Published 18 January 2021, The Daily Tribune

In the second installment of our criminal procedure series, we talk about warrantless arrests and the requisites for these types of arrests to be valid.

Generally speaking, for there to be a lawful arrest, law enforcers must be armed with a valid warrant of arrest.

The warrant of arrest is issued by the judge upon filing by the public prosecutor of an information in court, presupposing that the public prosecutor had found probable cause to bring the respondent to trial after conduct of preliminary investigation.  

This largely springs from the constitutional provision, under Section 2, Article III (Bill of Rights) of the 1987 Constitution 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 searched and the persons or things to be seized.

But there are instances where an arrest can be effected without a warrant of arrest. Under Rule 113, Section 5 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. This is also known as an in flagrante delicto (or in the very act of wrongdoing) arrest.

(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. This is also known as a hot pursuit arrest.

(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.

In cases falling under paragraphs (a) and (b) justifying warrantless arrests, the person arrested without a warrant shall be delivered to the nearest police station for the conduct of inquest proceedings. As discussed in our last article, when a person is lawfully arrested without a warrant involving an offense which requires a preliminary investigation, inquest by the public prosecutor will follow instead of a regular preliminary investigation, pursuant to Section 7 of Rule 112 of the Revised Rules of Criminal Procedure.  

For an in flagrante delicto arrest under paragraph (a) to be valid:

First, the person to be arrested must execute an overt act indicating that he or she has just committed, is actually committing, or is attempting to commit a crime; and,

Second, such overt act is done in the presence or within the view of the arresting officer.

There must be probable cause to effect the in flagrante delicto arrest, referring to those 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. After a valid warrantless arrest is effected, the officer may also conduct a valid warrantless search, which is in incidental to such arrest.

To illustrate requirement that the overt act must be witnessed by the arresting officer, the court invalidated the arrest of the accused when evidence showed the arresting officer was 5 to 10 meters away when a supposedly illegal drug sale transaction supposedly took place.

Due to the considerable distance away from the alleged criminal transaction and the atomity of the object thereof or white crystalline substance contained in a plastic sachet, the court found it highly doubtful that said arresting officer was able to reasonably ascertain that any criminal activity was ongoing (Sindac vs. People, G.R. No. 220732, September 06, 2016).

In the case of People vs. Racho  (G.R. No. 186529, August 3, 2010), acting on a tip of an informant that a person fitting appellant’s description was in possession of illegal drugs, the police officers approached the appellant after he had alighted the bus and invited him to the police station since he was suspected of having shabu in his possession.  

The court observed that the accused was not “committing a crime in the presence of the police officers” at the time he was apprehended. The arrest was based solely on a tip received by the officers that a person fitting appellant’s description as in possession of illegal drugs.  

While the court recognized jurisprudence that deems “reliable information” sufficient to justify a search incident to a lawful warrantless arrest, the long standing rule is that “reliable information” alone is not sufficient to justify a warrantless arrest.

In addition, the accused should have been performing some overt act that would indicate that he has committed, is actually committing, or is attempting to commit an offense. Hence, the in flagrante delicto arrest was infirm.

Our next discussion will cover the second and third mode of warrantless arrests.

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