probable Cause in Effecting Arrest
Probable cause with respect to arrest is such a
fact and circumstances which would lead a reasonable
discreet and prudent man to believe that an offense has been committed by the person
sought to be arrested.
Search Warrant
A search warrant is an order in writing issued in the name of the people of the
Philippines signed by the judge and directed to the peace officer, commanding him to
search for personal property and bring it before the court
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Personal Properties to be seized
The following are the properties to be seized:
1. Subject of the offense:
2. Stolen or embezzled and other proceeds, fruits of the offense ;
3. Used or intended to be used as the means of the commission of the offense.
General Rules in effecting an arrest
The general rules in effecting an arrest is simply to make an arrest only when there
is a warrant
1. For the protection of the person making the arrest in order not to be
charged criminally for violation of Art. 124 or Art. 125 of the R.P.C and
other related penal laws
2. Also to preclude the filing of any civil and administrative charges against
the arresting officer.
Exemption to the General Rule
The exemption to the General Rule is provided by the Revised Rules on Criminal
Procedures.
Rule 113, Section 5 Warrantless Arrest
A police officer or a private person may arrest without a warrant.
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.
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Time in Serving the Warrant of Arrest
Sec. 6. Time of making arrest.
An arrest may be made on any day and at any time of the day or night.
Methods of Arrest with Warrant and Without Warrant and by Arresting of Private Individual
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
Legal Aspect in Arresting without Warrant an Escape Prisoner
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.
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The general rule in effecting search and seizure
Just like arrest, the general rule in effecting a search and seizure is only by virtue of
validity issued Search Warrant.
Reasons:
a. For the protection of the searcher not to be charged of a crime of theft and
robbery.
b. And of any civil and administrative liabilities
Legal Grounds in Executing Search and Seizure base on Rule 126 on Rules of the Court
Section 2. Court where application for search warrant shall be filed. — An
application for search warrant shall be filed with the following:
a) Any court within whose territorial jurisdiction a crime was committed.
b) For compelling reasons stated in the application, any court within the judicial
region where the crime was committed if the place of the commission of the crime
is known, or any court within the judicial region where the warrant shall be
enforced.
However, if the criminal action has already been filed, the application shall only be made
in the court where the criminal action is pending. (n)
Section 3. Personal property to be seized. — A search warrant may be issued for
the search and seizure of personal property:
(a) Subject of the offense;
(b) Stolen or embezzled and other proceeds, or fruits of the offense; or
(c) Used or intended to be used as the means of committing an offense. (2a)
Section 4. Requisites for issuing search warrant. — A search warrant shall not
issue except upon probable cause in connection with one specific offense 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 searched and the things to be seized which may be anywhere in the Philippines. (3a)
Section 5. Examination of complainant; record. — 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. (4a)
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Section 6. Issuance and form of search warrant. — 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 these Rules. (5a)
Section 7. Right to break door or window to effect search. — The officer, if refused
admittance to the place of directed search after giving notice of his purpose and authority,
may break open any outer or inner door or window of a house or any part of a house or
anything therein to execute the warrant or liberate himself or any person lawfully aiding
him when unlawfully detained therein. (6)
Section 8. Search of house, room, or premise to be made in presence of two
witnesses. — No search of a house, room, or any other premise shall be made except in
the presence of the lawful occupant thereof or any member of his family or in the absence
of the latter, two witnesses of sufficient age and discretion residing in the same locality.
(7a)
Section 9. Time of making search. — The warrant must direct that it be served in
the day time, unless the affidavit asserts that the property is on the person or in the place
ordered to be searched, in which case a direction may be inserted that it be served at any
time of the day or night. (8)
Section 10. Validity of search warrant. — A search warrant shall be valid for ten
(10) days from its date. Thereafter it shall be void. (9a)
Section 11. 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. (10a)
Section 12. Delivery of property and inventory thereof to court; return and
proceedings thereon. — (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.
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(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.
Exemption to the Rule
Just like Warrant of Arrest, the rule as well as lines of jurisprudence has provided
for a number of exemptions to the general rule on Search Warrant to wit:
a. Seizure of Evidence in Plain View
b. Search of a Moving Vehicle
c. Consented Warrantless Search
d. Customs Search;
e. Stop and Frisk Search;
f. Exigent and emergency circumstances
Plain View Doctrine
In the United States, the plain view doctrine is an exception to the Fourth
Amendment's warrant requirement that allows an officer to seize evidence and
contraband that are found in plain view during a lawful observation.
What do you call this Rule not admitting this unlawfully obtained evidence?
This rule not admitting any unlawfully obtained evidence against the accused is
referred to by the Supreme Court as “The Exclusionary Rule “because the same is said
to be “The Fruit of the Poisonous Tree “
Reference:
http://criminal-
procedure.blogspot.com/2009/05/rule-
113-arrest.html
https://www.lawphil.net/courts/rul
es/rc_110-127_crim.html#top Video Link:
Philippine Criminal Justice https://youtu.be/Z89w31uX-b0
System (Second Edition) By Atty.
https://youtu.be/fWgh9ks2UM4
Ramil Gabao
https://youtu.be/Gq_RA_-tzQY
