ARREST, SEARCHES AND SEIZURES

A.         Definition of Terms

1.          Arrest - Is the taking of a person into custody in order that he may be forthcoming to answer for the commission of an offense. (Sec. 1, Rule 113)

2.          Drug Enforcement Officer Arrest - is the act of taking an offender into custody and imposing restraint upon him with formal notification that he is “under arrest”.

3.          Drug Enforcement Officer Restraint – this is a method employed by the investigators to deprive the liberty of a person by taking him into custody, otherwise known as apprehension.  This is usually called as “detaining for questioning”, “protective custody’, and  “holding on a short affidavit”.

4.          Warrant of Arrest- A written order issued in the name of the People of the Philippines, signed by a judge directed to peace officer (to any law enforcement officer) commanding him to arrest the person named and described therein and bring him/her before the court.

a.          Universal Declaration of Human Rights (UDHR)

b.         Art. 3. Everyone has the right to life, liberty and security of person.

c.          Art. 9. No one shall be subjected to arbitrary arrest, detention or exile.

d.         International Covenant on Civil and Political Rights (ICCPR)

B.         Art. 9.

1.          Everyone has the right to liberty and security of person.  No one shall be subjected to arbitrary arrest or detention.  No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.

2.          Anyone who is arrested shall be informed of the reason for his arrest and shall be promptly informed of any charges against him.

3.          Conditions for making an arrest:

a.       Validly issued warrant of arrest or search warrant.

b.      Proper execution of the warrant of arrest or search warrant.

4.          Processes in the issuance of Warrant of Arrest.

a.       Essential Requisites of a valid warrant

b.         It must be issued upon probable cause;

c.          Probable cause must be determined personally by a judge;

d.         Such judge must examine under oath or affirmation the complainant and the witnesses he may produce; and

e.         The warrant must particularly describe the place to be search and the person or things to be seized.

Probable cause - means such facts and circumstances antecedent to the issuance of a warrant that are in themselves sufficient to induce a cautious man to rely upon them.

Probable cause for an arrest or for the issuance of warrant of arrest- would mean such fact 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

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

5.          Particularity of description

a.          When the description therein is as specific as the circumstances will allow;

b.         When a description expresses a conclusion of fact-not of law- by which the warrant officer may be guided in making the search and seizure;

c.          or when things described are limited to those which bears direct  relation to the offense which the warrant is being issued

6.          Procedure for effecting Arrest. An arrest is made by an actual restraint of a person to be arrested or by his submission to the custody of the person making the arrest.

          No violence or unnecessary force shall be used in making an arrest.  The person arrested shall not be subjected to a greater restraint than is necessary for his detention (Sec. 2, Rule 113) 

7.          Duty of arresting officer. It shall be the duty of the officer executing the warrant to arrest the accused and deliver him to the nearest police station or jail without unnecessary delay. (Sec. 3, Rule 113)     

8.          Execution of Warrant. The head of office to where the warrant or arrest was delivered for execution shall cause the warrant to be executed within ten (10) days from its receipt.  Within ten (10) days after the expiration of the period, the officer to whom it was assigned for execution shall make a report to the judge who issued the warrant. In case of his failure to execute the warrant, he shall state the reasons therefore.  (Sec. 4, Rule 113)

9.          Time of making arrest. An arrest may be made on any day and at any time of the day or night (Sec. 6, Rule 113)

10.      Methods of Arrest by officer by virtue of 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 resist  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. 7, Rule 113)

11.      Methods of arrest by officer 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 engaged in the commission of an offense, is pursued immediately after its commission, has escaped, flees, or forcibly resist before the officer has opportunity to so inform him or when the giving of such information will imperil the arrest (Sec. 8, Rule 113)

12.      Methods 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 cause of the arrest, unless the latter is engaged in the commission of an offense, is pursued immediately after its commission or has escaped, flees or forcibly resist before the person making the arrest has the opportunity to so inform him or when the giving of such information will imperil the arrest. (Sec. 9, Rule 113)

13.      Right of officer to break into building or enclosure. An officer, in order to make an arrest either by virtue of a warrant, or without a warrant , may break into any building or enclosure where the person to be arrested is or is reasonably believe to be, if he is refused admittance thereto, after announcing his authority  and purpose. (Sec. 11, Rule 113)

14.      Right to break out from building or enclosure. Whenever an officer has entered the building or enclosure, he may breakout therefrom when necessary to liberate himself. (Sec. 12, Rule 113)

15.      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. (Sec. 5, Rule 113)

C.         Laws Applicable to Search and Seizures.

1.          Sec. 1;    Rules 126 – Definition of Search Warrant

2.          Sec. 2;    Rules 126 – The personal property to be seized

3.          Sec. 3 ;   Rules 126 –  Requisites for issuing a search warrant

4.          Sec. 4;    Rules 126 – Examination of applicant for a search warrant

5.          Sec. 5;    Rules 126 –  Issuance and form of  search warrant

6.          Sec. 6;    Rules 126 – Right to break door or window to effect search

7.          Sec  7;    Rules 126 – Search of house, room, or premises to be made in    the presence of witnesses

8.          Sec.  8;    Rules 126 – Time of making search

9.          Sec.  9;    Rules 126 – Validity of search warrant (lifetime)

10.      Sec.  10;  Rules 126 – Receipt for the property seized

11.      Sec.  11;  Rules 126 – Delivery of property and inventory thereof to the   court

12.      Sec.  12; Rules 126 – Search without warrant of person arrested

a.          Search of a Person – is conducted to discover weapons or evidence to determine identity.

b.         Seizures – is the taking custody of property found by searching.

c.          Searches and Seizures- The power exercised by public authority to enter private premises for the purpose of arresting a person or of obtaining evidence of his guilt of a crime of which he is charged.  It may also be exercised to seize property which is subject to forfeiture.

d.         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)

D.         Universal Declaration of Human Rights (UDHR). Art. 12. No one shall be subjected to arbitrary interference with his privacy, family home or correspondence, nor to attack upon his honor and reputation.  Everyone has the right to the protection of the law against such interference or attacks.

E.          International Covenant on Civil and Political Rights (ICCPR). Art. 17.

1.          No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honor and reputation.

2.          Everyone has the right to protection of the law against such interference or attacks.

3.          Where application for search warrant shall be filed:

a.          Any court within whose territorial  jurisdiction a crime was committed

b.         For compelling reason stated in the application, Any court within the judicial region were 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.

If criminal action has already been filed, the application shall only be made in the court where the criminal action is pending. (Sec. 2, Rule 126)

4.          Personal Property to be seized

a.          Subject of the offense

b.         Stolen or embezzled and other proceeds, or fruits of the offense;

c.          Used or intended to be used as the means of committing an offense (Sec. 3, Rule 126)

5.          Requisites for issuing Search Warrant:

a.          Probable cause

b.         To be determined personally by a judge and not by the applicant or any other person

c.          The judge must personally examine in the form of searching questions and answers, in writing and under oath, the complainant and any witnesses he may produce, on facts known to them.

d.          The probable cause must be in connection with one specific offense;

e.          The warrant issued must particularly describe the place to be searched and the person or things to be seized; and

f.           The sworn statement together with the affidavits submitted by witnesses must be attached to the records.

6.          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 out 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 (Sec. 7, Rule 126)

a.          Search of house, room or premises - in the presence of the lawful occupant thereof or any member of his family/or two witnesses of sufficient age and discretion residing in the same locality (Sec. 8, Rule 126)

b.         Time of making search - The warrant must direct that it must 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. (Sec. 9, Rule 126)

c.          Validity of Search Warrant - A search warrant shall be valid for ten (10) days from its date.  Thereafter, it shall be void. (Sec. 10, Rule 126)

7.          Receipt of the property seized:

a.          Must give a detailed receipt of property/ties to the lawful occupant of the premises in whose presence the search and seizure were made;

b.         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.  (Sec. 11, Rule 126).

8.          Delivery of the property and inventory to the Court/ Return/Proceeding:

a.          The officer must deliver the property seized to the judge who issued the warrant together with the inventory duly verified under oath.

b.         10 days after issuance of the warrant, the issuing judge shall ascertain if the return has been made. (Sec. 12, Rule 126)

9.          Search incidental to lawful arrest. A person lawfully arrested may be searched for dangerous weapons or any thing which may have been used or constitute proof in the commission of an offense without a search warrant. (Sec. 13, Rule 126)

10.      Search without a Warrant

a.          Search made incidental to a valid arrest

b.         Search of moving vehicle

c.          Search of goods concealed to avoid duties

d.         Seizure of evidence in plain view

e.         When there is waiver of the right

F.          Miranda Doctrine or Miranda Rule

1.          A doctrine or rule enunciated by the US Supreme Court in the case of Miranda vs. Arizona, 384 US 436 (1966) where it laid down the constitutional requirements that must be observed in custodial investigation.

2.          The entirety of the Miranda Rule is now part of Philippine law

a.          The following are the constitutional requirements that must be observed in custodial investigation:

b.         The person in custody must be informed at the outset in clear and equivocal terms that he has the right to remain silent;

c.          After being so informed, he must be told that anything he says can and will be used against him in court;

d.         He must be clearly informed that he has the right to consult with a lawyer and to have a lawyer with him during the interrogation.  He does not have to ask for a lawyer.  The investigator should tell him that he has the right to counsel at that point;

e.         He should be warned that not only he has the right to consult with a lawyer but also that if he is indigent, a lawyer will be appointed to represent him.

f.           Even if the person consents to answer questions without the assistance of a counsel, the moment he ask for a lawyer at any point in the investigation, the investigation must cease until an attorney is present; and

g.          If the foregoing protections and warnings are not demonstrated during the trial to have been observed by the prosecution, no evidence obtained as a result of the interrogation can be used against him.

       

These rights are available after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.

Any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel preferably of his own choice.  If the person cannot afford the services of a counsel, he must be provided with one.  These rights cannot be waived except in writing and in the presence of counsel. ( Article III, Sec. 12, par 1)