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ADMINISTRATIVE CIRCULAR NO.

13

SUPREME COURT CIRCULARS AND ORDERS

TO: ALL EXECUTIVE JUDGES AND JUDGES OF THE


METROPOLITAN TRIAL COURTS, MUNICIPAL TRIAL COURTS
AND MUNICIPAL CIRCUIT TRIAL COURTS

SUBJECT: GUIDELINES AND PROCEDURE IN THE ISSUANCE OF


SEARCH WARRANTS.

Under Administrative Order No. 6 of this Court, dated June 30, 1975, the
Executive Judge derives his powers and prerogatives through delegation
thereof by this Court — some of which are to improve judicial services, in
coordination with court related government agencies, and to further provide
leadership in the management of all courts within his area of administrative
supervision.

As a measure to better serve the public good and to facilitate the


administration of justice, the Court is prescribing hereunder the guidelines in
the issuance of search warrants:
1. All applications for search warrants, if filed with the Executive Judge, shall be assigned,
by raffle, to a judge within his administrative area, under whose direction the search
warrant shall be issued for the search and seizure of personal property;
2. After the application has been raffled and distributed to a Branch, the judge who is
assigned to conduct the examination of the complainant and witnesses should
immediately act on the same, considering that time element and possible leakage of
information are primary considerations in the issuance of search warrants and seizure;
3. Raffling shall be strictly enforced, except only in cases where an application for search
warrant may be filed directly with any judge in whose jurisdiction the place to be searched
is located, after office hours, or during Saturdays, Sundays, and legal holidays, in which
case the applicant is required to certify under oath the urgency of the issuance thereof
after office hours, or during Saturdays, Sundays and legal holidays;
4. If, in the implementation of the search warrant, properties are seized thereunder and the
corresponding case is filed in court, said case shall be distributed by raffle conformably
with Circular No. 7, dated September 23, 1974, of this Court, and thereupon tried and
decided by the judge to whom it has been assigned, and not necessarily by the judge
who is issued the search warrant.
5. New applications. — In order to insure maximum legitimate effect and give meaning and
substance to the constitutional guarantee on the security of every person, his house and
his effects, against unreasonable searches and seizures, the following procedure should
be strictly observed:

a. A warrant may be issued for the search and seizure of personal property — 1) subject of
the offense; 2) stolen or embezzled or are the proceeds or fruits of an offense; and, 3)
used or intended to be used as the means of committing an offense;
b. A warrant shall not issue but upon probable cause in laid connection with one specific
offense to be determined by the judge or such other responsible officer authorized by law
after examination under oath or affirmation of the complainant and the witnesses he may
produce on facts personally known to them, and particularly describing the place to be
searched and the things to be seized so that they could be properly identified;
c. The judge must, before issuing the warrant, personally examine in the form of searching
questions and answers, in writing and under oath, the complainant and any witnesses he
may produce and attach to the record their sworn statements together with any affidavits
submitted;
d. If the judge is thereupon satisfied of the existence of facts upon which the application is
based, or that there is probable cause to believe that they exist, he must issue the
warrant, which must be substantially in the form prescribed by the Rules;
e. Search warrants must be in duplicate, both signed by the judge. The duplicate copy
thereof must be given to the person against whom the warrant is issued and served. Both
copies of the warrant must indicate the date until when the warrant shall be valid and
must direct that it be served in the daytime. If the judge is satisfied that the property is in
the person or in the place ordered to be searched, a direction may be inserted in the
warrants that it be served at any time of the day or night;
f. In every court, there shall be a log under the custody of the Clerk of Court wherein shall
be entered within 24 hours after the issuance of the search warrant, the following:

1. Date and number of the warrant;


2. Name of the issuing judge;
3. Name of the person against whom the warrant is issued;
4. Offense cited in the warrant; and
5. Name of the officer who applied for the warrant and his witnesses.

Each branch or branches of a court shall have a separate and distinct log book from the log book
kept by the other branches of the same court stationed in another city or municipality;

a. The search warrant shall be valid for ten (10) days from date of issuance, and after which
the issuing judge should ascertain if the return has been made, and if there was none,
should summon the person to whom the warrant was issued and require him to explain
why no return was made. If the return has been made, the judge should ascertain from
the officer who seized the property under the warrant if a detailed receipt of the property
seized was left with the lawful occupants of the premises in whose presence the search
and seizure were made, or in the absence of such occupants, whether he left a receipt in
the place in which he found the seized property in the presence of at least two witnesses
of sufficient age and discretion residing in the same locality, and should require that the
property seized by virtue of the warrant shall be delivered to the judge who issued the
warrant. The judge should see to it that an accurate and true inventory of the property
seized duly verified under oath is attached to the return and filed with the court; and
b. The return on the search warrant shall be filed and kept by the custodian of the log book
who shall also enter in the log book, the date of the return, the result, and such other
actions the judge may have taken thereon.

This circular shall take effect immediately from receipt of notice. Melencio-
Herrera and Relova, JJ., are on leave.

Very truly yours,

(Sgd.) GLORIA C. PARAS

Clerk of Court
The Lawphil Project - Arellano Law Foundation

New law makes Microsoft case on


search warrants moot, Supreme Court
says
BY DEBRA CASSENS WEISS
POSTED APRIL 17, 2018, 9:33 AM CDT



 inShare

New legislation allowing warrants to reach emails held on overseas servers has made moot a
pending U.S. Supreme Court case involving Microsoft, the high court ruled on Tuesday.
In a per curiam decision, the Supreme Court said the case should be dismissed.
At issue in the case was whether the Stored Communications Act allowed prosecutors to use a
warrant to obtain Microsoft emails stored on one of its servers in Ireland.
President Donald Trump signed an amendment to the law, known as the Cloud Act, on March 23.
The Cloud Act provides that email providers must comply with court orders for data regardless of
whether it is stored within or outside of the United States.
The Supreme Court noted that prosecutors had already obtained a new warrant for the emails under
the new law. “No live dispute remains between the parties over the issue with respect to which
certiorari was granted,” the court said. “Further, the parties agree that the new warrant has replaced
the original warrant. This case, therefore, has become moot.
Microsoft president Brad Smith issued this statement: “We welcome the Supreme Court’s ruling
ending our case in light of the Cloud Act being signed into to law. Our goal has always been a new
law and international agreements with strong privacy protections that govern how law enforcement
gathers digital evidence across borders. As the governments of the U.K. and Australia have
recognized, the Cloud Act encourages these types of agreements, and we urge the U.S. government
to move quickly to negotiate them.”
See also: Microsoft case underscores legal complications of cloud computing

VIRGINIA LEGAL UPDATE (SEARCH


WARRANTS)
Posted on Friday, January 20, 2017 @ 4:46 pm

Posted by jqlawyers

In Campbell v. Commonwealth the Virginia Court of Appeals ruled on an important issue regarding Search
Warrants in Virginia. The issue in the case was whether failure by the Commonwealth to abide by the
affidavit filing requirement imposed by §19.2-54 required suppression of the evidence obtained during the
search.

The Fourth Amendment protects against unreasonable searches and seizures and establishes the requirement
for search warrants. Over time the Courts have created exceptions to the warrant requirement. This case does
not concern any of the recognized exceptions. In Campbell the Court looked at a situation where a search
warrant was issued, but the filing requirements were not followed. By Virginia Code a search warrant will not
issue until,

“there is filed with the officer authorized to issue the same an affidavit of some person reasonably describing
the place, thing, or person to be searched, the things or persons to be searched for thereunder, alleging briefly
material facts, constituting the probable cause for the issuance of such warrant and alleging substantially the
offense in relation to which such search is to be made and that the object, thing, or person searched for
constitutes evidence of the commission of such offense.”

After the warrant is issued the affidavit, must be filed with the Circuit Court Clerk within 30 days. The Courts
have held the purpose of this requirement is to give a defendant the opportunity to discern that the affidavit
filed in the Circuit Court was the basis for probable cause to issue the original search warrant.

The Court of Appeals held that the language in §19.2-54, required the suppression of evidence obtained from
the search warrant. The Court reversed and remanded the case. The full opinion from the Virginia Court of
Appeals can be viewed below.

JAMES WILLIS CAMPBELL, SR.,


V.
COMMONWEALTH OF VIRGINIA.
Record No. 1404-15-3.

Court of Appeals of Virginia, Lexington.


October 25, 2016.

Appeal from the Circuit Court of Amherst County, J. Michael Gamble, Judge Designate.

Robert C. Goad, III (Shrader Law Office, on brief), for appellant.

Katherine Quinlan Adelfio, Assistant Attorney General (Mark R. Herring, Attorney General, on brief),
for appellee.

Present: Judges Humphreys, AtLee and Senior Judge Clements.

OPINION BY JUDGE JEAN HARRISON CLEMENTS.

An Amherst County grand jury indicted James Willis Campbell, Sr. (appellant) for manufacturing or
possessing methamphetamine with the intent to distribute it. See Code § 18.2-248. Appellant moved
to suppress the evidence seized when the police entered his property and searched it on August 6,
2014 pursuant to a search warrant. The trial court found that the affidavit upon which the warrant
was based was not filed as required by Code § 19.2-54, Virginia’s statute prohibiting general
warrants and detailing the procedures for filing warrants and affidavits. Nonetheless, the trial court
found that probable cause and exigent circumstances existed to justify a search without a warrant,
and denied the motion to suppress the evidence. On appeal, appellant argues the trial court erred in
denying the motion to suppress. For the reasons that follow, we reverse the trial court’s ruling and
remand the matter to the trial court.

BACKGROUND

“When reviewing a trial court’s denial of a defendant’s motion to suppress, we review the evidence in
the light most favorable to the Commonwealth, according it the benefit of all reasonable inferences
fairly deducible from the evidence.” Anderson v. Commonwealth, 279 Va. 85, 90, 688 S.E.2d 605, 607
(2010).

At about 10:30 p.m. on August 6, 2014, a magistrate issued a search warrant for premises owned by
appellant and located in Amherst County. The warrant authorized a search for items related to the
manufacture of methamphetamine. Investigator James Begley appeared before the magistrate and
executed the affidavit in support of the search warrant. The affidavit included information Begley had
received from an informant regarding the existence of a methamphetamine lab on appellant’s
property. The informant had advised Begley that a “meth cook” was planned for later that evening.

Begley left the magistrate’s office with two signed copies of the warrant and the underlying affidavit.
He gave one copy to the Virginia State Police. Begley and officers with the Virginia State Police
tactical team executed the warrant at 11:52 p.m. on August 6, 2014. The officers seized evidence
related to the manufacture of methamphetamine. They arrested appellant and others.

The magistrate retained one copy of the search warrant and affidavit, which contained handwritten
additions to indicate appellant’s property was located in Madison Heights, a community within
Amherst County. Documents relating to the warrant subsequently were faxed from the magistrate’s
office to the clerk of the circuit court for Amherst County, and were filed there on August 7, 2014.
However, only the first page of the affidavit and the search warrant were received and filed. The
second page of the affidavit, containing the facts constituting probable cause, was not received or
filed.
Appellant was indicted for the offense on February 10, 2015. Appellant filed a motion to suppress the
evidence on March 26, 2015 and an amended motion to suppress on April 2, 2015. He alleged that
the evidence seized pursuant to the warrant should be suppressed because the complete affidavit
supporting the warrant had not been filed as required by Code § 19.2-54. Although initially finding
the violation of the filing requirement was a procedural matter, the trial court ultimately concluded
that the failure to file the complete affidavit required suppression of the evidence.

The Commonwealth moved for reconsideration of the trial court’s decision. It also argued that,
notwithstanding any violation of the statutory filing requirement, the good faith exception to the
Fourth Amendment exclusionary rule applied. The Commonwealth also contended probable cause
and exigent circumstances existed to justify a warrantless search of appellant’s property.

At an evidentiary hearing on the motion to reconsider, the Commonwealth was unable to produce
the original copy of the second page of the search warrant affidavit. Placed before the trial court, and
made a part of the record, was the copy of the affidavit Begley had retained. Begley’s copy of the
affidavit differed from the document faxed to the circuit court clerk in that Begley’s copy did not
contain the handwritten notations that appellant’s property was in Madison Heights. The trial court
declined to disturb its prior ruling suppressing the evidence due to the violation of Code § 19.2-54.
The trial court took under advisement the Commonwealth’scontention that probable cause and
exigent circumstances existed to justify a warrantless search of the property.

The trial court then proceeded to hear evidence of the substantive offense, including evidence
obtained from the search on August 6, 2014. At the conclusion of the Commonwealth’s evidence,
the trial court found that probable cause and exigent circumstances justified a warrantless search of
appellant’s property and that the prosecution’s evidence was admissible. Appellant presented no
evidence, and the trial court found him guilty of the charged offense.

DISCUSSION

Code § 19.2-54 provides, in pertinent part:

No search warrant shall be issued until there is filed with the officer authorized to issue the same an affidavit
of some person reasonably describing the place, thing, or person to be searched, the things or persons to be
searched for thereunder, alleging briefly material facts, constituting the probable cause for the issuance of
such warrant and alleging substantially the offense in relation to which such search is to be made and that the
object, thing, or person searched for constitutes evidence of the commission of such offense. The affidavit may
be filed by electronically transmitted (i) facsimile process or (ii) electronic record as defined in § 59.1-
480. Such affidavit shall be certified by the officer who issues such warrant and delivered in person; mailed by
certified mail, return receipt requested; or delivered by electronically transmitted facsimile process or by use of
filing and security procedures as defined in the Uniform Electronic Transactions Act (§ 59.1-479 et seq.) for
transmitting signed documents, by such officer or his designee or agent, to the clerk of the circuit court of the
county or city wherein the search is made, with a copy of the affidavit also being delivered to the clerk of the
circuit court of the county or city where the warrant is issued, if in a different county or city, within seven days
after the issuance of such warrant and shall by such clerks be preserved as a record and shall at all times be
subject to inspection by the public after the warrant that is the subject of the affidavit has been executed or 15
days after issuance of the warrant, whichever is earlier. . . . Each such clerk shall maintain an index of all such
affidavits filed in his office in order to facilitate inspection. No such warrant shall be issued on an affidavit
omitting such essentials, and no general warrant for the search of a house, place, compartment, vehicle or
baggage shall be issued. The term “affidavit” as used in this section, means statements made under oath or
affirmation and preserved verbatim.
Failure of the officer issuing such warrant to file the required affidavit shall not invalidate any search made
under the warrant unless such failure shall continue for a period of 30 days. If the affidavit is filed prior to the
expiration of the 30-day period, nevertheless, evidence obtained in any such search shall not be admissible
until a reasonable time after the filing of the required affidavit.

(Emphasis added).

The statutory framework set forth in Code § 19.2-54 requires that the search warrant affidavit be filed in the
circuit court clerk’s office within a relatively brief period of time after the search warrant is issued or executed.
“Affidavit” means the statements made under oath by the affiant when he sought the search warrant. See id.
See also Quintana v. Commonwealth, 224 Va. 127, 136, 295 S.E.2d 643, 646 (1982) (under Code § 19.2-54,
“`the required affidavit’ means the affidavit required to support issuance of a search warrant”).

In this case, only one page of the affidavit for the search warrant was filed with the clerk of the Circuit Court
of Amherst County. The single page that was filed did not contain Begley’s sworn statements of material facts
constituting probable cause. It is clear, and the parties do not dispute, that the affidavit filing requirement of
Code § 19.2-54 was not satisfied in this instance. Thus, we must determine whether, and under what
circumstances, a violation of the filing requirement of Code § 19.2-54 mandates suppression of evidence
seized pursuant to a warrant.

At the outset, it is important to distinguish the potential remedy of exclusion of evidence pursuant to Code §
19.2-54 from the exclusionary rule recognized to redress violations of the Fourth Amendment of the United
States Constitution. The Fourth Amendment protects against unreasonable searches and seizures by the police,
but “is silent about how this right is to be enforced. To supplement the bare text, [the United States Supreme
Court] created the exclusionary rule, a deterrent sanction that bars the prosecution from introducing evidence
obtained by way of a Fourth Amendment violation.” Davis v. United States, 564 U.S. 229, 231-32 (2011). This
exclusionary rule applies only to constitutional violations, not to alleged violations of state laws governing
police encounters with members of the public. See Virginia v. Moore, 553 U.S. 164, 178 (2008).

“Absent an infirmity of constitutional dimensions, the `mere violation of state statutory law does not require
that the offending evidence be suppressed, unless the statute expressly provides for an evidentiary exclusion
remedy.'” Cutright v. Commonwealth, 43 Va. App. 593, 600, 601 S.E.2d 1, 4 (2004) (quoting Seaton v.
Commonwealth, 42 Va. App. 739, 757 n.7, 595 S.E.2d 9, 17 n.7 (2004)). The Supreme Court of the United
States has made clear that states may impose consequences for violation of a state statute, even where the
search or seizure did not also violate the Fourth Amendment. See Moore, 553 U.S. at 173 (observing that
“when States go above the Fourth Amendment minimum, the Constitution’s protections concerning search and
seizure remain the same”). “A State is free to prefer one search-and-seizure policy among the range of
constitutionally permissible options, but its choice of a more restrictive option does not render the less
restrictive ones unreasonable, and hence unconstitutional.” Id. at 174.

The Supreme Court of Virginia has observed that Code § 19.2-54 “deals with the admissibility of evidence
seized in the search” pursuant to a warrant.[1] Lane v. Commonwealth, 223 Va. 713, 719, 292 S.E.2d 358, 362
(1982). However, no known Virginia case law has concluded that Code § 19.2-54 requires exclusion of
evidence if the requirement for filing a search warrant affidavit was not met. Most of the decisions considering
the application of Code § 19.2-54 have focused on the “notice-based” purpose of the statute and whether the
defendant sustained any prejudice as a result of noncompliance.

In Quintana, the defendant moved to suppress evidence seized in a search because the magistrate failed to
strictly comply with the procedural requirements of Code § 19.2-54. Specifically, the magistrate who issued
the search warrant did not certify the supporting affidavit before he filed it with the clerk of the circuit court,
nor did he do so within thirty days after issuance of the search warrant. Quintana, 224 Va. at 136, 295 S.E.2d
at 646. The Court rejected the argument that “the required affidavit” had not been filed within thirty days and
that consequently the search was invalid. The Court found that the purpose of the certification requirement “in
our statute is to insure that the affidavit filed with the clerk for the information of the accused is the same
affidavit upon which the finding of probable cause was based.” Id. at 136, 295 S.E.2d at 646-47. See
also Garza v. Commonwealth, 228 Va. 559, 566, 323 S.E.2d 127, 131 (1984) (stating the purpose of Code §
19.2-54 “is to give the defendant reasonable opportunity to determine that the affidavit on file is the same one
upon which the determination of probable cause was based”).

In Lockhhart v. Commonwealth, 34 Va. App. 329, 335-36, 542 S.E.2d 1, 4 (2001), the defendant moved to
suppress evidence seized pursuant to a search warrant because the magistrate himself did not file the
supporting affidavit within thirty days of the issuance of the warrant. Rather than the magistrate, the police
officer who obtained the warrant filed the warrant, inventory from the search, and the original supporting
affidavit with the clerk of the circuit court. Not until ten months after the warrant was issued did the magistrate
file the documents required by Code § 19.2-54. See Lockhart, 34 Va. App. at 336-37, 542 S.E.2d at 4. This
Court found that “[t]he purpose of the filing requirement, like the certification requirement, `is to give the
defendant reasonable opportunity to determine that the affidavit on file is the same one upon which the
determination of probable cause was based.'” Id. at 338, 542 S.E.2d at 5 (quoting Robertson v. Rogers, 2 Va.
App. 503, 507, 346 S.E.2d 41, 44 (1986)). We concluded:

[T]he supporting affidavit filed by [the officer] was the same one he subscribed before the magistrate. The
affidavit was on file in the clerk’s office available for inspection by [the defendant] the day after the search
warrant was issued. We find, therefore, that, even though the affidavit was delivered to the clerk’s office by the
officer who executed the search warrant rather than by the magistrate who issued the warrant, the notice-based
purpose of Code § 19.2-54 was achieved and [the defendant] suffered no prejudice as a result of the affidavit
not having been filed by the magistrate.

Id.

Unlike in Quintana and Lockhart, the incomplete affidavit that was filed in this case was not the same one
upon which the determination of probable cause was based. Obviously, a second page, containing Begley’s
statements to support probable cause, was missing. In addition, the one page of the affidavit that was filed did
not contain the handwritten notations regarding Madison Heights that appeared on the copy of the affidavit
later produced by Begley at a suppression hearing. In the course of the proceedings in the trial court, the
Commonwealth was unable to produce the original affidavit certified by the magistrate.

As earlier noted, the final paragraph of Code § 19.2-54 states:

Failure of the officer issuing such warrant to file the required affidavit shall notinvalidate any search made
under the warrant unless such failure shall continue for a period of 30 days. If the affidavit is filed prior to the
expiration of the 30-day period, nevertheless, evidence obtained in any such search shall not be admissible
until a reasonable time after the filing of the required affidavit.

“The primary objective of statutory construction is to ascertain and give effect to legislative
intent.” Commonwealth v. Zamani, 256 Va. 391, 395, 507 S.E.2d 608, 609 (1998). In pursuit of this objective,
“[c]ourts are required to apply the plain language of a statute when possible and may not rewrite it.” Parker v.
Warren, 273 Va. 20, 23, 639 S.E.2d 179, 181 (2007).

The final paragraph of Code § 19.2-54 is no model of clarity regarding the consequences intended by the
General Assembly upon a failure to comply with the statutory filing requirement. But, it provides implicitly
that a search is invalid if the failure to file the required affidavit continues for thirty days. To interpret the
statute otherwise would give no meaning to the word “unless.” “[W]e . . . presume that the legislature chose,
with care, the words it used when it enacted the relevant statute.” Seabolt v. Cnty. of Albemarle, 283 Va. 717,
720, 724 S.E.2d 715, 717 (2012) (quoting Addison v. Jurgelsky, 281 Va. 205, 208, 704 S.E.2d 402, 404
(2011)).
Accordingly, we find that, pursuant to the higher standard set in Code § 19.2-54 by the General Assembly,
see Moore, 553 U.S. at 173, a search is invalid and evidence obtained in the search is inadmissible if the search
warrant affidavit, including the sworn statements providing probable cause, is not filed with the clerk for a
period of thirty days from the issuance or execution of the warrant. Having reached the conclusion that the
evidence obtained pursuant to the search warrant should have been suppressed by operation of state statute, the
question of whether the search and seizure of evidence also violated the Fourth Amendment is irrelevant.[2] As
a matter of state law, the evidence was inadmissible. “The doctrine of judicial restraint dictates that we decide
cases `on the best and narrowest grounds available.'” Commonwealth v. Swann, 290 Va. 194, 196, 776 S.E.2d
265, 267 (2015) (quoting McGhee v. Commonwealth, 280 Va. 620, 626 n.4, 701 S.E.2d 58, 61 n.4 (2010)).

CONCLUSION

For the foregoing reasons, we reverse the trial court’s decision to admit evidence obtained in the search
executed pursuant to the warrant, and reverse appellant’s conviction. We remand the matter to the trial court
for retrial if the Commonwealth be so advised.

Reversed and remanded.

[1] Code § 19.2-54 is titled, “Affidavit preliminary to issuance of search warrant; general search warrant
prohibited; effect of failure to file affidavit.” (Emphasis added). “A title may be read in an attempt to ascertain
an act’s purpose, though it is no part of the act itself.” Newton v. Commonwealth, 29 Va. App. 433, 441-42,
512 S.E.2d 846, 850 (1999) (quoting Hawkins v. Commonwealth, 255 Va. 261, 269, 497 S.E.2d 839, 842
(1998)).

[2] Although finding the evidence should be suppressed due to the violation of Code § 19.2-54, the trial court
found the presence of probable cause and exigent circumstances permitted a warrantless search of appellant’s
property without violation of the Fourth Amendment.

Although the text of the Fourth Amendment does not specify when a search warrant must be obtained, this
Court has inferred that a warrant must generally be secured. “It is a `basic principle of Fourth Amendment
law,'” we have often said, “`that searches and seizures inside a home without a warrant are presumptively
unreasonable.'” Brigham City v. Stuart, 547 U.S. 398, 403 (2006) (quoting Groh v. Ramirez, 540 U.S. 551, 559
(2004)). But we have also recognized that this presumption may be overcome in some circumstances because
“the ultimate touchstone of the Fourth Amendment is `reasonableness.'” Brigham City, supra, at 403. . . .
Accordingly, the warrant requirement is subject to certain reasonable exceptions. Brigham City, supra, at 403.

One well-recognized exception applies when “`the exigencies of the situation’ make the needs of law
enforcement so compelling that [a] warrantless search is objectively reasonable under the Fourth
Amendment.” Mincey v. Arizona, 437 U.S. 385, 394 (1978) . . . .

Kentucky v. King, 563 U.S. 452, 459-60 (2011).

The trial court’s application of the exigent circumstances exception to the warrant requirement was inapposite.
Regardless of the facts and circumstances facing the police officers who arrived at appellant’s property to
search it, the police had in fact obtained a search warrant. There was no warrantless search or seizure in this
instance.
epublic of the Philippines
SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 182601 November 10, 2014

JOEY M. PESTILOS, DWIGHT MACAPANAS, MIGUEL GACES, JERRY FERNANDEZ and


RONALD MUNOZ,Petitioners,
vs.
MORENO GENEROSO and PEOPLE OF THE PHILIPPINES, Respondents.

DECISION

BRION, J.:

We resolve the petition for review on certiorari under Rule 45 of the Rules of Court challenging the
decision1 dated January 21, 2008 and the resolution2 dated April 17, 2008 of the Court of Appeals
(CA) in CAG.R. SP No. 91541.

The appealed decision affirmed the Order dated March 16, 2005 of the Regional Trial Court (RTC),
Branch 96, Quezon City, denying Joey M. Pestilos, Dwight Macapanas, Miguel Gaces, Jerry
Fernandez, and Ronald Munoz's (petitioners) Urgent Motion for Regular Preliminary Investigation, as
well as their subsequent motion for reconsideration.

The Antecedent Facts

The records of the case reveal that on February 20, 2005, at around 3: 15 in the morning, an
altercation ensued between the petitioners and Atty. Moreno Generoso (Atty. Generoso) at
Kasiyahan Street, Barangay Holy Spirit, Quezon City where the petitioners and Atty. Generoso
reside.3

Atty. Generoso called the Central Police District, Station 6 (Batas an Hills Police Station) to report
the incident.4Acting on this report, Desk Officer SPOl Primitivo Monsalve (SPOJ Monsalve)
dispatched SP02 Dominador Javier (SP02 Javier) to go to the scene of the crime and to render
assistance.5 SP02 Javier, together with augmentation personnel from the Airforce, A2C Alano
Sayson and Airman Ruel Galvez, arrived at the scene of the crime less than one hour after the
alleged altercation6 and they saw Atty. Generoso badly beaten.7

Atty. Generoso then pointed to the petitioners as those who mauled him. This prompted the police
officers to "invite" the petitioners to go to Batasan Hills Police Station for investigation.8 The
petitioners went with the police officers to Batasan Hills Police Station.9 At the inquest proceeding,
the City Prosecutor of Quezon City found that the petitioners stabbed Atty. Generoso with a bladed
weapon. Atty. Generoso fortunately survived the attack.10

In an Information dated February 22, 2005, the petitioners were indicted for attempted murder
allegedly committed as follows:

That on or about the 20th h day of February, 2005, in Quezon City, Philippines, the said accused,
conspiring together, confederating with and mutually helping one another, with intent to kill, qualified
with evident premeditation, treachery and taking advantage of superior strength, did then and there,
willfully, unlawfully and feloniously commence the commission of the crime of Murder directly by
overt acts, by then and there stabbing one Atty. MORENO GENEROSO y FRANCO, with a bladed
weapon, but said accused were not able to perform all the acts of execution which would produce
the crime of Murder by reason of some cause/s or accident other than their own spontaneous
desistance, that is, said complainant was able to parry the attack, to his damage and prejudice.

CONTRARY TO LAW.11

On March 7, 2005, the petitioners filed an Urgent Motion for Regular Preliminary Investigation12 on
the ground that they had not been lawfully arrested. They alleged that no valid warrantless arrest
took place since the police officers had no personal knowledge that they were the perpetrators of the
crime. They also claimed that they were just "invited" to the police station. Thus, the inquest
proceeding was improper, and a regular procedure for preliminary investigation should have been
performed pursuant to Rule 112 of the Rules of Court.13

On March 16, 2005, the RTC issued its order denying the petitioners' Urgent Motion for Regular
Preliminary Investigation.14 The court likewise denied the petitioners' motion for reconsideration.15

The petitioners challenged the lower court's ruling before the CA on a Rule 65 petition for certiorari.
They attributed grave abuse of discretion, amounting to lack or excess of jurisdiction, on the R TC
for the denial of their motion for preliminary investigation.16

The Assailed CA Decision

On January 21, 2008, the CA issued its decision dismissing the petition for lack of merit.17 The CA
ruled that the word "invited" in the Affidavit of Arrest executed by SP02 Javier carried the meaning of
a command. The arresting officer clearly meant to arrest the petitioners to answer for the mauling of
Atty. Generoso. The CA also recognized that the arrest was pursuant to a valid warrantless arrest so
that an inquest proceeding was called for as a consequence. Thus, the R TC did not commit any
grave abuse of discretion in denying the Urgent Motion for Regular Preliminary Investigation.

The CA saw no merit in the petitioners' argument that the order denying the Urgent Motion for
Regular Preliminary Investigation is void for failure to clearly state the facts and the law upon which it
was based, pursuant to Rule 16, Section 3 of the Revised Rules of Court. The CA found that the
RTC had sufficiently explained the grounds for the denial of the motion.

The petitioners moved for reconsideration, but the CA denied the motion in its Resolution of April 17,
2008;18 hence, the present petition.

The Issues

The petitioners cited the following assignment of errors:

I.

WHETHER OR NOT THE PETITIONERS WERE VALIDLY ARRESTED WITHOUT A


WARRANT.

II.
WHETHER OR NOT THE PETITIONERS WERE LAWFULLY ARRESTED WHEN THEY
WERE MERELY INVITED TO THE POLICE PRECINCT.

III.

WHETHER OR NOT THE ORDER DENYING THE MOTION FOR PRELIMINARY


INVESTIGATION IS VOID FOR FAILURE TO STATE THE FACTS AND THE LAW UPON
WHICH IT WAS BASED.

The petitioners primarily argue that they were not lawfully arrested. No arrest warrant was ever
issued; they went to the police station only as a response to the arresting officers' invitation. They
even cited the Affidavit of Arrest, which actually used the word "invited. "

The petitioners also claim that no valid warrantless arrest took place under the terms of Rule 112,
Section 7 of the Revised Rules of Court. The incident happened two (2) hours before the police
officers actually arrived at the crime scene. The police officers could not have undertaken a valid
warrantless arrest as they had no personal knowledge that the petitioners were the authors of the
crime.

The petitioners additionally argue that the R TC' s Order denying the Urgent Motion for Regular
Preliminary Investigation is void because it was not properly issued.

The Court's Ruling

We find the petition unmeritorious and thus uphold the RTC Order. The criminal proceedings against
the petitioners should now proceed.

It is unfortunate that the kind of motion that the petitioners filed has to reach this Court for its
resolution. The thought is very tempting that the motion was employed simply to delay the
proceedings and that the use of Rule 65 petition has been abused.

But accepting things as they are, this delay can be more than compensated by fully examining in this
case the legalities surrounding warrantless warrants and establishing the proper interpretation of the
Rules for the guidance of the bench and the bar. These Rules have evolved over time, and the
present case presents to us the opportunity to re-trace their origins, development and the current
applicable interpretation.

I. Brief history on warrantless arrests

The organic laws of the Philippines, specifically, the Philippine Bill of 1902,19 and the
1935,20 197321 and 198722Constitutions all protect the right of the people to be secure in their persons
against unreasonable searches and seizures. Arrest falls under the term "seizure. "23

This constitutional mandate is identical with the Fourth Amendment of the Constitution of the United
States. The Fourth Amendment traces its origins to the writings of Sir Edward Coke24 and The Great
Charter of the Liberties of England (Magna Carta Libertatum), sealed under oath by King John on
the bank of the River Thames near Windsor, England on June 15, 1215.25 The Magna Carta
Libertatum limited the King of England's powers and required the Crown to proclaim certain
liberties26 under the feudal vassals' threat of civil war.27 The declarations in Chapter 29 of the Magna
Carta Libertatum later became the foundational component of the Fourth Amendment of the United
States Constitution.28 It provides:
No freeman shall be taken, or imprisoned, or be disseised29 of his Freehold, or Liberties, or free
Customs, or be outlawed, or exiled, or any otherwise destroyed; nor will we not pass upon him, nor
condemn him, but by lawful Judgment of his Peers, or by the Law of the Land, We will sell to no
man, we will not deny or defer to any man either Justice or Right.30 [Emphasis supplied]

In United States v. Snyder,31 the United States Supreme Court held that this constitutional provision
does not prohibit arrests, searches and seizures without judicial warrant, but only those that are
unreasonable.32 With regard to an arrest, it is considered a seizure, which must also satisfy the test
of reasonableness.33

In our jurisdiction, early rulings of the Court have acknowledged the validity of warrantless arrests.
The Court based these rulings on the common law of America and England that, according to the
Court, were not different from the Spanish laws.34 These court rulings likewise justified warrantless
arrests based on the provisions of separate laws then existing in the Philippines.35

In 1905, the Court held in The United States v. Wilson36 that Section 3737 of Act No. 183, or the
Charter of Manila, defined the arresting officer's power to arrest without a warrant, at least insofar as
the City of Manila was concerned.

In The United States v. Vallejo, et al.,38 the Court held that in the absence of any provisions under
statutes or local ordinances, a police officer who held similar functions as those of the officers
established under the common law of England and America, also had the power to arrest without a
warrant in the Philippines.

The Court also ruled in The United States v. Santos39 that the rules on warrantless arrest were based
on common sense and reason.40 It further held that warrantless arrest found support under the then
Administrative Code41 which directed municipal policemen to exercise vigilance in the prevention of
public offenses.

In The United States v. Fortaleza,42 the Court applied Rules 27, 28, 29 and 3043 of the Provisional
Law for the Application of the Penal Code which were provisions taken from the Spanish Law.

These rules were subsequently established and incorporated in our Rules of Court and
jurisprudence. Presently, the requirements of a warrantless arrest are now summarized in Rule 113,
Section 5 which states that: Section 5. 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.

In cases falling under paragraph (a) and (b) above, the person arrested without a warrant shall be
forth with delivered to the nearest police station or jail and shall be proceeded against in accordance
with section 7 of Rule 112.
A warrantless arrest under the circumstances contemplated under Section 5(a) above has been
denominated as one "in flagrante delicto," while that under Section 5(b) has been described as a
"hot pursuit" arrest.44

For purposes of this case, we shall focus on Section 5(b) – the provision applicable in the present
case. This provision has undergone changes through the years not just in its phraseology but also in
its interpretation in our jurisprudence.

We shall first trace the evolution of Section 5(b) and examine the applicable American and Philippine
jurisprudence to fully understand its roots and its appropriate present application.

II. Evolution of Section 5(b), Rule 113

A. Prior to the 1940 Rules of Court

Prior to 1940, the Court based its rulings not just on American and English common law principle on
warrantless arrests but also on laws then existing in the Philippines. In Fortaleza,45 the Court cited
Rule 28 of the Provisional Law for the Application of the Penal Code which provided that:

Judicial and administrative authorities have power to detain, or to cause to be detained, persons
whom there is reasonable ground to believe guilty of some offense. It will be the duty of the
authorities, as well as of their agents, to arrest:

First. Such persons as may be arrested under the provisions of rule 27.

Second. A person charged with a crime for which the code provides a penalty greater than that of
confinamiento.

Third. A person charged with a crime for which the code provides a penalty less than that of
confinamiento, if his antecedents or the circumstances of the case would warrant the presumption
that he would fail to appear when summoned by the judicial authorities.

The provisions of the preceding paragraph shall not apply, however, to a defendant who gives
sufficient bond, to the satisfaction of the authority or agent who may arrest him, and who it may
reasonably be presumed will appear whenever summoned by the judge or court competent to try
him.

Fourth. A person coining under the provisions of the preceding paragraph may be arrested, although
no formal complaint has been filed against him, provided the following circumstances are present:

First. That the authority or agent had reasonable cause to believe that an unlawful act, amounting to
a crime had been committed.

Second. That the authority or agent had sufficient reason to believe that the person arrested
participated in the commission of such unlawful act or crime." [Emphasis and underscoring supplied]

In the same decision, the Court likewise cited Section 3 7 of the Charter of Manila, which provided
that certain officials, including police officers may, within the territory defined in the law, pursue and
arrest without warrant, any person found in suspicious places or under suspicious circumstances,
reasonably tending to show that such person has committed, or is about to commit any crime or
breach of the peace.
In Santos,46 the Court cited Miles v. Weston,47 which ruled that a peace officer may arrest persons
walking in the street at night when there is reasonable ground to suspect the commission of a crime,
although there is no proof of a felony having been committed.

The Court ruled in Santos that the arresting officer must justify that there was a probable cause for
an arrest without a warrant. The Court defined probable cause as a reasonable ground of suspicion,
supported by circumstances sufficiently strong in themselves as to warrant a reasonable man in
believing that the accused is guilty. Besides reasonable ground of suspicion, action in good faith is
another requirement. Once these conditions are complied with, the peace officer is not liable even if
the arrested person turned out to be innocent.

Based on these discussions, it appears clear that prior to the 1940 Rules of Court, it was not
necessary for the arresting officer to first have knowledge that a crime was actually committed. What
was necessary was the presence of reasonably sufficient grounds to believe the existence of an act
having the characteristics of a crime; and that the same grounds exist to believe that the person
sought to be detained participated in it. In addition, it was also established under the old court rulings
that the phrase "reasonable suspicion" was tantamount to probable cause without which, the
warrantless arrest would be invalid and the arresting officer may be held liable for its breach.48

In The US. v. Hachaw,49 the Court invalidated the warrantless arrest of a Chinaman because the
arresting person did not state in what way the Chinaman was acting suspiciously or the particular act
or circumstance which aroused the arresting person's curiosity.

It appears, therefore, that prior to the establishment in our Rules of Court of the rules on warrantless
arrests, the gauge for a valid warrantless arrest was the arresting officer's reasonable suspicion
(probable cause) that a crime was committed and the person sought to be arrested has participated
in its commission. This principle left so much discretion and leeway on the part of the arresting
officer. However, the 1940 Rules of Court has limited this discretion.

B. The 1940 Rules of Court


(Restricting the arresting
officer's determination of
probable cause)

Rules 27 and 28 of the Provisional Law for the Application of the Penal Code were substantially
incorporated in Section 6, Rule 109 of the 1940 Rules of Court as follows:50

SEC. 6. Arrest without warrant - When lawful. - A peace officer or a private person may, without a
warrant, arrest a person:

(a) When the person to be arrested has committed, is actually committing, or is about to
commit an offense in his presence;

(b) When an offense has in fact been committed, and he has reasonable ground to believe
that the person to be arrested has committed it;

(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.
[Emphasis and underscoring supplied]
These provisions were adopted in toto in Section 6, Rule 113 of the 1964 Rules of Court. Notably,
the 1940 and 1964 Rules have deviated from the old rulings of the Court. Prior to the 1940 Rules,
the actual commission of the offense was not necessary in determining the validity of the warrantless
arrest. Too, the arresting officer's determination of probable cause (or reasonable suspicion) applied
both as to whether a crime has been committed and whether the person to be arrested has
committed it.

However, under the 1940 and the 1964 Rules of Court, the Rules required that there should be
actual commission of an offense, thus, removing the element of the arresting officer's "reasonable
suspicion of the commission of an offense." Additionally, the determination of probable cause, or
reasonable suspicion, was limited only to the determination of whether the person to be arrested has
committed the offense. In other words, the 1940 and 1964 Rules of Court restricted the arresting
officer's discretion in warrantless arrests under Section 6(b), Rule 113 of the 1964 Rules of Court.

C. The more restrictive 1985 Rules of Criminal Procedure

Section 6, Rule 113 of the 1964 Rules of Court again underwent substantial changes and was re-
worded and re-numbered when it became Section 5, Rule 113 of the 1985 Rules of Criminal
Procedure, to wit:

Sec. 5. 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 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. [Emphasis and underscoring supplied]

As amended, Section 5(b ), Rule 113 of the 1985 Rules of Court retained the restrictions introduced
under the 1964 Rules of Court. More importantly, however, it added a qualification that the
commission of the offense should not only have been "committed" but should have been "just
committed." This limited the arresting officer's time frame for conducting an investigation for
purposes of gathering information indicating that the person sought to be arrested has committed the
crime.

D. The Present Revised Rules of Criminal Procedure

Section 5(b ), Rule 113 of the 1985 Rules of Criminal Procedure was further amended with the
incorporation of the word "probable cause" as the basis of the arresting officer's determination on
whether the person to be arrested has committed the crime.

Hence, as presently worded, Section 5(b), Rule 113 of the Revised Rules of Criminal Procedure
provides that:
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.

From the current phraseology of the rules on warrantless arrest, it appears that for purposes of
Section S(b ), the following are the notable changes: first, the contemplated offense was qualified by
the word "just," connoting immediacy; and second, the warrantless arrest of a person sought to be
arrested should be based on probable cause to be determined by the arresting officer based on his
personal knowledge of facts and circumstances that the person to be arrested has committed it.

It is clear that the present rules have "objectified" the previously subjective determination of the
arresting officer as to the (1) commission of the crime; and (2) whether the person sought to be
arrested committed the crime. According to Feria, these changes were adopted to minimize arrests
based on mere suspicion or hearsay.51

As presently worded, the elements under Section 5(b), Rule 113 of the Revised Rules of Criminal
Procedure are: first, an offense has just been committed; and second, the arresting officer has
probable cause to believe based on personal knowledge of facts or circumstances that the person to
be arrested has committed it.

For purposes of this case, we shall discuss these elements separately below, starting with the
element of probable cause, followed by the elements that the offense has just been committed, and
the arresting officer's personal knowledge of facts or circumstances that the person to be arrested
has committed the crime.

i) First Element of Section 5(b), Rule 113 of the Revised Rules of Criminal Procedure: Probable
cause

The existence of "probable cause" is now the "objectifier" or the determinant on how the arresting
officer shall proceed on the facts and circumstances, within his personal knowledge, for purposes of
determining whether the person to be arrested has committed the crime.

i.a) U.S. jurisprudence on probable cause in warrantless arrests

In Payton v. New York,52 the U.S. Supreme Court held that the Fourth Amendment of the Federal
Constitution does not prohibit arrests without a warrant although such arrests must be reasonable.
According to State v. Quinn,53 the warrantless arrest of a person who was discovered in the act of
violating the law is not a violation of due process.

The U.S. Supreme Court, however indicated in Henry v. United States54 that the Fourth Amendment
limited the circumstances under which warrantless arrests may be made. The necessary inquiry is
not whether there was a warrant or whether there was time to get one, but whether at the time of the
arrest probable cause existed. The term probable cause is synonymous to "reasonable cause" and
"reasonable grounds."55

In determining the existence of probable cause, the arresting officer should make a thorough
investigation and exercise reasonable judgment. The standards for evaluating the factual basis
supporting a probable cause assessment are not less stringent in warrantless arrest situation than in
a case where a warrant is sought from a judicial officer. The probable cause determination of a
warrantless arrest is based on information that the arresting officer possesses at the time of the
arrest and not on the information acquired later.56
In evaluating probable cause, probability and not certainty is the determinant of reasonableness
under the Fourth Amendment. Probable cause involves probabilities similar to the factual and
practical questions of everyday life upon which reasonable and prudent persons act. It is a pragmatic
question to be determined in each case in light of the particular circumstances and the particular
offense involved.57

In determining probable cause, the arresting officer may rely on all the information in his possession,
his fair inferences therefrom, including his observations. Mere suspicion does not meet the
requirements of showing probable cause to arrest without warrant especially if it is a mere general
suspicion. Probable cause may rest on reasonably trustworthy information as well as personal
knowledge. Thus, the arresting officer may rely on information supplied by a witness or a victim of a
crime; and under the circumstances, the arresting officer need not verify such information.58

In our jurisdiction, the Court has likewise defined probable cause in the context of Section 5(b), Rule
113 of the Revised Rules of Criminal Procedure.

In Abelita Ill v. Doria et al.,59 the Court held that personal knowledge of facts must be based on
probable cause, which means an actual belief or reasonable grounds of suspicion. The grounds of
suspicion are reasonable when, in the absence of actual belief of the arresting officers, the suspicion
that the person to be arrested is probably guilty of committing the offense is based on actual facts,
i.e., supported by circumstances sufficiently strong in themselves to create the probable cause of
guilt of the person to be arrested. A reasonable suspicion, therefore, must be founded on probable
cause, coupled with good faith on the part of the peace officers making the arrest.

i.b) Probable cause under Section 5(b), Rule 113 of the Revised Rules of Criminal Procedure,
distinguished from probable cause in preliminary investigations and the judicial proceeding for the
issuance of a warrant of arrest

The purpose of a preliminary investigation is to determine whether a crime has been committed and
whether there is probable cause to believe that the accused is guilty of the crime and should be held
for triat.60 In Buchanan v. Viuda de Esteban,61 we defined probable cause as the existence of facts
and circumstances as would excite the belief in a reasonable mind, acting on the facts within the
knowledge of the prosecutor, that the person charged was guilty of the crime for which he was
prosecuted.

In this particular proceeding, the finding of the existence of probable cause as to the guilt of the
respondent was based on the submitted documents of the complainant, the respondent and his
witnesses.62

On the other hand, probable cause in judicial proceedings for the issuance of a warrant of arrest is
defined as the existence of such facts and circumstances that would lead a reasonably discreet and
prudent person to believe that an offense has been committed by the person sought to be arrested.

Hence, before issuing a warrant of arrest, the judge must be satisfied that based on the evidence
submitted, there is sufficient proof that a crime has been committed and that the person to be
arrested is probably guilty thereof. At this stage of the criminal proceeding, the judge is not yet
tasked to review in detail the evidence submitted during the preliminary investigation. It is sufficient
that he personally evaluates the evidence in determining probable cause63 to issue a warrant of
arrest.

In contrast, the arresting officer's determination of probable cause under Section 5(b), Rule 113 of
the Revised Rules of Criminal Procedure is based on his personal knowledge of facts or
circumstances that the person sought to be arrested has committed the crime. These facts or
circumstances pertain to actual facts or raw evidence, i.e., supported by circumstances sufficiently
strong in themselves to create the probable cause of guilt of the person to be arrested. A reasonable
suspicion therefore must be founded on probable cause, coupled with good faith on the part of the
peace officers making.the arrest.

The probable cause to justify warrantless arrest ordinarily signifies a reasonable ground of suspicion
supported by circumstances sufficiently strong in themselves to warrant a cautious man to believe
that the person accused is guilty of the offense with which he is charged,64 or an actual belief or
reasonable ground of suspicion, based on actual facts.65

It is clear therefore that the standard for determining "probable cause" is invariable for the officer
arresting without a warrant, the public prosecutor, and the judge issuing a warrant of arrest. It is the
existence of such facts and circumstances that would lead a reasonably discreet and prudent person
to believe that an offense has been committed by the person sought to be arrested or held for trial,
as the case may be.

However, while the arresting officer, the public prosecutor and the judge all determine "probable
cause," within the spheres of their respective functions, its existence is influenced heavily by the
available facts and circumstance within their possession. In short, although these officers use the
same standard of a reasonable man, they possess dissimilar quantity of facts or circumstances, as
set by the rules, upon which they must determine probable cause.

Thus, under the present rules and jurisprudence, the arresting officer should base his determination
of probable cause on his personal knowledge of facts and circumstances that the person sought to
be arrested has committed the crime; the public prosecutor and the judge must base their
determination on the evidence submitted by the parties.

In other words, the arresting officer operates on the basis of more limited facts, evidence or available
information that he must personally gather within a limited time frame.

Hence, in Santos,66 the Court acknowledged the inherent limitations of determining probable cause in
warrantless arrests due to the urgency of its determination in these instances. The Court held that
one should not expect too much of an ordinary policeman. He is not presumed to exercise the subtle
reasoning of a judicial officer. Oftentimes, he has no opportunity to make proper investigation but
must act in haste on his own belief to prevent the escape of the criminal.67

ii) Second and Third Elements of Section 5(b), Rule 113:


The crime has just been committed/personal
knowledge of facts or circumstances that the person
to be arrested has committed it

We deem it necessary to combine the discussions of these two elements as our jurisprudence
shows that these were usually taken together in the Court's determination of the validity of the
warrantless arrests that were made pursuant to Section 5(b), Rule 113 of the Revised Rules of
Criminal Procedure.

In Posadas v. Ombudsman,68 the killing of Dennis Venturina happened on December 8, 1994. It was
only on December 11, 1994 that Chancellor Posadas requested the NBI's assistance. On the basis
of the supposed identification of two (2) witnesses, the NBI attempted to arrest Francis Carlo
Taparan and Raymundo Narag three (3) days after the commission of the crime. With this set of
facts, it cannot be said that the officers have personal knowledge of facts or circumstances that the
persons sought to be arrested committed the crime. Hence, the Court invalidated the warrantless
arrest.

Similarly, in People v. Burgos,69 one Cesar Masamlok personally and voluntarily surrendered to the
authorities, stating that Ruben Burgos forcibly recruited him to become a member of the NPA, with a
threat of physical harm. Upon receipt of this information, a joint team of PC-INP units was
dispatched to arrest Burgos who was then plowing the field. Indeed, the arrest was invalid
considering that the only information that the police officers had in effecting the arrest was the
information from a third person. It cannot be also said in this case that there was certainty as regards
the commission of a crime.

In People v. del Rosario,70 the Court held that the requirement that an offense has just been
committed means that there must be a large measure of immediacy between the time the offense
was committed and the time of the arrest. If there was an appreciable lapse of time between the
arrest and the commission of the crime, a warrant of arrest must be secured.

The Court held that the arrest of del Rosario did not comply with these requirements because he
was arrested only a day after the commission of the crime and not immediately thereafter.
Additionally, the arresting officers were not present and were not actual eyewitnesses to the crime.
Hence, they had no personal knowledge of facts indicating that the person to be arrested had
committed the offense. They became aware of del Rosario's identity as the driver of the getaway
tricycle only during the custodial investigation.

In People v. Cendana,71 the accused was arrested one (1) day after the killing of the victim and only
on the basis of information obtained from unnamed sources. The unlawful arrest was held invalid.

In Rolito Go v. CA,72 the arrest of the accused six ( 6) days after the commission of the crime was
held invalid because the crime had not just been committed. Moreover, the "arresting" officers had
no "personal knowledge" of facts indicating that the accused was the gunman who had shot the
victim. The information upon which the police acted came from statements made by alleged
eyewitnesses to the shooting; one stated that the accused was the gunman; another was able to
take down the alleged gunman's car's plate number which turned out to be registered in the name of
the accused's wife. That information did not constitute "personal knowledge."

In People v. Tonog, Jr.,73 the warrantless arrest which was done on the same day was held valid. In
this case, the arresting officer had knowledge of facts which he personally gathered in the course of
his investigation, indicating that the accused was one of the perpetrators.

In People v. Gerente,74 the policemen arrested Gerente only about three (3) hours after Gerente and
his companions had killed the victim. The Court held that the policemen had personal knowledge of
the violent death of the victim and of facts indicating that Gerente and two others had killed him. The
warrantless arrest was held valid.

In People v. Alvario,75 the warrantless arrest came immediately after the arresting officers received
information from the victim of the crime. The Court held that the personal knowledge of the arresting
officers was derived from the information supplied by the victim herself who pointed to Alvario as the
man who raped her at the time of his arrest. The Court upheld the warrantless arrest. In People v.
Jayson,76 there was a shooting incident. The policemen who were summoned to the scene of the
crime found the victim. The informants pointed to the accused as the assailant only moments after
the shooting. The Court held that the arresting officers acted on the basis of personal knowledge of
the death of the victim and of facts indicating that the accused was the assailant. Thus, the
warrantless arrest was held valid.
In People v. Acol,77 a group held up the passengers in a jeepney and the policemen immediately
responded to the report of the crime. One of the victims saw four persons walking towards Fort
Bonifacio, one of whom was wearing his jacket. The victim pointed them to the policemen. When the
group saw the policemen coming, they ran in different directions. The Court held that the arrest was
valid.

In Cadua v. CA,78 there was an initial report to the police concerning a robbery. A radio dispatch was
then given to the arresting officers, who proceeded to Alden Street to verify the authenticity of the
radio message. When they reached the place, they met with the complainants who initiated the
report about the robbery. Upon the officers' invitation, the victims joined them in conducting a search
of the nearby area where the accused was spotted in the vicinity. Based on the reported statements
of the complainants, he was identified as a logical suspect in the offense just committed. Hence, the
arrest was held valid.

In Doria,79 the Court held that Section S(b ), Rule 113 of the 1985 Rules of Criminal Procedure does
not require the arresting officers to personally witness the commission of the offense.

In this case, P/Supt. Doria alleged that his office received a telephone call from a relative of Rosa
Sia about a shooting incident. He dispatched a team headed by SP03 Ramirez to investigate the
incident. SP03 Ramirez later reported that a certain William Sia was wounded while Judge Abelita
III, who was implicated in the incident, and his wife just left the place of the incident. P/Supt. Doria
looked for Abelita III and when he found him, he informed him of the incident report. P/Supt. Doria
requested Abelita III to go with him to the police headquarters as he had been reported to be
involved in the incident. Abelita III agreed but suddenly sped up his vehicle and proceeded to his
residence where P/Supt. Doria caught him up as he was about to run towards his house.

The police officers saw a gun in the front seat of the vehicle beside the driver's seat as Abelita III
opened the door. They also saw a shotgun at the back of the driver's seat. The police officers
confiscated the firearms and arrested Abelita III. The Court held that the petitioner's act of trying to
get away, coupled with the incident report which they investigated, were enough to raise a
reasonable suspicion on the part of the police authorities as to the existence of probable cause.
Based on these discussions, it appears that the Court's appreciation of the elements that "the
offense has just been committed" and ''personal knowledge of facts and circumstances that the
person to be arrested committed it" depended on the particular circumstances of the case. However,
we note that the element of ''personal knowledge of facts or circumstances" under Section S(b ),
Rule 113 of the Revised Rules of Criminal Procedure requires clarification.

The phrase covers facts or, in the alternative, circumstances. According to the Black's Law
Dictionary,80"circumstances are attendant or accompanying facts, events or conditions. "
Circumstances may pertain to events or actions within the actual perception, personal evaluation or
observation of the police officer at the scene of the crime. Thus, even though the police officer has
not seen someone actually fleeing, he could still make a warrantless arrest if, based on his personal
evaluation of the circumstances at the scene of the crime, he could determine the existence of
probable cause that the person sought to be arrested has committed the crime. However, the
determination of probable cause and the gathering of facts or circumstances should be made
immediately after the commission of the crime in order to comply with the element of immediacy.

In other words, the clincher in the element of ''personal knowledge of facts or circumstances" is the
required element of immediacy within which these facts or circumstances should be gathered. This
required time element acts as a safeguard to ensure that the police officers have gathered the facts
or perceived the circumstances within a very limited time frame. This guarantees that the police
officers would have no time to base their probable cause finding on facts or circumstances obtained
after an exhaustive investigation.

The reason for the element of the immediacy is this - as the time gap from the commission of the
crime to the arrest widens, the pieces of information gathered are prone to become contaminated
and subjected to external factors, interpretations and hearsay. On the other hand, with the element
of immediacy imposed under Section 5(b), Rule 113 of the Revised Rules of Criminal Procedure, the
police officer's determination of probable cause would necessarily be limited to raw or
uncontaminated facts or circumstances, gathered as they were within a very limited period of time.
The same provision adds another safeguard with the requirement of probable cause as the standard
for evaluating these facts of circumstances before the police officer could effect a valid warrantless
arrest.

In light of the discussion above on the developments of Section 5(b), Rule 113 of the Revised Rules
of Criminal Procedure and our jurisprudence on the matter, we hold that the following must be
present for a valid warrantless arrest: 1) the crime should have been just committed; and 2) the
arresting officer's exercise of discretion is limited by the standard of probable cause to be
determined from the facts and circumstances within his personal knowledge. The requirement of the
existence of probable cause objectifies the reasonableness of the warrantless arrest for purposes of
compliance with the Constitutional mandate against unreasonable arrests.

Hence, for purposes of resolving the issue on the validity of the warrantless arrest of the present
petitioners, the question to be resolved is whether the requirements for a valid warrantless arrest
under Section 5(b), Rule 113 of the Revised Rules of Criminal Procedure were complied with,
namely: 1) has the crime just been committed when they were arrested? 2) did the arresting officer
have personal knowledge of facts and circumstances that the petitioners committed the crime? and
3) based on these facts and circumstances that the arresting officer possessed at the time of the
petitioners' arrest, would a reasonably discreet and prudent person believe that the attempted
murder of Atty. Generoso was committed by the petitioners? We rule in the affirmative.

III. Application of Section S(b), Rule 113 of the Revised Rules


of Criminal Procedure in the present case: there was a
valid warrantless arrest

We deem it necessary to review the records of the CA because it has misapprehended the facts in
its decision.81From a review of the records, we conclude that the police officers had personal
knowledge of facts or circumstances upon which they had properly determined probable cause in
effecting a warrantless arrest against the petitioners. We note, however, that the determination of the
facts in the present case is purely limited to the resolution of the issue on the validity of the
warrantless arrests of the petitioners.

Based on the police blotter82 entry taken at 4:15 a.m. on February 20, 2005, the date that the alleged
crime was committed, the petitioners were brought in for investigation at the Batasan Hills Police
Station. The police blotter stated that the alleged crime was committed at 3:15 a.m. on February 20,
2005, along Kasiyahan St., Brgy. Holy Spirit, Quezon City.

The time of the entry of the complaint in the police blotter at 4:15 a.m., with Atty. Generoso and the
petitioners already inside the police station, would connote that the arrest took place less than one
hour from the time of the occurrence of the crime. Hence, the CA finding that the arrest took place
two (2) hours after the commission of the crime is unfounded.
The arresting officers' personal observation of Atty. Generoso's bruises when they arrived at the
scene of the crime is corroborated by the petitioners' admissions that Atty: Generoso indeed suffered
blows from petitioner Macapanas and his brother Joseph Macapanas,83 although they asserted that
they did it in self-defense against Atty. Generoso.

Atty. Generoso's bruises were also corroborated by the Medico-Legal Certificate84 that was issued by
East Avenue Medical Center on the same date of the alleged mauling. The medical check-up of Atty.
Generoso that was made about 8:10 a.m. on the date of the incident, showed the following findings:
"Contusion Hematoma, Left Frontal Area; Abrasion, T6 area, right midclavicular line periorbital
hematoma, left eye; Abrasion, distal 3rd posterolateral aspect of right forearm; Abrasion, 4th and fifth
digit, right hand; Abrasion on area of ih rib (L ant. Chest wall), tenderness on L peripheral area, no
visible abrasion. In addition, the attending physician, Dr. Eva P. Javier, diagnosed Atty. Generoso of
contusion hematoma, periorbital L., and traumatic conjunctivitis, o.s.

To summarize, the arresting officers went to the scene of the crime upon the complaint of Atty.
Generoso of his alleged mauling; the police officers responded to the scene of the crime less than
one (1) hour after the alleged mauling; the alleged crime transpired in a community where Atty.
Generoso and the petitioners reside; Atty. Generoso positively identified the petitioners as those
responsible for his mauling and, notably, the petitioners85 and Atty. Generoso86 lived almost in the
same neighborhood; more importantly, when the petitioners were confronted by the arresting
officers, they did not deny their participation in the incident with Atty. Generoso, although they
narrated a different version of what transpired.87

With these facts and circumstances that the police officers gathered and which they have personally
observed less than one hour from the time that they have arrived at the scene of the crime until the
time of the arrest of the petitioners, we deem it reasonable to conclude that the police officers had
personal knowledge of facts or circumstances justifying the petitioners' warrantless arrests. These
circumstances were well within the police officers' observation, perception and evaluation at the time
of the arrest. These circumstances qualify as the police officers' personal observation, which are
within their personal knowledge, prompting them to make the warrantless arrests.

Similar to the factual antecedents in Jayson,88 the police officers in the present case saw Atty.
Generoso in his sorry bloodied state. As the victim, he positively identified the petitioners as the
persons who mauled him; however, instead of fleeing like what happened in Jayson, the petitioners
agreed to go with the police officers.

This is also similar to what happened in People v. Tonog, Jr.89 where Tonog did not flee but
voluntarily went with the police officers. More than this, the petitioners in the present case even
admitted to have been involved in the incident with Atty. Generoso, although they had another
version of what transpired.

In determining the reasonableness of the warrantless arrests, it is incumbent upon the courts to
consider if the police officers have complied with the requirements set under Section 5(b), Rule 113
of the Revised Rules of Criminal Procedure, specifically, the requirement of immediacy; the police
officer's personal knowledge of facts or circumstances; and lastly, the propriety of the determination
of probable cause that the person sought to be arrested committed the crime.

The records show that soon after the report of the incident occurred, SPOl Monsalve immediately
dispatched the arresting officer, SP02 Javier, to render personal assistance to the victim.90 This fact
alone negates the petitioners' argument that the police officers did not have personal knowledge that
a crime had been committed - the police immediately responded and had personal knowledge that a
crime had been committed. 1âw phi1
To reiterate, personal knowledge of a crime just committed under the terms of the above-cited
provision, does not require actual presence at the scene while a crime was being committed; it is
enough that evidence of the recent commission of the crime is patent (as in this case) and the police
officer has probable cause to believe based on personal knowledge of facts or circumstances, that
the person to be arrested has recently committed the crime.

Considering the circumstances of the stabbing, particularly the locality where it took place, its
occasion, the personal circumstances of the parties, and the immediate on-the-spot investigation
that took place, the immediate and warrantless arrests of the perpetrators were proper.
Consequently, the inquest proceeding that the City Prosecutor conducted was appropriate under the
circumstances.

IV. The term "invited" in the Affidavit of Arrest is construed to


mean as an authoritative command

After the resolution of the validity of the warrantless arrest, the discussion of the petitioners' second
issue is largely academic. Arrest is defined as the taking of a person into custody in order that he
may be bound to answer for the commission of an offense. An arrest 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.91 Thus, application of actual force, manual touching of the body, physical restraint or a formal
declaration of arrest is not required. It is enough that there be an intention on the part of one of the
parties to arrest the other and the intent of the other to submit, under the belief and impression that
submission is necessary.92

Notwithstanding the term "invited" in the Affidavit of Arrest,93 SP02 Javier could not but have the
intention of arresting the petitioners following Atty. Generoso' s account. SP02 Javier did not need to
apply violent physical restraint when a simple directive to the petitioners to follow him to the police
station would produce a similar effect. In other words, the application of actual force would only be
an alternative if the petitioners had exhibited resistance.

To be sure, after a crime had just been committed and the attending policemen have acquired
personal knowledge of the incidents of the crime, including the alleged perpetrators, the arrest of the
petitioners as the perpetrators pointed to by the victim, was not a mere random act but was in
connection with a particular offense. Furthermore, SP02 Javier had informed the petitioners, at the
time of their arrest, of the charges against them before taking them to Batasan Hills Police Station
for investigation.94

V. The Order denying the motion for preliminary


investigation is valid

In their last ditch attempt at avoidance, the petitioners attack the R TC Order denying the petitioners'
urgent motion for regular preliminary investigation for allegedly having been issued in violation of
Article VIII, Section 14 of the 1987 Constitution95 and Rule 16, Section 3 of the Revised Rules of
Court.96

The RTC, in its Order dismissing the motion, clearly states that the Court is not persuaded by the
evidentiary nature of the allegations in the said motion of the accused. Aside from lack of clear and
convincing proof, the Court, in the exercise of its sound discretion on the matter, is legally bound to
pursue and hereby gives preference to the speedy disposition of the case."

We do not see any taint of impropriety or grave abuse of discretion in this Order. The RTC, in
resolving the motion, is not required to state all the facts found in the record of the case. Detailed
evidentiary matters, as the RTC decreed, is best reserved for the full-blown trial of the case, not in
the preliminary incidents leading up to the trial.

Additionally, no less than the Constitution itself provides that it is the decision that should state
clearly and distinctly the facts and the law on which it is based. In resolving a motion, the court is
only required to state clearly and distinctly the reasons therefor. A contrary system would only
prolong the proceedings, which was precisely what happened to this case. Hence, we uphold the
validity of the RTC's order as it correctly stated the reason for its denial of the petitioners' Urgent
Motion for Regular Preliminary Investigation. WHEREFORE, premises considered, we hereby DENY
the petition, and hereby AFFIRM the decision dated January 21, 2008 and the resolution dated April
17, 2008 of the Court of Appeals in CA-G.R. SP No. 91541. The City Prosecutor of Quezon City is
hereby ORDERED to proceed with the criminal proceedings against the petitioners.

SO ORDERED.

ARTURO D. BRION
Associate Justice

WE CONCUR:

ANTONIO T. CARPIO
Associate Justice
Chairperson

MARIANO C. DEL CASTILLO JOSE CATRAL MENDOZA


Associate Justice Associate Justice

MARVIC M.V.F. LEONEN


Associate Justice

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, and the Division Chairperson's Attestation, I
certify that the conclusions in the above Decision had been reached in consultation before the case
was assigned to the writer of the opinion of the Court's Division.

ANTONIO T. CARPIO

G.R. No. 197293 April 21, 2014

ALFREDO C. MENDOZA, Petitioner,


vs.
PEOPLE OF THE PHILIPPINES AND JUNO CARS, INC., Respondents.

DECISION

LEONEN, J.:

While the determination of probable cause to charge a person of a crime is the sole function of the.
prosecutor, the trial court may, in the protection of one's fundamental right to liberty, dismiss the
case if, upon a personal assessment of the evidence, it finds that the evidence does not establish
probable cause.

This is a petition for review on certiorari1 assailing the Court of Appeals' decision2 dated January 14,
2011, which reversed the Regional Trial Court's dismissal of the complaint against petitioner Alfredo
C. Mendoza for qualified theft and estafa.

This case stems from a complaint-affidavit filed by Juno Cars, Inc. through its representative, Raul
C. Evangelista, on January 8, 2008 for qualified theft and estafa against Alfredo.3

In the complaint-affidavit, Juno Cars alleged that on June 2, 2007, it hired Alfredo as Trade-In/Used
Car Supervisor. On November 19, 2007, its Dealer/Operator, Rolando Garcia, conducted a partial
audit of the used cars and discovered that five (5) cars had been sold and released by Alfredo
without Rolando’s or the finance manager’s permission.4

The partial audit showed that the buyers of the five cars made payments, but Alfredo failed to remit
the payments totalling ₱886,000.00. It was further alleged that while there were 20 cars under
Alfredo’s custody, only 18 were accounted for. Further investigation revealed that Alfredo failed to
turn over the files of a 2001 Hyundai Starex and a Honda City 1.5 LXI. Juno Cars alleged that taking
into account the unremitted amounts and the acquisition cost of the Honda City, Alfredo pilfered a
total amount of ₱1,046,000.00 to its prejudice and damage.5

In his counter-affidavit, Alfredo raised, among others, Juno Cars’ supposed failure to prove
ownership over the five (5) cars or its right to possess them with the purported unremitted payments.
Hence, it could not have suffered damage.6

On March 4, 2008, Provincial Prosecutor Rey F. Delgado issued a Resolution7 finding probable
cause and recommending the filing of an information against Alfredo for qualified theft and estafa.

Alfredo moved for reconsideration, but the motion was denied.8 He then filed a petition for review
with the Department of Justice on May 16, 2008.9

While Alfredo’s motion for reconsideration was still pending before the Office of the City Prosecutor
of Mandaluyong, two informations for qualified theft10 and estafa11 were filed before the Regional Trial
Court, Branch 212, Mandaluyong City. On March 31, 2008, Alfredo filed a motion for determination
of probable cause12 before the trial court. On April 28, 2008, he also filed a motion to defer
arraignment.

Several clarificatory hearings were scheduled but were not conducted.13 On February 4, 2009, the
parties agreed to submit all pending incidents, including the clarificatory hearing, for resolution.14

On March 3, 2009, the trial court, through Presiding Judge Rizalina Capco-Umali, issued an
order15 dismissing the complaint, stating that:

After conducting an independent assessment of the evidence on record which includes the assailed
Resolution dated 04 March 2008, the court holds that the evidence adduced does not support a
finding of probable cause for the offenses of qualified theft and estafa. x x x.16

Juno Cars filed a motion for reconsideration, which the trial court denied on July 3, 2009.17
Juno Cars then filed a petition for certiorari with the Court of Appeals, arguing that the trial court
acted without or in excess of its jurisdiction and with grave abuse of discretion when it dismissed the
complaint. It argued that "the determination of probable cause and the decision whether or not to file
a criminal case in court, rightfully belongs to the public prosecutor."18

On January 14, 2011, the Court of Appeals rendered a decision,19 reversed the trial court, and
reinstated the case. In its decision, the appellate court ruled that the trial court acted without or in
excess of its jurisdiction "in supplanting the public prosecutor’s findings of probable cause with her
own findings of insufficiency of evidence and lack of probable cause."20

Aggrieved, Alfredo filed a petition for review under Rule 45 before this court. In essence, he argued
that the trial court was correct in finding that there was no probable cause as shown by the evidence
on record. He argued that "judicial determination of probable cause is broader than [the] executive
determination of probable cause"21 and that "[i]t is not correct to say that the determination of
probable cause is exclusively vested on the prosecutor x x x."22

In its comment,23 Juno Cars argued that Alfredo presented questions, issues, and arguments that
were a mere rehash of those already considered and passed upon by the appellate court.

The Office of the Solicitor General, arguing for public respondent, stated in its comment24 that the
appellate court correctly sustained the public prosecutor in his findings of probable cause against
Alfredo. Since there was no showing of grave abuse of discretion on the part of Prosecutor Rey F.
Delgado, the trial court should respect his determination of probable cause.

In his reply,25 Alfredo reiterated that "judicial determination of probable cause[,] while not a superior
faculty[,] covers a broader encompassing perspective in the disposition of the issue on the existence
of probable cause."26 He argued that the findings of the trial court should be accorded greater weight
than the appellate court’s. It merely reviewed the findings of the trial court.

The primordial issue is whether the trial court may dismiss an information filed by the prosecutor on
the basis of its own independent finding of lack of probable cause.

Time and again, this court has been confronted with the issue of the difference between the
determination of probable cause by the prosecutor on one hand and the determination of probable
cause by the judge on the other. We examine these two concepts again.

Juno Cars filed a complaint against Alfredo for qualified theft27 and estafa under Article 315, fourth
paragraph, no. 3(c)28 of the Revised Penal Code. Since qualified theft is punishable by reclusion
perpetua, a preliminary investigation must first be conducted "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," in accordance with Rule 112, Section 1 of the
Rules on Criminal Procedure.

At this stage, the conduct of the preliminary investigation and the subsequent determination of the
existence of probable cause lie solely within the discretion of the public prosecutor.29 If upon
evaluation of the evidence, the prosecutor finds sufficient basis to find probable cause, he or she
shall then cause the filing of the information with the court.

Once the information has been filed, the judge shall then "personally evaluate the resolution of the
prosecutor and its supporting evidence"30 to determine whether there is probable cause to issue a
warrant of arrest. At this stage, a judicial determination of probable cause exists.
In People v. Castillo and Mejia,31 this court has stated:

There are two kinds of determination of probable cause: executive and judicial. The executive
determination of probable cause is one made during preliminary investigation. It is a function that
properly pertains to the public prosecutor who is given a broad discretion to determine whether
probable cause exists and to charge those whom he believes to have committed the crime as
defined by law and thus should be held for trial. Otherwise stated, such official has the quasi-judicial
authority to determine whether or not a criminal case must be filed in court. Whether or not that
function has been correctly discharged by the public prosecutor, i.e., whether or not he has made a
correct ascertainment of the existence of probable cause in a case, is a matter that the trial court
itself does not and may not be compelled to pass upon.

The judicial determination of probable cause, on the other hand, is one made by the judge to
ascertain whether a warrant of arrest should be issued against the accused. The judge must satisfy
himself that based on the evidence submitted, there is necessity for placing the accused under
custody in order not to frustrate the ends of justice. If the judge finds no probable cause, the judge
cannot be forced to issue the arrest warrant.32

The difference is clear: The executive determination of probable cause concerns itself with whether
there is enough evidence to support an Information being filed. The judicial determination of
probable cause, on the other hand, determines whether a warrant of arrest should be issued. In
People v. Inting:33

x x x Judges and Prosecutors alike should distinguish the preliminary inquiry which determines
probable cause for the issuance of a warrant of arrest from the preliminary investigation proper
which ascertains whether the offender should be held for trial or released. Even if the two inquiries
are conducted in the course of one and the same proceeding, there should be no confusion about
the objectives. The determination of probable cause for 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 and, therefore, whether or not he should be subjected to the
expense, rigors and embarrassment of trial—is the function of the Prosecutor.34 (Emphasis supplied)

While it is within the trial court’s discretion to make an independent assessment of the evidence on
hand, it is only for the purpose of determining whether a warrant of arrest should be issued. The
judge does not act as an appellate court of the prosecutor and has no capacity to review the
prosecutor’s determination of probable cause; rather, the judge makes a determination of probable
cause independent of the prosecutor’s finding.

People v. Court of Appeals and Jonathan Cerbo35 discussed the rationale. In that case, Jonathan
Cerbo allegedly shot Rosalinda Dy in the presence of his father, Billy Cerbo. An information for
murder was filed against Jonathan Cerbo. The daughter of Rosalinda Dy, as private complainant,
executed a complaint-affidavit charging Billy Cerbo with conspiracy. The prosecutor then filed a
motion to amend the information, which was granted by the court. The information was then
amended to include Billy Cerbo as one of the accused, and a warrant of arrest was issued against
him.

Billy Cerbo filed a motion to quash the warrant arguing that it was issued without probable cause.
The trial court granted this motion, recalled the warrant, and dismissed the case against him. The
Court of Appeals affirmed this dismissal. This court, however, reversed the Court of Appeals and
ordered the reinstatement of the amended information against Billy Cerbo, stating that:
In granting this petition, we are not prejudging the criminal case or the guilt or innocence of Private
Respondent Billy Cerbo. We are simply saying that, as a general rule, if the information is valid on its
face and there is no showing of manifest error, grave abuse of discretion or prejudice on the part of
the public prosecutor, courts should not dismiss it for ‘want of evidence,’ because evidentiary
matters should be presented and heard during the trial. The functions and duties of both the trial
court and the public prosecutor in "the proper scheme of things" in our criminal justice system should
be clearly understood.

The rights of the people from what could sometimes be an "oppressive" exercise of government
prosecutorial powers do need to be protected when circumstances so require. But just as we
recognize this need, we also acknowledge that the State must likewise be accorded due process.
Thus, when there is no showing of nefarious irregularity or manifest error in the performance of a
public prosecutor’s duties, courts ought to refrain from interfering with such lawfully and judicially
mandated duties.

In any case, if there was palpable error or grave abuse of discretion in the public prosecutor’s finding
of probable cause, the accused can appeal such finding to the justice secretary and move for the
deferment or suspension of the proceedings until such appeal is resolved.36 (Emphasis supplied)

In this case, the resolution dated March 4, 2008 of Prosecutor Rey F. Delgado found that the facts
and evidence were "sufficient to warrant the indictment of [petitioner] x x x."37 There was nothing in
his resolution which showed that he issued it beyond the discretion granted to him by law and
jurisprudence.

While the information filed by Prosecutor Delgado was valid, Judge Capco-Umali still had the
discretion to make her own finding of whether probable cause existed to order the arrest of the
accused and proceed with trial.

Jurisdiction over an accused is acquired when the warrant of arrest is served. Absent this, the court
cannot hold the accused for arraignment and trial.

Article III, Section 2 of the Constitution states:

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.

The Constitution prohibits the issuance of search warrants or warrants of arrest where the judge has
not personally determined the existence of probable cause. The phrase "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" allows a determination of probable cause by the judge ex parte.

For this reason, Section 6, paragraph (a) of Rule 112 of the Rules on Criminal Procedure mandates
the judge to "immediately dismiss the case if the evidence on record fails to establish probable
cause." Section 6, paragraph (a) of Rule 112 reads:

Section 6. When warrant of arrest may issue. — (a) By the Regional Trial Court. — Within ten (10)
days from the filing of the complaint or information, the judge shall personally evaluate the resolution
of the prosecutor and its supporting evidence. He may immediately dismiss the case if the evidence
on record clearly fails to establish probable cause. If he finds probable cause, he shall issue a
warrant of arrest, or a commitment order if the accused has already been arrested pursuant to a
warrant issued by the judge who conducted the preliminary investigation or when the complaint or
information was filed pursuant to section 7 of this Rule. In case of doubt on the existence of probable
cause, the judge may order the prosecutor to present additional evidence within five (5) days from
notice and the issue must be resolved by the court within thirty (30) days from the filing of the
complaint of information.

In People v. Hon. Yadao:38

Section 6, Rule 112 of the Rules of Court gives the trial court three options upon the filing of the
criminal information: (1) dismiss the case if the evidence on record clearly failed to establish
probable cause; (2) issue a warrant of arrest if it finds probable cause; and (3) order the prosecutor
to present additional evidence within five days from notice in case of doubt as to the existence of
probable cause.

But the option to order the prosecutor to present additional evidence is not mandatory. The court’s
1âw phi1

first option under the above is for it to "immediately dismiss the case if the evidence on record clearly
fails to establish probable cause." That is the situation here: the evidence on record clearly fails to
establish probable cause against the respondents.39 (Emphasis supplied)

It is also settled that "once a complaint or information is filed in court, any disposition of the case,
whether as to its dismissal or the conviction or the acquittal of the accused, rests in the sound
discretion of the court."40

In this case, Judge Capco-Umali made an independent assessment of the evidence on record and
concluded that "the evidence adduced does not support a finding of probable cause for the offenses
of qualified theft and estafa."41Specifically, she found that Juno Cars "failed to prove by competent
evidence"42 that the vehicles alleged to have been pilfered by Alfredo were lawfully possessed or
owned by them, or that these vehicles were received by Alfredo, to be able to substantiate the
charge of qualified theft. She also found that the complaint "[did] not state with particularity the exact
value of the alleged office files or their valuation purportedly have been removed, concealed or
destroyed by the accused,"43 which she found crucial to the prosecution of the crime of estafa under
Article 315, fourth paragraph, no. 3(c) of the Revised Penal Code. She also noted that:

x x x As a matter of fact, this court had even ordered that this case be set for clarificatory hearing to
clear out essential matters pertinent to the offense charged and even directed the private
complainant to bring documents relative to the same/payment as well as affidavit of
witnesses/buyers with the end view of satisfying itself that indeed probable cause exists to commit
the present case which private complainant failed to do.44

Accordingly, with the present laws and jurisprudence on the matter, Judge Capco-Umali correctly
dismissed the case against Alfredo.

Although jurisprudence and procedural rules allow it, a judge must always proceed with caution in
dismissing cases due to lack of probable cause, considering the preliminary nature of the evidence
before it. It is only when he or she finds that the evidence on hand absolutely fails to support a
finding of probable cause that he or she can dismiss the case. On the other hand, if a judge finds
probable cause, he or she must not hesitate to proceed with arraignment and trial in order that
justice may be served.
WHEREFORE, the petition is GRANTED. The decision dated January 14, 2011 of the Court of
Appeals in CA-G.R. SP. No. 110774 is REVERSED and SET ASIDE. Criminal Case Nos. MC08-
11604-05 against Alfredo C. Mendoza are DISMISSED.

SO ORDERED.

MARVIC MARIO VICTOR F. LEONEN


Associate Justice

WE CONCUR:

PRESBITERO J. VELASCO, JR.


Associate Justice
Chairperson

DIOSDADO M. PERALTA ROBERTO A. ABAD


Associate Justice Associate Justice

JOSE CATRAL MENDOZA


Associate Justice

ATTESTATION

I attest that the conclusions in the above Decision had been reached in consultation before the case
was assigned to the writer of the opinion of the Court's Division.

PRESBITERO J. VELASCO, JR.


Associate Justice
Chairperson, Third Division

Republic of the Philippines


SUPREME COURT
Manila

FIRST DIVISION

G.R. No. 205926 July 22, 2015

ALVIN COMERCIANTE y GONZALES, Petitioner,


vs.
PEOPLE OF THE PHILIPPINES, Respondent.

DECISION

PERLAS-BERNABE, J.:

Assailed in this petition for review on certiorari1 are the Decision 2 dated October 20, 2011 and the
Resolution 3dated February 19, 2013 of the Court of Appeals (CA) in CA-G.R. CR No. 32813, which
affirmed in toto the Judgment 4dated July 28, 2009 of the Regional Trial Court of Mandaluyong City,
Branch 213 (RTC) in Crim. Case No. MC-03-7242-D convicting petitioner Alvin Comerciante y
Gonzales (Comerciante) of the crime of illegal Possession of Dangerous Drugs defined and
penalized under Section 11, Article II of Republic Act No. (RA) 9165, 5 otherwise known as the
Comprehensive Dangerous Drugs Act of 2002.

The Facts

On July 31, 2003, an Information was filed before the RTC charging Comerciante of violation of
Section 11, Article II of RA 9165, to wit:

That on or about the 30th day of July 2003, in the City of Mandaluyong, Philippines, a place within the
jurisdiction of this Honorable Court, the above-named accused, not having been lawfully authorized
to possess any dangerous drugs, did then and there willfully, unlawfully and feloniously and
knowingly have in his possession, custody and control Two (2) heat-sealed transparent plastic
sachet (sic) each containing 0.15 gram (sic) and 0.28 gram (sic) of white crystalline substance with a
total of 0.43 grams which was found positive to the test for Methamphetamine Hydrochloride
commonly known as "shabu", a dangerous drug.

CONTRARY TO LA W. 6

According to the prosecution, at around 10 o'clock in the evening of July 30, 2003, Agent Eduardo
Radan (Agent Radan) of the NARCOTICS group and P03 Bienvy Calag II (P03 Calag) were aboard
a motorcycle, patrolling the area while on their way to visit a friend at Private Road, Barangay Hulo,
Mandaluyong City. Cruising at a speed of 30 kilometers per hour along Private Road, they spotted,
at a distance of about 10 meters, two (2) men - later identified as Comerciante and a certain Erick
Dasilla 7 (Dasilla) - standing and showing "improper and unpleasant movements," with one of them
handing plastic sachets to the other. Thinking that the sachets may contain shabu, they immediately
stopped and approached Comerciante and Dasilla At a distance of around five (5) meters, P03
Calag introduced himself as a police officer, arrested Comerciante and Dasilla, and confiscated two
(2) plastic sachets containing white crystalline substance from them. A laboratory examination later
confirmed that said sachets contained methamphetamine hydrochloride or shabu. 8

After the prosecution rested its case, Dasilla filed a demurrer to evidence, which was granted by the
RTC, thus his acquittal. However, due to Comerciante's failure to file his own demurrer to evidence,
the RTC considered his right to do so waived and ordered him to present his evidence.9

In his defense, Comerciante averred that P03 Calag was looking for a certain "Barok", who was a
notorious drug pusher in the area, when suddenly, he and Dasilla, who were just standing in front of
a jeepney along Private Road, were arrested and taken to a police station. There, the police officers
claimed to have confiscated illegal drugs from them and were asked money in exchange for their
release. When they failed to accede to the demand, they were brought to another police station to
undergo inquest proceedings, and thereafter, were charged with illegal possession of dangerous
drugs. 10

The RTC Ruling

In. a Judgment 11 dated July 28, 2009, the RTC found Comerciante guilty beyond reasonable doubt
of violation of Section 11, Article II of RA 9165, and accordingly, sentenced him to suffer the penalty
of imprisonment for twelve (12) years and one (1) day to twenty (20) years, and ordered him to pay a
fine in the amount of ₱300,000.00.12

The R TC found that P03 Calag conducted a valid warrantless arrest on Comerciante, which yielded
two (2) plastic sachets containing shabu. In this relation, the R TC opined that there was probable
cause to justify the warrantless arrest, considering that P03 Calag saw, in plain view, that
Comerciante was carrying the said sachets when he decided to approach and apprehend the latter.
Further, the RTC found that absent any proof of intent that P03 Calag was impelled by any malicious
motive, he must be presumed to have properly performed his duty when he arrested Comerciante.13

Aggrieved, Comerciante appealed to the CA.

The CA Ruling

In a Decision 14 dated October 20, 2011 the CA affirmed Comerciante's conviction. It held that P03
Calag had probable cause to effect the warrantless arrest of Comerciante, given that the latter was
committing a crime in flagrante delicto; and that he personally saw the latter exchanging plastic
sachets with Dasilla. According to the CA, this was enough to draw a reasonable suspicion that
those sachets might be shabu, and thus, P03 Calag had every reason to inquire on the matter right
then and there.15

Dissatisfied, Comerciante moved for reconsideration 16 which was, however, denied in a


Resolution 17 dated February 19, 2013. Hence, this petition. 18

The Issue before the Court

The core issue for the Court's resolution is whether or not the CA correctly affirmed Comerciante's
conviction for violation of Section 11, Article II of RA 9165.

In his petition, Comerciante essentially contends that P03 Carag did not effect a valid warrantless
arrest on him. Consequently, the evidence gathered as a result of such illegal warrantless arrest,
i.e., the plastic sachets containing shabu should be rendered inadmissible, necessarily resulting in
his acquittal. 19

On the other hand, the Office of the Solicitor General, on behalf of respondent People of the
Philippines, maintains that Comerciante's warrantless arrest was validly made pursuant to the "stop
and frisk" rule, especially considering that he was caught in flagrante delicto in possession of illegal
drugs. 20

The Court's Ruling

The petition is meritorious.

Section 2, Article III 21 of the Constitution mandates that a search and seizure must be carried out
through or on the strength of a judicial warrant predicated upon the existence of probable cause; in
the absence of such warrant, such search and seizure becomes, as a general rule, "unreasonable"
within the meaning of said constitutional provision. To protect people from unreasonable searches
and seizures, Section 3 (2), Article III 22 of the Constitution provides an exclusionary rule which
instructs that evidence obtained and confiscated on the occasion of such unreasonable searches
and seizures are deemed tainted and should be excluded for being the proverbial fruit of a
poisonous tree. In other words, evidence obtained from unreasonable searches and seizures shall
be inadmissible in evidence for any purpose in any proceeding. 23

The exclusionary rule is not, however, an absolute and rigid proscription. One of the recognized
exceptions established by jurisprudence is a search incident to a lawful arrest. 24 In this instance, the
law requires that there first be a lawful arrest before a search can be made - the process cannot be
reversed. 25 Section 5, Rule 113 of the Revised Rules on Criminal Procedure lays down the rules on
lawful warrantless arrests, as follows:

SEC.5. 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.

In cases falling under paragraphs (a) and (b) above, the person arrested without a warrant shall be
forthwith delivered to the nearest police station or jail and shall be proceeded against in accordance
with Section 7 of Rule 112.

The aforementioned provision provides three (3) instances when a warrantless arrest may be
lawfully effected: (a) arrest of a suspect in flagrante delicto; (b) arrest of a suspect where, based on
personal knowledge of the arresting officer, there is probable cause that said suspect was the
perpetrator of a crime which had just been committed; ( c) arrest of a prisoner who has escaped
from custody serving final judgment or temporarily confined during the pendency of his case or has
escaped while being transferred from one confinement to another. 26

For a warrantless arrest under Section 5 (a) to operate, two (2) elements must concur, namely: (a)
the person to be arrested must execute an overt act indicating that he has just committed, is actually
committing, or is attempting to commit a crime; and ( b) such overt act is done in the presence or
within the view of the arresting officer. 27 On the other hand, Section 5 (b) requires for its application
that at the time of the arrest, an offense had in fact just been committed and the arresting officer had
personal knowledge of facts indicating that the accused had committed it.28

In both instances, the officer's personal knowledge of the fact of the commission of an offense is
absolutely required. Under Section 5 (a), the officer himself witnesses the crime; while in Section (b),
he knows for a fact that a crime has just been committed. 29

A judicious review of the factual milieu of the instant case reveals that there could have been no
lawful warrantless arrest made on Comerciante. P03 Calag himself admitted that he was aboard a
motorcycle cruising at a speed of around 30 kilometers per hour when he saw Comerciante and
Dasilla standing around and showing "improper and unpleasant movements," with one of them
handing plastic sachets to the other. On the basis of the foregoing, he decided to effect an arrest.
P03 Calag's testimony on direct examination is revelatory:

Pros. Silao:

Q: Now on July 30, 2003 around 10:00 o'clock in the evening, kindly tell the court where were you?

A: We were then conducting our patrol on a motorbike ma' am.


xxxx

Q: And who were with you while you were patrolling?

A: Eduardo Radan, Ma' am.

Q: And who is this Eduardo Radan?

A: He is an agent of the Narcotics Group, ma'am.

Q: While you were along Private Road, Hulo, Mandaluyong City, what unusual incident that
happened if any?

A: We spotted somebody who was then as if handing a plastic sachet to someone.

xxxx

Q: Now how far were you when you saw this incident from these two male persons you already
identified?

A: About ten (10) meters away ma'am.

Q: What were their positions in relation to you when you saw them in that particular act?

A: They were quite facing me then.

0: What was the speed of your motorcycle when you were traversing this Private Road, Hulo,
Mandaluyong City?

A: About thirty (30) kilometers per hour, ma'am.

Q: And who was driving the motorcycle?

A: Eduardo Radan, ma'am.

Q: When you spotted them as if handing something to each other, what did you do?

A: We stopped ma'am.

Q: And how far were you from them when you stopped, more or less?

A: We passed by them for a short distance before we stopped ma'am.

Q: And after you passed by them and you said you stopped, what was the reaction of these two
male persons?

A: They were surprised, ma'am.

xxxx
Q: And what was their reaction when you said you introduced yourself as police officer?

A: They were surprised.

Q: When you say "nabigla" what was their reaction that made you say that they were surprised?

A: They were stunned.

Q: After they were stunned, what did you do next, police officer?

A: I arrested them, ma' am. I invited them.

Q: What did you say to them? How did you invite them? In short, napakasimple Lang ng tanong ko
sa yo eh. Did you say anything?

Court:

Mr. Witness, stop making unnecessary movements, just listens.

Pros. Silao: Are you fit to testify? May sakit ka ba o wala? Witness: Wala po.

Pros. Silao: Eh, bakit di ka makapagsalita?

Court: You keep touching your eyes. Just relax. Answer the question, ano sinabi mo sa kanila?

Pros. Silao: Are you fit to testify? Wala ka bang sakit?

Witness: Wala po.

xxxx

Q: From what portion of his body, I am referring to Alvin Comerciante did you recover the plastic
sachet?

A: From his hand ma'am.

Q: Left or right hand?

Pros. Silao: You cannot recall? Hindi mo matandaan. Sabihin mo Kung Hindi mo matandaan, no
problem. Kaliwa, kanan or you cannot recall? 30

(Emphases and underscoring supplied)

On the basis of such testimony, the Court finds it highly implausible that P03 Calag, even assuming
that he has perfect vision, would be able to identify with reasonable accuracy - especially from a
distance of around 10 meters, and while aboard a motorcycle cruising at a speed of 30 kilometers
per hour - miniscule amounts of white crystalline substance inside two (2) very small plastic sachets
held by Comerciante. The Court also notes that no other overt act could be properly attributed to
Comerciante as to rouse suspicion in the mind of P03 Calag that the former had just committed, was
committing, or was about to commit a crime. Verily, the acts of standing around with a companion
and handing over something to the latter cannot in any way be considered criminal acts. In fact,
even if Comerciante and his companion were showing "improper and unpleasant movements" as put
by P03 Calag, the same would not have been sufficient in order to effect a lawful warrantless arrest
under Section 5 (a), Rule 113 of the Revised Rules on Criminal Procedure. 31 That his reasonable
suspicion bolstered by (a) the fact that he had seen his fellow officers arrest persons in possession
of shabu; and (b) his trainings and seminars on illegal drugs when he was still assigned in the
province are insufficient to create a conclusion that what he purportedly saw in Comerciante was
indeed shabu. 32

Neither has the prosecution established that the rigorous conditions set forth in Section 5 (b), Rule
113, have been complied with, i.e., that an offense had in fact just been committed and the arresting
officer had personal knowledge of facts indicating that the accused had committed it. As already
discussed, the factual backdrop of the instant case failed to show that P03 Calag had personal
knowledge that a crime had been indisputably committed by Comerciante. Verily, it is not enough
that the arresting officer had reasonable ground to believe that the accused had just committed a
crime; a crime must, in fact, have been committed first, which does not obtain in this case. 33

In this relation, the Court finds respondent's assertion that there was a valid "stop and frisk" search
made on Comerciante untenable. In People v. Cogaed, 34 the Court had an opportunity to
exhaustively explain "stop and frisk" searches:

"Stop and frisk" searches (sometimes referred to as Terry searches) are necessary for law
enforcement. That is, law enforcers should be given the legal arsenal to prevent the commission of
1a\^ /phi1

offenses. However, this should be balanced with the need to protect the privacy of citizens in
accordance with Article III, Section 2 of the Constitution.

The balance lies in the concept of "suspiciousness" present where the police officer finds himself or
herself in. This may be undoubtedly based on the experience of the police officer. Experienced
police officers have personal experience dealing with criminals and criminal behavior. Hence, they
should have the ability to discern - based on facts that they themselves observe - whether an
individual is acting in a suspicious manner. Clearly, a basic criterion would be that the police officer,
with his or her personal knowledge, must observe the facts leading to the suspicion of an illicit act.

xxxx

Normally, "stop and frisk" searches do not give the law enforcer an opportunity to confer with a judge
to determine probable cause. In Posadas v. Court of Appeals, one of the earliest cases adopting the
"stop and frisk" doctrine in Philippine jurisprudence, this court approximated the suspicious
circumstances as probable cause:

The probable cause is that when the petitioner acted suspiciously and attempted to flee with the buri
bag there was a probable cause that he was concealing something illegal in the bag and it was the
right and duty of the police officers to inspect the same.

For warrantless searches, probable cause was defined as "a reasonable ground of suspicion
supported by circumstances sufficiently strong in themselves to warrant a cautious man to believe
that the person accused is guilty of the offense with which he is charged.

Malacat v. Court of Appeals clarifies the requirement further. It does not have to be probable cause,
but it cannot be mere suspicion. It has to be a genuine reason to serve the purposes of the "stop and
frisk" exception:
Other notable points of Terry are that while probable cause is not required to conduct a "stop and
frisk," it nevertheless holds that mere suspicion or a hunch will not validate a "stop and frisk." A
genuine reason must exist, in light of the police officer's experience and surrounding conditions, to
warrant the belief that the person detained has weapons concealed about him.

In his dissent for Esquillo v. People, Justice Bersamin reminds us that police officers must not rely
on a single suspicious circumstance. There should be "presence of more than one seemingly
innocent activity, which, taken together, warranted a reasonable inference of criminal activity." The
Constitution prohibits "umeasonable searches and seizures." Certainly, reliance on only one
suspicious circumstance or none at all will not result in a reasonable search. [35]] (Emphases and
underscoring supplied)

In this case, the Court reiterates that Comerciante' s acts of standing around with a companion and
handing over something to the latter do not constitute criminal acts. These circumstances are not
1âw phi 1

enough to create a reasonable inference of criminal activity which would constitute a "genuine
reason" for P03 Calag to conduct a "stop and frisk" search on the former. In this light, the "stop and
frisk" search made on Comerciante should be deemed unlawful.

In sum, there was neither a valid warrantless arrest nor a valid "stop and frisk" search made on
Comerciante. As such, the shabu purportedly seized from him is rendered inadmissible in evidence
for being the proverbial fruit of the poisonous tree. Since the confiscated shabu is the very corpus
delicti of the crime charged, Comerciante must necessarily be acquitted and exonerated from all
criminal liability.

WHEREFORE, the petition is GRANTED. Accordingly, 'the Decision dated October 20, 2011 and the
Resolution dated February 19, 2013 of the Court of Appeals in CA-G.R. CR No. 32813 are hereby
REVERSED and SET ASIDE. Accordingly, petitioner Alvin Comerciante y Gonzales is hereby
ACQUITTED of the crime of violating Section 11, Article II of Republic Act No. 9165. The Director of
the Bureau of Corrections is ordered to cause his immediate release, unless he is being lawfully held
for any other reason.

SO ORDERED.

ESTELA M PERLAS-BERNABE
Associate Justice

WE CONCUR:

DIOSDADO M. PERALTA*
Associate Justice

LUCAS P.BERSAMIN** JOSE PORTUGAL PEREZ


Associate Justice Associate Justice

MARVIC M.V.F. LEONEN***


Associate Justice

ATTESTATION

I attest that the conclusions in the above Decision had been reached in consultation before the case
was assigned to the writer of the opinion of the Court's Division.
LUCAS P.BERSAMIN
Associate Justice
Acting Chairperson

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, and the Acting Division Chairperson's
Attestation, I certify that the conclusions in the above Decision had been reached in consultation
before the case was assigned to the

WARRANTLESS ARREST & SEARCH: A POLICE PRIMER


 PRINT

Date: Monday, 30 January 2012 00:24

Note: This speech was originally published in The Manila Bulletin Newspaper Online
(www.mb.com.ph). Due to its importance to the PNP, this office reproduced it entirely for the
information of our policemen in the field.

(Speech of Sen. MIRIAM DEFENSOR SANTIAGO at the Philippine National Police


Headquarters, Camp Crame, on March 13, 2006.)

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.

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.

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.

* Mentally disabled persons on emergency grounds.

* Arrest based on unreasonable suspicion.

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 Anti-Wiretapping Law provides that an
illegal wiretap is inadmissible 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 stop-and-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 visual search. The vehicle itself should not be searched, and its occupants should not be
subjected to a body 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.

As a lawyer and a former RTC judge, I am a very strong law and-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.

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

It is not the guns or armament or the money they can pay. It is the close cooperation that makes
them win the day. It is not the individual or the police as a whole but the everlasting teamwork.

Last Updated (Monday, 30 January 2012 00:52)


Written by Administrator

Published: 07 March 2017

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