CRIMPRO ARRESTS Part 1

Question 1

“Arrest”

Answer 1

is defined under Section 1, Rule 113 of the Rules of Court as the taking of a person into custody in order that he may be bound to answer for the commission of an offense. Under Section 2 of the same Rule, an arrest is effected (and it is made “by an actual restraint of the person to be arrested, or by his submission to the custody of the person making the arrest.) by an actual restraint of the person to be arrested or by his voluntary submission to the custody of the person making the arrest.

Question 2

“Arrest” is defined under Section 1, Rule 113 of the Rules of Court as the taking of a person into custody. Why?

Answer 2

in order that he may be bound to answer for the commission of an offense.

Question 3

Under Section 2 of the same Rule, an arrest is effected (and it is made) by 2 intances:

Answer 3

by an actual restraint of the person to be arrested or** by his voluntary submission to the custody of the person making the arrest.**

Question 4

Distinction between the preliminary inquiry which determines probable cause for the issuance of a warrant of arrest and the preliminary investigation proper which ascertains whether the offender should be held for trial or be released.

Answer 4

The determination of probable cause for purposes of issuing the warrant of arrest is made by the judge. The preliminary investigation proper – whether or not there is reasonable ground to believe that the accused is guilty of the offense charged – is the function of the investigating prosecutor.

Question 5

The duty of the judge to determine probable cause to issue a warrant of arrest is mandated by Article III, Section 2 of the Philippine Constitution:

Section 2. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and 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 searched and the persons or things to be seized.

Answer 5

In Soliven v. Makasiar, the Court explained that this constitutional provision does not mandatorily require the judge to personally examine the complainant and her witnesses. Instead, he may opt to personally evaluate the report and supporting documents submitted by the prosecutor or he may disregard the prosecutor’s report and require the submission of supporting affidavits of witnesses. Thus, in Soliven, we said:

What the Constitution underscores is the exclusive and personal responsibility of the issuing judge to satisfy himself of the existence of probable cause. In satisfying himself of the existence of probable cause for the issuance of a warrant of arrest, the judge is not required to personally examine the complainant and his witnesses. Following established doctrine and procedure, he shall: (1) personally evaluate the report and the supporting documents submitted by the fiscal regarding the existence of probable cause and, on the basis thereof, issue a warrant of arrest; or (2) if on the basis thereof he finds no probable cause, he may disregard the fiscal’s report and require the submission of supporting affidavits of witnesses to aid him in arriving at a conclusion as to the existence of probable cause.

Sound policy dictates this procedure, otherwise judges would by unduly laden (Something that is laden is weighted down by something heavy, like an apple tree that’s laden with fruit.) with the preliminary examination and investigation of criminal complaints instead of concentrating on hearing and deciding cases filed before their courts.

The Court has also ruled that the personal examination of the complainant and his witnesses is not mandatory and indispensable in the determination of probable cause for the issuance of a warrant of arrest. The necessity arises only when there is an utter failure of the evidence to show the existence of probable cause. Otherwise, the judge may rely on the report of the investigating prosecutor, provided that he likewise evaluates the documentary evidence in support thereof.

Question 6

What the Constitution underscores is the exclusive and personal responsibility of the issuing judge to satisfy himself of the existence of probable cause. In satisfying himself of the existence of probable cause for the issuance of a warrant of arrest, the judge is not required to personally examine the complainant and his witnesses. Following established doctrine and procedure, he shall:

Answer 6

(1) personally evaluate the report and the supporting documents submitted by the fiscal regarding the existence of probable cause and, on the basis thereof, issue a warrant of arrest; or

(2) if on the basis thereof he finds no probable cause, he may disregard the fiscal’s report and require the submission of supporting affidavits of witnesses to aid him in arriving at a conclusion as to the existence of probable cause.

Question 7

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. This means that the judge should?

Answer 7

This means that the judge should consider not only the report of the investigating prosecutor but also the affidavit and the documentary evidence of the parties, the counter-affidavit of the accused and his witnesses, as well as the transcript of stenographic notes taken during the preliminary investigation, if any, submitted to the court by the investigating prosecutor upon the filing of the Information.

Question 8

When and how warrant issued (Art. III, Sec. 2, 1987 Constitution, Rule 112, Sec. 6)

Question 9

Probable Cause

Answer 9

Although the term eludes exact definition, probable cause signifies a reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious man’s belief that the person accused is guilty of the offense with which he is charged; or the existence of such facts and circumstances which could lead a reasonably discreet and prudent man to believe that an offense has been committed and that the items, articles or objects sought in connection with said offense or subject to seizure and destruction by law is in the place to be searched. The required probable cause that will justify a warrantless search and seizure is not determined by a fixed formula but is resolved according to the facts of each case.

Question 10

The Court has allowed some meritorious cases to proceed despite inherent procedural defects and lapses. This is in keeping with the principle that rules of procedure are mere tools designed to facilitate the attainment of justice, and that strict and rigid application of rules which would result in technicalities that tend to frustrate rather than promote substantial justice must always be avoided.It is a far better and more prudent cause of action for the court to excuse a technical lapse and afford the parties a review of the case to attain the ends of justice, rather than dispose of the case on technicality and cause grave injustice to the parties, giving a false impression of speedy disposal of cases while actually resulting in more delay, if not a miscarriage of justice.

Question 11

Section 2, Article III, of the 1987 Constitution, provides:

SEC. 2. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and 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 searched and the persons or things to be seized. Explanation

Answer 11

It is constitutionally mandated that a warrant of arrest shall issue only upon finding of probable cause personally determined by the judge after examination under oath or affirmation of the complainant and the witnesses he/she may produce, and particularly describing the person to be seized.

To determine the existence of probable cause, a preliminary investigation is conducted. A preliminary investigation is an inquiry or proceeding to determine whether there is sufficient ground to engender a well-founded belief that a crime has been committed and the respondent is probably guilty thereof, and should be held for trial.24

A preliminary investigation is required to be conducted before the filing of a complaint or information for an offense where the penalty prescribed by law is at least 4 years, 2 months and 1 day without regard to the fine.25 Thus, for cases where the penalty prescribed by law is lower than 4 years, 2 months and 1 day, a criminal complaint may be filed directly with the prosecutor or with the Municipal Trial court. In either case, the investigating officer (i.e., the prosecutor or the Municipal Trial Court Judge) is still required to adhere to certain procedures for the determination of probable cause and issuance of warrant of arrest.

Question 12

To determine the existence of probable cause, a preliminary investigation is conducted. A preliminary investigation

Answer 12

is an inquiry or proceeding to determine whether there is sufficient ground to engender a well-founded belief that a crime has been committed and the respondent is probably guilty thereof, and should be held for trial.

Question 13

It is constitutionally mandated that a warrant of arrest shall issue only upon finding of probable cause personally determined by the judge after examination under oath or affirmation of the complainant and the witnesses he/she may produce, and particularly describing the person to be seized.

To determine the existence of probable cause, a

Answer 13

preliminary investigation is conducted. A preliminary investigation is an inquiry or proceeding to determine whether there is sufficient ground to engender a well-founded belief that a crime has been committed and the respondent is probably guilty thereof, and should be held for trial.

Question 14

probable cause

Answer 14

whether there is sufficient ground to engender a well-founded belief that a crime has been committed and the respondent is probably guilty thereof, and should be held for trial.

Question 15

When the investigating judge relied solely on the affidavit of witness De Lara which was not sworn to before him and whom he failed to examine in the form of searching questions and answers, he deprived petitioners of the opportunity to test the veracity of the allegations contained therein. Worse, petitioners’ arguments that De Lara’s affidavit was hearsay was disregarded by the investigating judge despite the fact that the allegations therein were completely rebutted by petitioners’ and their witnesses’ affidavits, all of whom appeared before and were personally examined by the investigating judge. It was thus incorrect for the court a quo to rule thus:

Question 16

The procedure described in Section 6 of Rule 112 is mandatory because failure to follow the same would amount to a denial of due process. With respect to the issuance by inferior courts of warrants of arrest, it is necessary that the judge be satisfied that probable cause exists:

Answer 16

1) through an examination under oath and in writing of the complainant and his witnesses; which examination should be
2) 2) in the form of searching questions and answers. This rule is not merely a procedural but a substantive rule because it gives flesh to two of the most sacrosanct guarantees found in the fundamental law: the guarantee against unreasonable searches and seizures and the due process requirement.

Question 17

Section 6, par. (b) of Rule 112 of the Rules of Court provides:
(b) By the Municipal Trial Court. - When required pursuant to the second paragraph of Section 1 of this Rule, the preliminary investigation of cases falling under the original jurisdiction of the Metropolitan Trial Court, Municipal Trial Court in Cities, Municipal Trial Court, or Municipal Circuit Trial Court may be conducted by either the judge or the prosecutor. x x x When the investigation is conducted by the judge himself, he shall follow the procedure provided in section 3 of this Rule. If his findings and recommendations are affirmed by the provincial or city prosecutor, or by the Ombudsman or his deputy, and the corresponding information is filed, he shall issue a warrant of arrest. However, without waiting for the conclusion of the investigation, the judge may issue a warrant of arrest if he finds after an examination in writing and under oath of the complainant and his witnesses in the form of searching questions and answers, that a probable cause exists and that there is a necessity of placing the respondent under immediate custody in order not to frustrate the ends of justice. [Emphasis supplied]
From the foregoing provision, there are three (3) conditions that must concur for the issuance of the warrant of arrest by the municipal judge during a preliminary investigation. The investigating judge must:

Answer 17

1. Have examined in writing and under oath the complainant and his witnesses by searching questions and answers;
2. Be satisfied that a probable cause exists; and
3. That there is a need to place the respondent under immediate custody in order not to frustrate the ends of justice.

Question 18

In the case of People versus Francisco Galit, G.R. No. L-51770, promulgated on March 20, 1985, which cited the case of Morales vs. Ponce Enrile, 121 SCRA 538, this Court reiterated the correct procedures for peace officers to follow when making arrest and in conducting a custodial investigation. Therein We said:—

At the time a person is arrested, it shall be the duty of the arresting officer to

Answer 18

inform him of the reason for the arrest and he must be shown the warrant of arrest, … . He shall be informed of his constitutional rights to remain silent and to counsel and that any statement he might make could be used against him. The person arrested shall have the right to communicate with his lawyer, a relative, or anyone he chooses by the most expedient means-by telephone if possible- or by letter of messenger. It shall be the responsibility of the arresting officer to see to it that this is accomplished. No custodial investigation shall be conducted unless it be in the presence of counsel engaged by the person arrested, by any person on his behalf, or appointed by the court upon petition either of the detainee himself or by anyone on his behalf.

The right to counsel may be waived but the waiver shall not be valid unless made with the assistance of counsel. any statement obtained in violation of the procedure herein laid down, whether exculpatory or inculpatory in whole or in part shall be inadmissible in evidence. (Emphasis supplied)

Question 19

Unannounced intrusion into the premises is permissible when

Answer 19

Unannounced intrusion into the premises is permissible when (a) a party whose premises or is entitled to the possession thereof refuses, upon demand, to open it; (b) when such person in the premises already knew of the identity of the officers and of their authority and persons; (c) when the officers are justified in the honest belief that there is an imminent peril to life or limb; and (d) when those in the premises, aware of the presence of someone outside (because, for example, there has been a knock at the door), are then engaged in activity which justifies the officers to believe that an escape or the destruction of evidence is being attempted. Suspects have no constitutional right to destroy evidence or dispose of evidence.71

However, the exceptions above are not exclusive or conclusive. At times, without the benefit of hindsight and ordinarily on the spur of the moment, the officer must decide whether or not to make an unannounced intrusion into the premises. Although a search and seizure of a dwelling might be constitutionally defective, if the police officers’ entry was without prior announcement, law enforcement interest may also establish the reasonableness of an unannounced entry.Indeed, there is no formula for the determination of reasonableness. Each case is to be decided on its own facts and circumstances. In determining the lawfulness of an unallowed entry and the existence of probable cause, the courts are concerned only with what the officers had reason to believe and the time of the entry. In

Richards v. Wisconsin,75 it was held that:
[1] In order to justify a “no-knock” entry, the police must have a reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous or futile, or that it would inhibit the effective investigation of the crime by, for example, allowing the destruction of evidence. This standard—as opposed to a probable-cause requirement—strikes the appropriate balance between the legitimate law enforcement concerns at issue in the execution of search warrants and the individual privacy interest affected by no-knock entries.

As articulated in Benefield v. State of Florida, what constitutes breaking includes the lifting of a latch, turning a door knob, unlocking a chain or hasp, removing a prop to or pushing open a closed door of entrance to the house, even a closed screen door. However, entry obtained through the use of deception, accomplished without force is not a “breaking” requiring officers to first announce their authority and purpose because the reasons behind the rule are satisfied – there was no real likelihood of violence, no unwarranted intrusion or privacy and no damage to the residence of the accused.

As to how long an officer implementing a search warrant must wait before breaking open any door cannot be distilled into a constitutional stopwatch. Each case has to be decided on a case-to-case basis requiring an examination of all the circumstances. The proper trigger point in determining, under the “knock and announce” rule, whether the police waited long enough before entering the residence to execute a warrant, is when those inside should have been alerted that the police wanted entry to execute a warrant.

In this case, we rule that the policemen complied with Section 7, Rule 126 of the Revised Rules of Criminal Procedure before entering the condominium unit. Appellant Lee admitted, when she testified, that the police officers were accompanied by Chuang, a Cantonese interpreter, who informed her that his companions were police officers and had a search warrant for the premises, and also explained to her that the officers were going to search the condominium unit. The appellant was sufficiently aware of the authority of the policemen, who wore PARAC uniforms, to conduct the search and their purpose. Moreover, Anciro, Jr. told the appellant, in English, to bring some clothes with her as she was to be brought to the police headquarters. Without such request being interpreted to the appellant, the latter did as she was directed and took some clothes from the cabinet atop the headboard.

Question 20

under Section 5, Rule 113 of the Rules of Court, providing as follows:
Sec. 5. Arrest without warrant; when lawful. — A peace officer or a private person may, without a warrant, arrest a person:

Answer 20

(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 escapes 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.

Question 21

a. When and how warrant issued (Art. III, Sec. 2, 1987 Constitution, Rule 112, Sec. 6)

Answer 21

Section 2. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and 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 searched and the persons or things to be seized.

Section 6. When accused lawfully arrested without warrant. — When a person is lawfully arrested without a warrant involving an offense which requires a preliminary investigation, the complaint or information may be filed by a prosecutor without need of such investigation provided an inquest has been conducted in accordance with existing rules.

In the absence or unavailability of an inquest prosecutor, the complaint may be filed by the offended party or by a peace officer directly with the proper court on the basis of the affidavit of the offended party or arresting officer or person.

Before the complaint or information is filed, the person arrested may ask for a preliminary investigation in accordance with this Rule, but he must sign a waiver of the provisions of Article 125 of the Revised Penal Code, as amended, in the presence of his counsel. Notwithstanding the waiver, he may apply for bail and the investigation must be terminated within fifteen (15) days from its inception.
After the filing of the complaint or information in court without a preliminary investigation, the accused may within five (5) days from the time he learns of its filing, ask for a preliminary investigation with the same right to adduce evidence in his defense as provided in this Rule. (7a; sec. 2, R.A. No. 7438)

Question 22

b. Requisites for issuance

Question 23

What the Constitution underscores is the exclusive and personal responsibility of the issuing judge to satisfy himself of the existence of probable cause. In satisfying himself of the existence of probable cause for the issuance of a warrant of arrest, the judge is not required to personally examine the complainant and his witnesses. Following established doctrine and procedure, he shall:

Answer 23

(1) personally evaluate the report and the supporting documents submitted by the fiscal regarding the existence of probable cause and, on the basis thereof, issue a warrant of arrest; or (2) if on the basis thereof he finds no probable cause, he may disregard the fiscal’s report and require the submission of supporting affidavits of witnesses to aid him in arriving at a conclusion as to the existence of probable cause.

Sound policy dictates this procedure, otherwise judges would by unduly laden with the preliminary examination and investigation of criminal complaints instead of concentrating on hearing and deciding cases filed before their courts.50

Question 24

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. This means

Answer 24

that the judge should consider not only the report of the investigating prosecutor but also the affidavit and the documentary evidence of the parties, the counter-affidavit of the accused and his witnesses, as well as the transcript of stenographic notes taken during the preliminary investigation, if any, submitted to the court by the investigating prosecutor upon the filing of the Information.

Question 25

Probable cause

Answer 25

for the issuance of a warrant of arrest has been defined as such facts and circumstances which would lead a reasonably discreet and prudent man to believe that an offense has been committed by the person sought to be arrested.

Question 26

Custodial Investigation

Answer 26

As a rule, custodial investigation begins to operate as soon as the investigation ceases to be general inquiry into an unsolved crime and the interrogation is then aimed on a particular suspect who has been taken into custody and to whom the police would then direct interrogatory questions that tend to elicit incriminating statements.

Question 27

The “investigation” in Section 12, paragraph 1 of the Bill of Rights pertains to “custodial investigation.” Custodial investigation commences

Answer 27

when a person is taken into custody and is singled out as a suspect in the commission of a crime under investigation and the police officers begin to ask questions on the suspect’s participation therein and which tend to elicit an admission.

This Court expounded in People v. Marra:

Custodial investigation involves any questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. It is only after the investigation ceases to be a general inquiry into an unsolved crime and begins to focus on a particular suspect, the suspect is taken into custody, and the police carries out a process of interrogations that lends itself to eliciting incriminating statements that the rule begins to operate.18

Republic Act (R.A.) No. 7438 reinforced the constitutional mandate and expanded the definition of custodial investigation.1âwphi1 This means that even those who voluntarily surrendered before a police officer must be apprised of their Miranda rights.19 The same pressures of a custodial setting exist in this scenario. A portion of Section 2 of R.A. No. 7438 reads:

SEC. 2. Rights of Persons Arrested, Detained or under Custodial Investigation; Duties of Public Officers. -

x x x x

As used in this Act, “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.20

Applying the foregoing, Cabanada was not under custodial investigation when she made the confession, without counsel, to PO2 Cotoner that she took the missing ₱20,000.00. The prosecution established that the confession was elicited during the initial interview of the police after Catherine called to report the missing money and personal effects. The investigation was still a general inquiry of the crime and has not focused on a particular suspect. Also, she admitted to the crime while at the residence of her employer, thus, she was not yet taken into custody or otherwise deprived of her freedom. As PO2 Cotoner’s testified:

Q: Why did you start your interview with accused Robelyn Cabanada?

A: Because she’s only the person left in that house during that time, ma’am.

Q: You said that you started interview with Robelyn Cabanada, what was her reaction if you can remember when you started to interview her?

A: At first she was crying and later she was talking and talking and admitted that she was the one who took the money, ma’am.

Q: How according to her were she able to get the money, you mentioned earlier that private complainant in this case Catherine Victoria told you that she discovered [₱]20,000 out of [₱]47,000.00 inside a white envelope which white envelope was inside her car. How did accused tell you how she got the money?

A: She said that she also stole the master key of the car prior to that time she stole the money, ma’am.

Q: When you were interviewing accused Ms. Robelyn Cabanada, who were present?

A: The complainant, ma’ am.

Q: Aside from the complainant who else were present?

A: PO3 Rodel Samaniego, ma’am.

Q: How did complainant react when accused told you or related information that she knows the stolen master key of the car, who open the same?

A: The complainant revealed that she lost the key several months ago, ma’am.

Q: What happened after this information was given to you?

A: Together the complainant the accused led us in her room and in a cabinet she took from there the white envelope which consists of [₱]16,000.00 and after that she also get the leather wallet which contained the master key of the car which she stole several months ago, ma’am.

x x x21

Question 28

Probable cause is

Answer 28

a reasonable ground of presumption that a matter is, or may be, well founded, such a state of facts in the mind of the prosecutor as would lead a person of ordinary caution and prudence to believe, or entertain an honest or strong suspicion, that a thing is so. The term does not mean “actual and positive cause” nor does it import absolute certainty. It is merely based on opinion and reasonable belief. Thus, a finding of probable cause does not require an inquiry into whether there is sufficient evidence to procure a conviction. It is enough that it is it believed that the act or omission complained of constitutes the offense charged. Precisely, there is a trial for the reception of evidence of the prosecution in support of the charge.

Whether an act was done causing undue injury to the government and whether the same was done with manifest partiality or evident bad faith can only be made out by proper and sufficient testimony. Necessarily, a conclusion can be arrived at when the case has already proceeded on sufficient proof.

Question 29

In this instance, Salonga v. Paño 47 finds application —
The purpose of a preliminary investigation is

Answer 29

To secure the innocent against hasty, malicious and oppressive prosecution, and to protect him from an open and public accusation of crime, from the trouble, expense and anxiety of a public trial, and also to protect the state from useless and expensive trial (Trocio v. Manta, 118 SCRA 241, citing Hashim v. Boncan, 71 Phil. 216). The right to a preliminary investigation is a statutory grant, and to withhold it would be to transgress constitutional due process (People v. Oandasa, 25 SCRA 277). However, in order to satisfy the due process clause it is not enough that the preliminary investigation is conducted in the sense of making sure that the transgressor shall not escape with impunity. A preliminary investigation serves not only for the purposes of the State. More importantly, it is a part of the guarantees of freedom and fair play which are birthrights of all who live in the country. It is therefore imperative upon the fiscal or the judge as the case may be, to relieve the accused from the pain of going thru a trial once it is ascertained that the evidence is insufficient to sustain a prima facie case or that no probable cause exists to form a sufficient belief as to the guilt of the accused (emphasis supplied).