A police primer

By Sen. MIRIAM DEFENSOR SANTIAGO

(Speech at the Philippine National Police Headquarters, Camp Crame, on March 13, 2006.)

UNDER the Constitution, the general rule is that an arrest or search can be made, only if it is authorized by a warrant issued by a judge. However, there are certain exceptions when a warrantless arrest and a warrantless search could be conducted by the police.

Warrantless arrest

Under the Rules of Court, Rule 113, Section 5, a warrantless arrest, also known as "citizen’s arrest," is lawful under three circumstances:

1. When, in the presence of the policeman, the person to be arrested has committed, is actually committing, or is attempting to commit an offense. This is the "in flagrante delicto" rule.

2. When an offense has just been committed, and he has probable cause to believe, based on personal knowledge of facts or circumstances, that the person to be arrested has committed it. This is the "hot pursuit" arrest rule.

3. When the person to be arrested is a prisoner who has escaped from a penal establishment.

This rule allowing warrantless arrest is strictly construed. If the warrantless arrest is unlawful at the beginning, it cannot be made lawful later, by anything that happens or is discovered afterwards.

"In Flagrante Delicto" Rule

The term "in flagrante delicto" means "in the very act of committing a crime." In other words, the suspect was caught red-handed. To be caught in flagrante delicto necessarily implies positive identification by the eyewitness. The accused should be caught immediately after the commission of the act.

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.

The police are authorized to make a warrantless arrest at any time or place, under the doctrine of continuing crime. One example of a continuing crime is rebellion, for which a warrantless arrest is valid at any time or place. By contrast, inciting to sedition is not a continuing crime, and cannot be the subject of a warrantless arrest.

‘Hot pursuit’ arrest rule

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.

Accordingly, the following are lawful warrantless arrests:

* The police had earlier conducted surveillance of the accused.

* The policeman sees the offense, although at a distance.

* The policeman hears the disturbance created by the offense.

* There is probable cause of a communist threat.

* There is probable cause of a national security threat.

* Shoplifting, when the shopkeeper detains the suspect for the time necessary for a reasonable investigation.

* Direct contempt committed in the presence of the court, upon the oral discretion of the presiding judge.

* Vagrancy

* Frisking the person, or any intrusions short of an arrest, when circumstances combine to establish probable cause and the incidental search reveals that the solid object is a revolver. This is known as the "Terry stop."

* Public intoxication.

* Driving while intoxicated.

* Investigatory stop of motor vehicle, based on articulable and reasonable suspicion that the motorist is unlicensed, the automobile is not registered, or either the vehicle or an occupant is otherwise subject to seizure for violation of law. This is known as the "articulable and reasonable suspicion" standard.

* Mentally disabled persons on emergency grounds.

By contrast, the following are unlawful warrantless arrests:

* Arrest on the verbal report of a witness.

* Arrest based on raw intelligence information.

* Arrest based on unreliable hearsay information.

* Arrest based on unreasonable suspicion.

If a warrantless arrest is made and eventually the court finds the arrested persons to be innocent and acquits them, are the arresting officers liable? The answer is no.

Warrantless search

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 AntiWiretapping Law provides that an illegal wiretap is inadmisslble 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 stopand-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 vehicle search. The vehicle itself should not be searched, and its occupants should not be subjected to a body search.

The following are lawful warrantless searches:

* Warrantless search incidental to a lawful arrest recognized under the Rules of Court, Rule 126, Section 12, and by prevailing jurisprudence;

* Where consent is given to the 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.

The rule is that the object must be open to the eye and hand, and its discovery was not evident. If the object seized was inside a closed package, and was not in plain view, can the policeman make a warrantless search? No. However, he can make a warrantless search or seizure if the package proclaims its contents, whether by its distinctive configuration, or its transparency; or if it is contents are obvious to an observer.

* Where exigent or emergency circumstances exist. The rule on "exigent circumstances" to justify a warrantless search or seizure calls for an immediate search without delay, such as danger or violence or injury to the officers or others, risk of the subject’s escape, or the probability that, unless taken on the spot, evidence will be concealed or destroyed.

* Where the search is made incidental to an inventory search;

* Where the search involves national security;

* The search of a moving vehicle, based on the reasoning that it is not practicable to secure a warrant when the vehicle can be quickly moved out of the locality. The purpose is to prevent a violation of smuggling or immigration laws.

* Search on ships and airplanes for violation of customs laws;

* Stop-and-frisk rule;

* Inspection of buildings and other premises for the enforcement of fire, sanitary and building regulations.

Police budgetary support

As a lawyer and a former RTC judge, I am a very strong lawand-order person. The people upholding law in society are policemen and therefore, all doubts should be resolved in favor of the police. After all, the Rules of Court provides for the disputable presumption that official duty has been regularly performed.

I submit that it is not fair to demand that the police should risk their very lives to uphold the rule of law, and yet should be held in low esteem by people whose mission in life is to change or disregard the law, outside of constitutional processes. Accordingly, as vice chair of the Senate Finance Committee, I will file at the end of the Senate budget hearings, a motion to appropriate the sum of R37 billion for the Philippine National Police.

This amount should be appropriated for the following projects:

* Additional police stations in tourist destinations and insurgency affected areas;

* More ground vehicles, aircraft, and sea craft;

* More firearms, both short and long; more radios, whether base, mobile, or handheld.

In my motion, I will cite and express full support for Senate Joint Resolution Nos. 4 and 5, which will provide for an increase in daily subsistence allowance from R60 to R100, with an additional R20 for those in training. The resolutions also provide for adjustment of this amount, based on the Customer Price Index as may be determined by NEDA every three years.

Topic: Warrantless Arrests

With the unfolding of events last week, many legal questions have cropped up and among these is the issue of warrantless arrests. Under Section 5, Rule 113 of the Revised Rules of Criminal Procedure, 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 in fact just been committed, and he has personal knowledge of facts indicating 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 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) hereof, the person arrested without a warrant shall be forthwith delivered to the nearest police station or jail, and he shall be proceeded against in accordance with Rule 112, Section 7.

The rationale for warrantless arrests was enunciated in the case of Valmonte vs.De Villa (1990) where the Supreme Court held that:

"To hold that no criminal can, in any case, be arrested and searched for the evidence and tokens of his crime without a warrant, would be to leave society, to a large extent, at the mercy of the shrewdest, the most expert, and the most depraved of criminals, facilitating their escape in many instances."

Under Section 5(a) of Rule 113, the officer arresting a person who has just committed, is committing, or is about to commit an offense must have personal knowledge of the fact. The offense must also be committed in is presence or within his view. (Sayo v. Chief of Police, 80 Phil. 859). This is where the terms "in flagrante delicto" and "caught in the act" find application.

In arrests without a warrant under Section 5(b) of Rule 113, however, it is not enough that there is reasonable ground to believe that the person to be arrested has committed a crime. A crime must in fact or actually have been committed first. That a crime has actually been committed is an essential precondition. It is not enough to suspect that a crime may have been committed. The fact of the commission of the offense must be undisputed. The test of reasonable ground applies only to the identity of the perpetrator. Parenthetically, it may be observed that under the Revised Rule 113, Section 5(b), the officer making the arrest must have personal knowledge of the ground therefor as stressed in the case of People v. Burgos.

In People vs. Mengote (G.R. No. 87059, June 22, 1992), the Supreme Court held that the accused acts of merely "looking from side to side" and "holding his abdomen," do not constitute enough basis to implement a warrantless arrest. There was apparently no offense that had just been committed or was being actually committed or at least being attempted by the accused in the presence of the arresting officers.In this case, the Solicitor General argued that the actual existence of an offense was not necessary as long as Mengote's acts "created a reasonable suspicion on the part of the arresting officers and induced in them the belief that an offense had been committed and that the accused-appellant had committed it." The Court shot down this argument stating that no offense could possibly have been suggested by a person "looking from side to side" and "holding his abdomen" and in a place not exactly forsaken.

In the same case, the Court added this caveat:

"It would be a sad day, indeed, if any person could be summarily arrested and searched just because he is holding his abdomen, even if it be possibly because of a stomach-ache, or if a peace officer-could clamp handcuffs on any person with a shifty look on suspicion that he may have committed a criminal act or is actually committing or attempting it. This simply cannot be done in a free society. This is not a police state where order is exalted over liberty or, worse, personal malice on the part of the arresting officer may be justified in the name of security."

The case of People vs. Alvarez (1991), illustrates a warrantless arrest in accordance with Section 5(b) of Rule 113:

"In the instant case, it was the elder Alvarez who initiated the arrest a day after the crime was committed. Having been once a policeman, he may be said to have been equipped with knowledge of crime detection. And having had the opportunity to observe the conduct of the three Appellants, who were at his house the whole day following the commission, it is logical to infer that his act of going to the police, informing them that Appellants were the perpetrators of the crime and even fetching them to make the arrest sprang from a well-grounded belief that a crime had been committed and that Appellants had committed it. In this regard, the arrests without a warrant were validly effected."

As for cases of rebellion, the case of Umil vs. Ramos (187 SCRA 311), clearly states that since rebellion is a continuing offense, a rebel may be arrested at any time, with or without a warrant, as he is deemed to be in the act of committing the offense at any time of the day or night.