(Modified by CLS January 17, 2011) When an arrest made without warrant is valid When person has committed, is actually committing, or is attempting to commit an offense in the presence of the officer (in flagrante delicto);
When an offense has just been committed and the officer has probable cause to believe based on personal knowledge of facts or circumstances that the person has committed it (hot pursuit)
When person has escaped from prison or confinement INVALID WARRANTLESS ARRESTS Where officer had no personal knowledge of the commission of the crime but only obtained information from an informer and the suspect was not doing anything unlawful when arrested;
Where there was sufficient time to apply for a warrant after receipt of the information on the commission of the crime;
Where the officer did not know the specific offense being committed by the person although the latter was acting suspiciously;
INVALID WARRANTLESS ARRESTS Where officer was merely suspicious that person was engaged in a felonious enterprise and arrested him only to find out; Where the officer merely relied on hearsay information that the source of the marijuana was the suspect; Where police did not have personal knowledge but only so-called reliable information; INVALID WARRANTLESS ARRESTS Where the person has not executed an overt act that he has just committed, is actually committing or is attempting to commit a crime or even if there was an overt act, it was not done in the presence or within the view of the arresting officer; Where there was a lapse of five days within which the police could have conducted a surveillance and applied for warrant.
When to get a warrant of arrest DURING PRELIMINARY INVESTIGATION Where the prosecutor conducting the preliminary investigation believes an arrest warrant is necessary, he shall apply for one before the judge within ten days from the filing of the criminal complaint. The preliminary investigation need not have terminated. The judge can issue a warrant if he finds that probable cause exists. This is determined by an examination in writing and under oath of the complainant and his witnesses in the form of searching questions and answers that there is necessity of placing the respondent under immediate custody not to frustrate the ends of justice. When to get a warrant of arrest TEN DAYS FROM FILING OF INFORMATION After preliminary investigation and there is probable cause, the information is filed. Within ten days therefrom, the judge shall personally evaluate the resolution and evidence, if he finds probable cause, he shall issue warrant or arrest.
How to make an arrest Any day and at any time of day or night Inform person of the cause of arrest or issuance of warrant No need to inform where he: (a) is committing crime or pursued immediately after; (b) has escaped; flees; (d) forcibly resists arrest; or (e) when giving info will imperil arrest
How to make an arrest Officer may summon persons to assist him. They should assist him but without detriment to themselves
May break into building or enclosure after announcing purpose
No violence or unnecessary force shall be used
How to make an arrest Person shall not be subject to greater restraint than is necessary for his detention
Deliver the person to the nearest police station or jail without unnecessary delay
Within 10 days, make a report to judge who issued warrant
DETENTION PERIODS ALLOWED BY LAW FROM TIME TAKEN INTO CUSTODY 12 HOURS-OFFENSES PENALIZED BY ARRESTO MENOR
18 HOURS-OFFENSES PENALIZED BY PRISION CORRECIONAL OR ARRESTO MAYOR Ex. Using child for begging, drug trafficking or any illegal activity
36 HOURS-OFFENSES PENALIZED BY RECLUSION PERPETUA or TEMPORAL, PRISION MAYOR, DEATH Ex. Child prostitution and other sexual abuse; child trafficking; Using child for obscene publications and indecent shows; acts of neglect, abuse, cruelty, exploitation; murder; homicide; intentional mutilation; serious physical injuries where victim under 12 years old; rape
What is INQUEST A summary investigation conducted by an inquest prosecutor who will determine whether the person arrested without a warrant should remain in custody and be charged in court.
DOCUMENTS REQUIRED FOR INQUEST TO BE CONDUCTED
Affidavit of arrest Investigation report Statements of offended party and witnesses Other supporting evidence Where applicable death certificate; post-mortem exam; medical certificate; chemistry report; medico-legal report
Other Requirements:INQUEST If detained person wants preliminary investigation, he must sign waiver of period of illegal detention with counsel
Inquest prosecutor to examine sworn statements and evidence
Inquest prosecutor may examine complainant and witnesses
CONTENTS OF INQUEST INFORMATION Offense committed and amount of bail, if bailable
Certification by inquest prosecutor in accordance with Sec. 7 Rule 112
Full name, aliases, address, place of detention of accused
Full names and addresses of complainant and witnesses
CONTENTS OF INQUEST INFORMATION Detailed description of recovered items if any
Full name and address of evidence custodian
Age and date of birth of complainant or accused if below 18 years old
Full name and addresses of parents, custodians or guardians of minor complainant or accused
DUTIES OF POLICE OFFICERS DURING INQUEST PROCEEDINGS Take photographs
Recover all articles and pieces of evidence found at crime scene
Safeguard evidence in that chain of custody properly recorded, physically inventoried, checked and accounted for with issuance of receipts, properly deposited with police evidence custodian
Make written report
Execute sworn statements
PRELIMINARY INVESTIGATION AND CRIMINAL COMPLAINTS Prepared by: Atty Teresita J. Herbosa (Modified by CLS January 17, 2011) What is an INFORMATION? It is the complaint filed in court to commence a criminal action:
It is a sworn written statement. It charges a person with an offense. It is subscribed by the offended party or any law enforcement officer. It identifies the law violated. It is filed in court to commence a criminal action The Contents of an Information or a Complaint Name of accused The law violated Acts or omissions complained of as constituting the offense, Qualifying and aggravating circumstances Name of offended party Approximate date of commission of the offense Place where offense was committed
Attachments to the Complaint Sworn statements of complainant and witnesses
Custodial investigation report
Medico-legal report
Investigation report of the DSWD or law enforcement agency (for a child abuse case)
Attachments to the Complaint Physical/mental examination (for a child abuse case)
Extra-judicial confession, if any, executed in accordance with RA 7438
Other documentary and physical evidence Other Requirements for Preliminary Investigation Complete name and address of offender in the preliminary investigation sheet
Such number of copies of the sworn statements as there are offenders plus two copies for the office of the prosecutor
Sworn statements shall be subscribed and sworn to before the prosecutor, or a government official authorized to administer oath, or in their absence, any notary public Other Requirements for Preliminary Investigation The certification of the subscribing officer that he personally examined the affiant and is satisfied that he voluntarily executed and understood his statements
WHEN WARRANTS NOT NECESSARY AND EVIDENCE OBTAINED IS ADMISSIBLE SEARCH INCIDENT TO A LAWFUL ARREST; SEARCH OF A MOVING VEHICLE; SEARCH OF VESSEL AND AIRCRAFT FOR VIOLATION OF IMMIGRATION, CUSTOMS AND DRUG LAWS;
WHEN WARRANTS NOT NECESSARY AND EVIDENCE OBTAINED IS ADMISSIBLE STOP AND FRISK OPERATIONS; SEIZURE OF PROHIBITED ARTICLES OR EVIDENCE IN PLAIN VIEW; SEARCH OF AUTOMOBILE AT BORDERS OR CONSTRUCTIVE BORDERS; WHEN WARRANTS NOT NECESSARY AND EVIDENCE OBTAINED IS ADMISSIBLE WHEN THE ACCUSED HIMSELF WAIVES HIS RIGHT AGAINST UNREASONABLE SEARCHES AND SEIZURES OR CONSENTED SEARCHES; AND SEARCH OF BUILDING AND PREMISES TO ENFORCE FIRE, SANITARY AND BUILDING REGULATIONS
WARRANTLESS SEARCH AND SEIZURE EXPLAINED Plain view doctrine prohibited or clearly illegal articles may be taken without a warrant if they are open to the eye and the officer came upon them inadvertently (in other words, he wasnt looking for them), subject to the following limitations: Plain view doctrine (contd) Prior justification for intrusion as in valid warrantless arrest; Inadvertent discovery by police who had the right to be where they were; Immediate apparent illegality of evidence although police not absolutely certain if these had anything to do with a crime; Seizure of evidence did not entail further general or exploratory search.
WARRANTLESS SEARCH AND SEIZURE EXPLAINED (contd) Waiver by accused which may be done expressly or impliedly, as long as the waiver is done voluntarily, knowingly and intelligently. The accused should not have felt coerced by the presence, for example, of a band of policemen at his door.
WARRANTLESS SEARCH AND SEIZURE EXPLAINED (contd) Stop and frisk or stop and search principle where officer observed unusual conduct leading him to reasonably conclude that a criminal activity is afoot and person is probably dangerous or armed. He has to identify himself and, if nothing dispels his fear for his or others safety, he may conduct carefully limited search of outer clothing of person to discover weapon.
WARRANTLESS SEARCH AND SEIZURE EXPLAINED (contd)
Moving vehicle because it is not practicable to get a warrant as the vehicle can be moved quickly out of the area or the jurisdiction in which warrant must be sought VALID WARRANTLESS SEARCHES When the person lawfully arrested has in his person anything used in the commission of the crime, or which may be used in evidence in the trial of the case ; When the search is limited to place of arrest (e.g. if arrested outside of house, a search of his room is not permitted); VALID WARRANTLESS SEARCHES After arrest, upon arrival at place of detention; Search limited to person and area wherein which arrested person could reach for a weapon or there is attempt to destroy evidence; Search of moving vehicle where the officer has reasonable or probable cause to believe that he will find the instrumentality or evidence of the crime in the vehicle; OR
VALID WARRANTLESS SEARCHES
Exigent circumstances where some kind of emergency makes obtaining a search warrant impractical, useless, dangerous and unnecessary
EXAMPLES OF INVALID WARRANTLESS SEARCHES Where the accused allowed members of the military to enter his premises, his consequent silence cannot be construed as voluntary submission or an implied acquiescence to a warrantless search and seizure when the raiding team members were intimidatingly numerous and heavily armed. (People v. Compacion, 361 SCRA 540)
EXAMPLES OF INVALID WARRANTLESS SEARCHES Where the marijuana bricks were wrapped in newsprint, there is no apparent illegality to justify its seizure, and the plain view doctrine can no longer provide any basis nor can it be used to extend a general exploratory search from one object to another until something incriminating at last emerges. (People v. Salanguit, 356 SCRA 683) CONTENTS OF APPLICATION FOR A SEARCH WARRANT Facts must be within officers personal knowledge, not hearsay; Facts must be true and sufficiently definite; Facts should not have been merely reported by a person, although reliable, nor simply verified from sources without showing how and when officer made verification; CONTENTS OF APPLICATION FOR A SEARCH WARRANT Statements should not be loose, vague or doubtful nor based on mere suspicion or belief; Description of place to be searched must be such that any officer enforcing the warrant can, with reasonable effort, ascertain and identify the place and that there was prior knowledge of place; and CONTENTS OF APPLICATION FOR A SEARCH WARRANT
Conclusions of law or fact should be avoided; Items to be seized must be indicated to be the subject of an offense or stolen or embezzled property and proceeds or fruits of offense.