Sources: 1. Rules of Court 110-127; 2. 1987 Constitution more particularly under Article III (Bill of Rights); 3.

Various Acts passed by the legislature like B.P. Bldg. 127; 4. Presidential Decrees; 5. Executive Orders; 6. Decisions of the Supreme Court. Criminal Procedure = This is concerned with the procedural steps through which a criminal case passes, commencing with the initial investigation of a crime and concluding with the unconditional release of the offender. Criminal Law 1. Substantive 2. It declares what acts are punishable 3. It defines crimes, treats of their nature and provides for their punishment. Criminal Procedure 1. Remedial 2. It provides how the act is to be punished. 3. It provides for the method by which a person accused of a crime is arrested,tried or punished.

2. Territory = the offense must have been committed within its territorial jurisdiction (nonwaivable). 3. Person of the accused = the person charged with the offense must have been brought to its presence for trial, forcible by warrant of arrest or upon his voluntary submission to the court. NOTE: the general rule is that the question of jurisdiction may be raised at any stage of the proceedings. The exception is where there has been estoppels and laches of the party who raises the question. Jurisdiction over the subject matter = Derived from the law. It can never be acquired solely by consent of the accused. = Objection that the court has no jurisdiction over the subject matter may be made at any stage of the proceeding, and the right to make such objection is never waived. Jurisdiction over the person of the accused = May be acquired by consent of the accused or by waiver of objections. = If he fails to make his objection in time, he will be deemed to have waived it.

Systems of Criminal Procedure: 1. Inquisitorial System = The prosecution of crimes is wholly in the hands of the prosecuting officer and the Court. The procedure is characterized by secrecy and the presence of the accused before the magistrate is not necessary. 2. Accusatorial System = It requires all crimes except the private offenses which must be commenced by the complaint of the offended party, to be prosecuted by a public prosecutor. Trial is conducted publicly and the right of the accused against self-incrimination is guaranteed. 3. Mixed System = It is a commixture of the inquisitorial and the accusatorial system. CRIMINAL JURISDICTION = It is the authority to hear and try a particular offense and impose the punishment for it (PP. vs. Mariano, 71 SCRA 500). REQUISITES FOR A VALID EXERCISE OF CRIMINAL JURISDICTION: 1. Subject Matter = the offence by virtue of the imposable penalty or its nature, is one which the court is by law authorized to take cognizance of.

DETERMINATION OF CRIMINAL PROCEDURE: 1. Determined by the allegations in the complaint or information not by the results of proof or by the trial courts appreciation of the evidence presented. 2. Determined by the law in force at the time of the institution of the criminal action, ONCE VESTED, IT CANNOT BE WITHDRAWN BY: a) Subsequent valid amendment of the information; or b) Subsequent statutory amendment of the rules of jurisdiction, UNLESS the amendatory law provides otherwise. JURISDICTION OVER COMPLEX CRIMES = jurisdiction over the whole complex crime is lodged with the trial court having jurisdiction to impose the maximum and the most serious penalty imposable of an offense forming part of the complex crime (Cuyos vs. Garcia, 160 SCRA 302). COMPLEX CRIME = two or more crimes are actually committed but constitute only one crime in the eyes

the proper remedy is a petition to quash it, NOT a petition for habeas corpus, since the court in the latter case may only order his release but not enjoin the further prosecution of the preliminary examination of the accused (Alimpoos vs. CA, 106 SCRA 159) NOTE: posting of bail does not bar one from questioning illegal arrest (Section 26, Rule 114, Rules of Court) Sec. 2. Arrest, How made An arrest is made by an actual restraint of a person to be arrested, or by his submission to the custody of the person making the arrest. No violence or unnecessary force shall be used in making an arrest. The person arrested shall not be subject to a greater restraint than is necessary for his detention. REASONABLE AMOUNT OF FORCE MAY BE USED TO EFFECT ARREST: It is a principle very generally accepted that an officer, having the right to arrest an offender, may use such force as is necessary to effect his purpose, and to a great extent he is made the judge of the degree of force that may be property exerted. A police officer, in the performance of his duty, must stand his ground and cannot, like a private individual, take refuge in flight. His duty requires him to overcome his opponent (Vaicorza vs. People, 30 SCRA 143)

Sec. 4. Execution of warrant. The head of the office to whom the warrant of arrest was delivered for execution shall cause the warrant to be executed within ten (10) days from its receipt. Within ten (10) days after the expiration of the period, the officer to whom it was assigned for execution shall make a report to the judge who issued the warrant. In case of his failure to execute the warrant, he shall state the reason therefore. PERIOD OF WARRANT OF ARREST: Unlike a search warrant, the validity of which is limited to ten (10) days, after which it becomes void (Sec. 9, Rule 126), no time limit is fixed for the validity of a warrant of arrest. This must be so, for the return mentioned in this section refers to the physical delivery of the very same copy of the process to the issuing court, but the report of the officer charged with its execution on the action taken by him thereon. In short, the 10day period is only a directive to the officer executing the warrant to make a return to the court (PP. vs. Givera, 349 SCRA 513) 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. LAWFUL WARRANTLESS ARREST: 1. When, IN HIS PRESENCE, the person to be arrested has committed, is actually committing, or is attempting to commit an offense (in flagrante delicto arrests) When an offense has in fact just been committed, and he has probable cause to believe based on PERSONAL KNOWLEDGE of fact and circumstance that the person to be arrested has committed it (Doctrine of Hot Pursuit). NOTE: There must be a large measure of immediacy between the time the offense was committed and the time of arrest. 3. 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

Upon the arrest, the following may be confiscated from the person arrested: 1. Objects subject of the offense or used or intended to be used in the commission of the crime; Objects which are the fruits of the crime; Those which might be used by the arrested person to commit violence or to escape; Dangerous weapons and those which may be used as evidence in the case.

2. 3.

4.

NOTE: Arrest must precede the search; the process cannot be reversed. Nevertheless, a search substantially contemporaneous with an arrest can precede the arrest if the police have probable cause to make the arrest at the outset of the search. Reliable information alone is not sufficient to justify warrantless arrest under Sec. 5 of Rule 113. The Rules require, in addition, that the accused performs some overt act that would indicate that he has committed, is actually committing, or is attempting to commit an offense (People vs. Tudtud, G.R. No. 144036, Sept. 26, 2003). Sec. 3. Duty of arresting officer. It shall be the duty of the officer executing the warrant to arrest the accused and deliver him to the nearest police station or jail without unnecessary delay. A duly issued warrant not only authorized the proper officer to make an arrest thereunder but also makes it his duty to carry out without delay the commands thereof. Once the arrest is made, the officer executing the warrant is directed to deliver the person arrested to the nearest police station or jail.

2.

while his case is pending, or has escaped while being transferred from one confinement to another. The same is founded on the principle that at the time of the arrest, the escapee is in the continuous act of committing a crime (Evasion of the service of sentence). 4. Where a person who has been lawfully arrested escapes or is rescued. By the bondsman for the purpose of surrendering the accused. Where the accused attempts to leave the country without permission of the court.

or night, even on a Sunday. This is justified by the necessity of preserving the public peace. Sec. 7. Method of arrest by officer by virtue of warrant. When making an arrest by virtue of a warrant, the officer shall inform the person to be arrested of the cause of the arrest and the fact that a warrant has been issued for his arrest, except when he flees or forcibly resists before the officer has opportunity to so inform him, or when the giving of such information will imperil the arrest. The officer need not have the warrant in his possession at the time of the arrest but after the arrest, if the person arrested so requires, the warrant shall be shown to him as soon as practicable. Under this rule, an arrest may be made even if the police officer is not in possession of the warrant of arrest (Mallari vs. Court of Appeals, 265 SCRA 456). Exhibition of the warrant prior to the arrest is not necessary. However, if after the arrest, the person arrested so requires, the warrant shall be shown to him as soon as practicable. Sec. 8. Method of arrest by officer without warrant. When making an arrest without a warrant, the officer shall inform the person to be arrested of his authority and the cause of the arrest, unless the latter is either engaged in the commission of an offense, is pursued immediately after its commission, has escaped, flees, or forcibly resists before the officer has opportunity to so inform him, or when the giving of such information will imperil the arrest. Sec. 9. Method of arrest by private person. When making an arrest, a private person shall inform the person to be arrested of the intention to arrest him and the case of the arrest, unless the latter is either engaged in the commission of an offense, is pursued immediately after its commission, or has escaped, flees, or forcibly resists before the person making the arrest has opportunity to so inform him, or when the giving of such information will imperil the arrest. Citizens arrest refers to arrest effected by a private person. Method of Arrest Sec. 7 The officer shall inform the person to be arrested the cause of the arrest and the fact that a warrant has been issued for his arrest. Note: The officer need not have the warrant in his possession at the time of the arrest BUT must show the same after the arrest, if the person arrested so requires. Sec. 8 The officer shall inform the person to be arrested of his authority and the cause of the arrest without a warrant. Exception to the rule on giving information 1. When the person to be arrested flees; 2. When he forcibly resists before the officer has an opportunity to inform him; and When the giving of such information will imperil the arrest.

5.

6.

In cases falling under nos. 1 and 2, the person arrested shall be delivered to the nearest police station or jail and shall be proceeded against in accordance with section 6 of Rule 112. If the arrest was effected without warrant, the arresting officer must comply with the provisions of Art. 125 of the RPC, otherwise, he may be held criminally liable for arbitrary detention under Art. 124 of the RPC. IN FLAGRANTE DELICTO ARRESTS An offense is committed in the presence or within the view of the person making the arrest when he sees the offense, although at a distance, or hears the disturbances created thereby and proceeds at once to the scene thereof, or the offense is continuing, or has been consummated, at the time the arrest is made (People vs. Evaristo, 216 SCRA 431) NOTE: Personal knowledge must be based upon PROBABL E 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 (Posadas vs. Ombudsman, 341 SCRA 388) RULES ON ILLEGALITY OF ARREST: 1. An accused who enters his plea of NOT guilty and participates in the trial waives the illegality of the arrest. Objection to the illegality must be raised before arraignment, otherwise it is deemed waived, as the accused in this case, has voluntarily submitted himself to the jurisdiction of the court. Illegality of warrantless arrest maybe cured by filing of an information in court and the subsequent issuance by the judge of a warrant of arrest. Once a person has been duly charged in court, he may no longer question his detention by petition for habeas corpus; his remedy is to quash the information and/or the warrant of arrest.

3.

2.

3.

1.

Sec. 6. Time of making arrest. An arrest may be made on any day and at any time of the day or night. Unlike a search warrant which must be served only in daytime, an arrest may be made on any day and at any time of the day

When the person to be arrested is engaged in the commission of an offense or is pursued immediately after its commission;

2.

When the escapes, flees, or forcibly resists before the officer has an opportunity to so inform him; and When the giving of such information will imperil the arrest.

Sec. 12. Right to break out from building or enclosure. Whenever an officer has entered the building or enclosure in accordance with the preceding section, he may break out therefrom when necessary to liberate himself. A private person making an arrest CANNOT break in or out of a building or enclosure because only officers are allowed by law to do so. Sec. 13. Arrest after escape or rescue. If a person lawfully arrested escapes or is rescued, any person may immediately pursue or retake him without a warrant at any time and in any place within the Philippines. Where a person lawfully arrested escapes or is rescued, any person may immediately pursue or retake him without a warrant at any time in any place within the country. The pursuit must be immediate. NOTE: the fugitive may be retaken by any person who may not necessarily be the same person from whose custody he escaped or was rescued. Sec. 14. Right of attorney or relative to visit person arrested. Any member of the Philippine Bar shall, at the request of the person arrested or of another acting in his behalf, have the right to visit and confer privately with such person in the jail or any other place of custody at any hour of the day or night. Subject to reasonable regulations, a relative of the person arrested can also exercise the same right. R.A. No. 7438 defined certain rights of persons arrested, detained, or under custodial investigation, with the penalties for violations thereof. REQUISITE OF A VALID WARRANT: a) Probable Cause. Such facts and circumstances antecedent to the issuance of the warrant that in themselves are sufficient to induce a cautious man to rely on them and act in pursuance thereof (People vs. Syjuco, 64 Phil. 667; Alvarez vs. CFI, 64 Phil. 33). For a search: such facts and circumstances which would lead a reasonably discreet and prudent man to believe that an offense are in the place sought to be searched (Burgos vs. Chief of Staff, 133 SCRA 800). See also Corro vs. Lising, 137 SCRA 541, Prudence vs. Dayrit, 180 SCRA 69. i) Must refer to one specific offense (Asian Surety vs. Herrera, 54 SCRA 312; Castro vs. Pabalan, 70 SCRA 466) However, in People vs. Dichoso, 223 SCRA 174, it was held that the Dangerous Drugs Act of 1972 is a special law that deals specifically with dangerous drugs which are subsumed into prohibited and regulated drugs, and defines and penalizes categories of offenses which are closely related or which belong to the same class or species; thus, one search warrant may be validly issued for several violations thereof. ii) In cases involving violation of PD 49 (Protection of Intellectual Property), a basic requirement for the

3.

Sec. 9

The private person shall inform the person to be arrested of the intention to arrest him and the case of the arrest. NOTE: Private person must deliver the arrested person to the nearest police station or jail. Otherwise, he may be held criminally liable for illegal detention.

1.

When the person to be arrested is engaged in the commission of an offense or is pursued immediately after its commission. When he escapes, flees or forcibly resists before the person has an opportunity to so inform him; and When the giving of such information will imperil the arrest.

2.

3.

Sec. 10. Officer may summon assistance. An officer making a lawful arrest may orally summon as many persons as he deems necessary to assist him in effecting the arrest. Every person so summoned by an officer shall assist him in effecting the arrest when he can render such assistance without detriment to himself. Only an officer making the arrest is governed by the rule. It does not cover a private individual making an arrest. Sec. 11. Right of officer to break into building or enclosure. An officer, in order to make an arrest either by virtue of a warrant, or without a warrant as provided in section 5, may break into any building or enclosure where the person to be arrested is or is reasonably believed to be, if he is refused admittance thereto, after announcing his authority and purpose. REQUISITES before an officer can break into a building or enclosure to make an arrest: 1. That the person to be arrested is or is reasonably believed to be in said building; That he has announced his authority and purpose for entering therein; That he has requested and been denied admittance.

2.

3.

Generally, a lawful arrest may be made anywhere, even on private property or in a house. This rule is applicable both where the arrest is under a warrant and where there is valid warrantless arrest.

validity of the search warrant is the presentation of the master tape of the copyrighted films from which the th pirated films are supposed to have been copied (20 Century Fox vs. CA, 162 SCRA 655). But this decision, which was promulgated on August 19, 1988, should apply only prospectively, and should not apply to parties who relied on the old doctrine and acted in good faith (Columbia Pictures vs. CA, 237 SCRA 367, cited in Columbia Pictures vs. CA, 262 SCRA 219) b) Determination of probable cause personally by a judge. In Placer vs. Villanueva, 126 SCRA 463, reiterated in Lim vs. Judge Felix, 194 SCRA 292, the SC ruled that the issuance of a warrant of arrest is not a ministerial function of the judge; while he could rely on the findings of the fiscal, he is not bound thereby. Thus, the determination of probable cause depends to a large extent upon the finding or opinion of the judge who conducted the required examination of the applicant and the witnesses (Kho vs. Judge Makalintal. G.R. 94902-06, April 21, 1999, citing Luna vs. Plaza, 26 SCRA 310). In People vs. Inting, 187 SCRA 788, the SC emphasized that the determination of probable cause is the function of the judge; and only the judge and the judge alone makes this determination. Even in election offenses, where preliminary investigation is done by the Comelec, the same rule applies (People vs. Delgado, 189 SCRA 715). i) For the issuance of a warrant of arrest, it is sufficient that the judge personally determine the existence of probable cause. It is not necessary that he should personally examine the complainant and his witnesses (Soliven vs. Makasiar, 167 SCRA 393). In Reyes vs, Montesa, 247 SCRA 85, the SC said that a hearing is not necessary for the determination of the existence of probable cause for the issuance of a warrant of arrest. The judge should evaluate the report and supporting documents submitted by the prosecutor or require the submission of the supporting affidavits of witnesses to aid him in determining whether probable cause exists. Likewise, in Webb vs. de Leon, 247 SCRA 652, it was held that the judge would simply personally review the initial determination of the prosecutor to see if it is supported by substantial evidence. He merely determines the probability, not the certainty, of guilt of the accused and, in so doing, he need not conduct a de novo hearing. Indeed, in the preliminary examination for the issuance of a warrant of arrest, the judge is not tasked to review in detail the evidence submitted during the preliminary investigation. It is sufficient that the judge should personally evaluate the report and supporting documents submitted by the prosecution in determining probable cause (Cruz vs. People, 233 SCRA 439). This was reiterated in People vs. CA, and Cerbo, G.R. No. 126005, January 21, 1999.

ia) But if the judge relied solely on the certification of the prosecutor [since all the records of the preliminary investigation were still in Masbate], then he did not personally determine the existence of probable cause, and, therefore, the warrant of arrest issued by him is null and void (Lim vs. Felix, 194 SCRA 292, reiterated in Roberts vs. People, 294 SCRA 307. Thus, in Ho vs. People, G.R. No. 106632, October 9, 1997, the warrant of arrest issued by the Sandiganbayan was invalidated because it was based merely on the report and recommendation of the investigating prosecutor. There was no showing that the court personally determined the existence of probable cause by independently examining sufficient evidence submitted by the parties during the preliminary investigation. Likewise, there is failure to comply with this requirement where the judge merely relied on the resolution of the Panel of Prosecutors and the latters certification that probable cause existed. Judges and prosecutors 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. The first is made by the judge, the second is done by the prosecutor (Allado vs. Diokno, 232 SCRA 192). ib) The determination of probable cause during a preliminary investigation is judicially recognized as an executive function and is made by the prosecutor (Ledesma vs. CA, G.R. No. 113216, September 5, 1997). The primary objective of a preliminary investigation is to free a respondent from the inconvenience, expense, ignominy and stress of defending himself in the course of a formal trial, until the reasonable probability of his guilt has been passed upon in a more or less summary proceeding by a competent officer designated for that purpose. Thus, in Crespo vs. Mogul, it was emphasized that the public prosecutor controls and directs the prosecution of criminal offenses, and where there is a clash of views between a judge who did not investigate and a fiscal who conducted a reinvestigation, those of the prosecutor would normally prevail. Accordingly, in Gozos vs. Tac-An, G.R. No. 123191, December 17, 1998, where the trial judge conducted an inquiry not only to determine the existence of probable cause, but also to determine what the charge should be and who should be charged, it was held that the judge acted beyond his authority. ic) In the cases when it is the judge who himself conducts the preliminary investigation, for him to issue a warrant of arrest, the investigating judge must: (i) have examined, under oath and in writing, the complainant and his witnesses;

(ii) be satisfied that there is probable cause; and (iii) that there is a need to place the respondent under immediate custody in order not to frustrate the ends of justice Mantaring vs. Judge Roman , 254 SCRA 158 ii) For the issuance of a search warrant, Section 4, Rule 126 of the Rues of Court requires that the judge must personally examine in the form of searching questions and answers, in writing and under oath, the complainants and any witnesses he may produce on facts personally known to them, and attach to the record their sworn statements together with any affidavits submitted. See Silva vs. Presiding Judge, 203 SCRA 140; Mata vs. Bayona, 128 SCRA 388, where the trial judge not only asked searching questions but leading questions, as well, the same was not considered improper, because the complainant and the witnesses were reticent and had to be made to explain (Flores vs. Sumaljag, 290 SCRA 568) c) After examination, under oath or affirmation, of the complainant and the witnesses he may produce. For warrants of Makasiar, supra. arrest, see Soliven vs.

requirements for the issuance of a search warrant, including the need to personally examine the applicant and the witnesses through searching questions. d) Particularity of description. The evident purpose of this requirement is to leave the officers of the law with no discretion regarding what articles they should seize, to the end that unreasonable searches and seizures may not be made and abuses may not be committed (Corro vs. Lising, 137 SCRA 541). It is also aimed at preventing violations of security of persons and property, and unlawful evasions of the sanctity of the home, and giving remedy against such usurpation when attempted. (People vs. Damaso, 212 SCRA 457). i) A search warrant may be said to particularly describe the things to be seized when the description therein is as specific as the circumstances will ordinarily allow. (People vs. Rubio, 57 Phil. 384); Or when the description expresses a conclusion of fact, not of law, by which the warrant officer may be guided in making the search and seizure; or when the things described are limited to those which bear direct relation to the offense for which the warrant is being issued. If the articles desired to be seized have any direct relation to an offense committed, the applicant must necessarily have some evidence other than those articles, to prove said offense, and the articles subject of search and seizure should come in handy merely to strengthen such evidence (Columbia Pictures vs. CA, G.R. No. 111267, September 20, 1996). Note, though, that in Kho vs. Judge Makalintal, G.R. No. 94902-06, April 21, 1999, it was held that the failure to specify detailed descriptions in the warrant does not necessarily make the warrant a general warrant. Citing Justice Francisco, the SC said that the description of the property to be seized need not be technically accurate nor necessarily precise, and its nature will necessarily vary according to whether the identity of the property, or its character, is a matter of concern. Further, the description is required to be specific only in so far as circumstances will allow. ii) General warrants are proscribed and unconstitutional (Nolasco vs. Pano, 139 SCRA 152, Burgos vs. Chief of Staff, 133 SCRA 800). In Pangandaman vs. Casar, 159 SCRA 599, warrants issued against 50 John Does none of whom the witnesses could identify, were considered in the nature of general warrants, and thus voided. In Tambasen vs. People, 246 SCRA 184, the scatter-shot warrant charging more than one offense was declared null and void, and the seizure of the money, which was not indicated in the warrant, was held unlawful. But a John Doe warrant will satisfy the constitutional requirement of particularity if there is some descriptio personae which will enable the officer to identify the accused.

for search warrants, read Sec. 4, Rule 126, Rules of Court. i) The evidence offered by the complainant and his witnesses should be based on their own personal knowledge and not on mere information or belief. In Alvarez vs. CFI, 64 Phil. 33, reliable information was held insufficient. In Burgos vs. Chief of Staff, 133 SCRA 800, evidence gathered and collated by our unit was not sufficient. And in Quintero vs. NBI, 162 SCRA 467, NBI Agent Castro knew nothing of his personal knowledge that Quintero committed an offense, while Congressman Mates statement was characterized by several omissions and replete with conclusions and inferences, lacking the directness and definiteness which would have been present had the statement dealt with facts which Congressman Mate actually witnessed. In Mata vs. Bayona, 128 SCRA 388, it was held that mere affidavits of the complainant and his witnesses were not enough to sustain the issuance of a search warrant. But in People vs. Woolcock, 244 SCRA 235, where the police officers acted not merely on the information given by the Thai Royal Police, but also conducted thorough surveillance on the accused, it was held that the police officers had personal knowledge. ii) In Columbia Pictures vs. Judge Flores, 223 SCRA 761, the SC held that the judge must strictly comply with the constitutional and statutory

iii) The place to be searched, as described in the warrant, cannot be amplified or modified by the peace officers own personal knowledge of the premises or the evidence which they adduced in support of their application for a warrant. Thus, where the warrant designated the place to be searched as Abigails Variety Store, Apt. 1207, Area F, Bagong Buhay Ave., Sapang Palay, San Jose del Monte, Bulacan, and the search was made at Apt. No. 1 which was immediately adjacent to the store (but an independent unit), it was held that there was an infringement being that the search be confined strictly to the place so described in the warrant. People vs. CA, G.R. No. 126379, June 26, 1998). iv) Only the articles particularly described in the warrant may be seized. No other property may be taken unless it is prohibited by law. In Veroy vs. Judge Layague, 210 SCRA 97, the SC said that while the offense of illegal possession of firearm is malum prohibitum, it does not follow that the subject thereof is illegal per se; x x x the subject of this kind of offense may not be summarily seized simply because they are prohibited. A search warrant is still necessary. Indeed, in People vs. del Rosario, 234 SCRA 246, it was held that a search warrant is not a sweeping authority empowering a raiding party to undertake a fishing expedition to seize and confiscate any and all kinds of evidence or articles relating to a crime. Thus, the search warrant was no authority for the police officers to seize the firearm which was not mentioned, much less described with particularity, in the warrant. v) It is not necessary that the property to be searched or seized should be owned by the person against whom the warrant is issued. It is sufficient that the property is within his control or possession (Burgos vs. Chief of Staff, 133 SCRA 800). vi) Sec. 7, Rule 126, Rules of Court, requires that no search of a house, room or any of the premises shall be made except in the presence of the lawful occupant thereof or any member of his family, or in the absence of the latter, in the presence of two witnesses of sufficient age and discretion residing in the same locality. Failure to comply with this requirement invalidates the search (People vs. Gesmundo, 219 SCRA 743.) Properties subject to seizure (Sec. 2, Rule 126 of the Rules of Court); (a) Subject of the offense; (b) Stolen or embezzled property and other proceeds or fruits of the offense; and (c) Property used or intended to be used as means for the commission of an offense. Miranda Doctrine. (Sec. 12, Art. III): (1) Any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford the services of counsel, he must be provided with one. These

rights cannot be waived except in writing and in the presence of counsel. (2) No torture, force, violence, threat, intimidation, or any other means which vitiates the free will shall be used against him. Secret detention places, solitary, incominicado, or other similar forms of detention are prohibited. (3) Any confession or admission obtained in violation of this or Section 17 hereof shall be inadmissible in evidence against him. (4) The law shall provide for penal and civil sanctions for violations of this section, as well as compensation to and rehabilitation of victims of torture or similar practices, and their families. = available in every investigation. 1. 2. Source: Miranda vs. Arizona, 384 U.S. 436. When the rights are available: The rights guaranteed in Sec. 12, Art. III exist only in custodial investigation or in-custody-interrogation of accused persons (People vs. Judge Ayson, 175 SCRA 216), which has been defined as Any questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. The rule begins to operate at once as soon as the investigation ceases to be a general inquiry into an unsolved crime, and direction is then aimed upon a particular suspect who has been taken into custody and to whom the police would then direct interrogatory questions which tend to elicit incriminating statements (People vs. de la Cruz, G.R. 118866-68, September 17, 1997). In De la Torre vs. CA, G.R. No. 102786, August 14, 1998, it was reiterated that the Miranda rights apply only from the moment the investigating officer begins to ask questions for the purpose of eliciting admissions, confessions or any information from the accused. A police line-up is not considered part of any custodial inquest because it is conducted before that stage of investigation is reached. a) Under RA 7438, custodial investigation shall include the practice of issuing an invitation to a person who is investigated in connection with an offense he is suspected to have committed, without prejudice to the liability of the inviting officer for any violation of law. Thus, in People vs. del Rosario, G.R. No. 127755, April 14, 1999, it was held that from the time del Rosario was invited for questioning at the house of the barangay captain, he was already under effective custodial investigation. Because he was not apprised nor made aware thereof by the investigating officers, and because the prosecution failed to establish that del Rosario had waived his right to remain silent, his verbal admissions were inadmissible against him.

b)

A person under normal audit investigation is not under custodial investigation, because an audit examiner can hardly be deemed to be the law enforcement officer contemplated in the rule (Navallo vs. Sandiganbayan, 234 SCRA 175).

confession from the suspect, the right to counsel may not yet be validly invoked. However, see People vs. Bolanos, 211 SCRA 262, where, while being conducted to the police station on board the police jeep, the accused made an extrajudicial confession that he had killed the victim. Inasmuch as the uncounselled confession was the sole basis of the judgment of conviction, it was held that the trial court committed a reversal error. While on board the police jeep, the accused was deemed to have been already under custodial investigation, and should have been informed of his rights. ii) In People vs. Bandula, 232 SCRA 565, the SC stressed that the Constitution requires that the counsel be independent. Obviously, he cannot be a special counsel, public or private prosecutor, counsel of the police, or a municipal attorney, whose interest is admittedly adverse to the accused. As a legal officer of the municipality, it is seriously doubted whether a municipal attorney can effectively undertake the defense of the accused without running into conflict of interest. In People vs. Januario, 267 SCRA 608, it was held that there was a violation of this provision where the counsel who assisted the accused in the custodial investigation conducted by the NBI was an applicant for employment with the NBI, as he in fact, joined the NBI a few months later. See also People vs. Espanola, infra., where the SC declared that the Legal Officer of Iligan City was not an independent counsel within the purview of the constitutional provision. However, the mere fact that the lawyer was a retired member of the Judge Advocates Office does not cast any doubt on his impartiality in assisting the accused during custodial investigation (People vs. Hernandez, G.R. No. 117629, December 4, 1997). iii) The phrase preferably of his own choice does not convey the message that the choice of a lawyer by a person under investigation is exclusive as to preclude other equally competent and independent attorneys from handling the defense. Otherwise, the tempo of custodial investigation will be solely in the hands of the accused who can impede, nay, obstruct the progress of the interrogation by simply selecting a lawyer who, for one reason or another, is not available to protect his interest. (People vs. Barasina, 229 SCRA 450). While the choice of a lawyer in cases where the person under custodial interrogation cannot afford the services of counsel or

Because the Court Administrator is not a law enforcement officer, an investigation conducted by him does not constitute custodial investigation within the contemplation of the constitutional guarantee (Office of the Court Administrator vs. Sumilang, 271 SCRA 316). Neither is the investigation conducted by an employer deemed custodial inquest which will entitle the employee to the Miranda rights (Manuel vs. N.C. Construction Supply, G.R. No. 127553, November 28, 1997). = Admission can be sued against accused. c) The rights guaranteed by this provision refer to testimonial compulsion only (People vs. Paynor, 261 SCRA 615).

3.

What rights are available. The rights under the Miranda Doctrine which a person under custodial investigation is entitled to are: a) b) To remain silent. To competent and independent counsel (preferably of his own choice) at all stages of the investigation (People vs. Hassan, 157 SCRA 261; People vs. Payuso, 175 SCRA 47). i) The right to counsel is intended to preclude the slightest coercion as would lead the accused to admit something else. The lawyer, however, should never prevent an accused from freely and voluntarily telling the truth (People vs. Enanoria, 209 SCRA 577). In Gamboa vs. Cruz, 162 SCRA 642, the Supreme Court held that the right to counsel attaches upon the start of the investigation, i.e.: when the investigating officer starts to ask questions to elicit information and/or confessions or admissions from the respondent. At that point, the person being interrogated must be assisted by counsel to avoid the pernicious practice of extorting false or coerced admissions from the lips of the person undergoing investigation. Accordingly, when the accused is brought to the police station only to be identified by a witness, technically, he is not yet under custodial investigation (People vs. Hatton, 210 SCRA 1). Thus, in People vs. Buntan, 221 SCRA 42, inasmuch as all that the police investigator did was to show the suspect the victims sister and the latters sworn statement identifying him as one of the two suspects in the killing, and the police had not started questioning, interrogating or exacting a

where the preferred lawyer is not available is naturally lodged in the police investigators, the suspect has the final choice as he may reject the counsel chosen for him and ask for another one. A lawyer provided by the investigators is deemed engaged by the accused when he does not raise any objection against the counsels appointment during the course of the investigation, and the accused thereafter subscribes to the veracity of the statement before the swearing officer (People vs. Jerez, G.R. No. 114385, January 19, 1998). iv) The right to counsel does not mean that the accused must personally hired his own counsel. The constitutional requirement is satisfied when a counsel is engaged by anyone acting on behalf of the person under investigation or appointed by the court upon petition by said person or by someone on his behalf (People vs. Espiritu, G.R. No. 128287, February 2, 1999). v) The right to counsel is not required in a police line-up. Police line-up is not part of the custodial inquest; hence, the appellants were not yet y entitled, at that stage, to counsel (People vs. Dimaano, 209 SCRA 819; de la Torre vs. CA, supra.,). Neither may this right be invoked when the suspect is given a paraffin test, as he is not yet under custodial investigation (People vs. de Guzman, 224 SCRA 93, People vs. Lamsing 248 SCRA 471). But see people vs. Hassan, 157 SCRA 261). vi) In People vs. Lucero, 244 SCRA 425, the court held that the petitioner was denied his right to counsel where the lawyer, not counsel of choice, arrived at the CIS Headquarters around 9:00 p.m. the second night of appellants detention, talked to the appellant about his rights, left the appellant in the custody of the CIS agents during the actual interrogation, and then came back the next day for examination and signature of the statement of the appellant. vii) In People vs. Espanola, G.R. No. 119308, April 18, 1997, the policeman brought accused Paquingan to the prosecutors office as the accused manifested his desire to confess. But when the notes were transcribed, accused refused to sign, and only the lawyers who assisted him signed the confession. It appeared, however, that when the Prosecutor took the confession, an information for rape with homicide had already been filed against Paquingan and his co-accused although Paquingan was no longer under custodial investigation when he gave his confession because charges had already been filed against him, nonetheless, the SC said that the right to counsel still applies in certain

pre-trial proceedings that are considered critical stages in the criminal process. Custodial interrogation before or after charges have been filed, a non-custodial interrogation after the accused has been formally charged, are considered critical pre-trial stages in the criminal process. viii) While the right to counsel may validly be waived, Sec. 2(a) R.A. 7438, provides that any person under custodial investigation shall at all times be assisted by counsel. Sec. 3 of the same law provides that in t absence of a lawyer, no custodial investigation shall be conducted, and the suspected person can only be detained by the investigating officer in accordance with Art. 125 of the RPC. c) To be informed of such rights: i) In People vs, Nicandro, 141 SCRA 289, the SC said that this contemplates the transmission of meaningful information rather than just the ceremonial and perfunctory recitation of an abstract constitutional principle. In People vs. Canela, 208 SCRA 842, the SC, reiterating the foregoing, said that making the accused read his constitutional rights is simply not enough. The prosecution must show that the accused understood that he read, and that he understood the consequences of his waiver. In People vs. Agustin, 240 SCRA 541, it was held that the right to be informed carries with it the correlative obligation on the part of the investigator to explain, and contemplates effective communication which results in the subject understanding what is conveyed. Since it is comprehension sought to be attained, the degree of explanation required will necessarily vary and depend on the education, intelligence and other relevant personal circumstances of the person under investigation. d) Rights cannot be waived except in writing and signed by the person in the presence of his counsel. i) Sec. 2(d), RA 7438, provides that any extrajudicial confession made by a person arrested, detained or under custodial investigation shall be in writing and signed by such person in the presence of his counsel or in the latters absence, upon a valid waiver, and in the presence of any of the parents, older brothers and sisters, his spouse, the municipal mayor, the

municipal judge, district school supervisor, or priest or minister of the gospel as chosen by him, otherwise, such extrajudicial confession shall be inadmissible as evidence in any proceeding. e) No force, etc. which vitiates the free will shall be used. Secret detention places, etc. are prohibited. Confession/admission obtained in violation of rights are inadmissible evidence. i) In People Bolanos, 211 SCRA 262, while being conducted to the police station on board the police jeep, the accused made an extrajudicial confession was the sole basis of the judgment of conviction, the lower court committed a reversible error. While on board the police jeep, the accused was already under custodial investigation, and should have been informed of his rights. In People vs. de la Cruz, 224 SCRA 506, where appellant, after having been apprehended, but without the assistance of counsel, volunteered information that he had killed his wife and even the authorities to the place where he allegedly buried the deceased (which yielded 8 bones after the police had dug the site), it was held that the extrajudicial confession of the appellant is inadmissible for failure to comply with the constitutional requirements. In People vs. Bonola, G.R. No. 116394, June 19, 1997, it was held that the 1973 Constitution did not distinguish between verbal and non-verbal confessions; as long as the confession is uncounselled, it is inadmissible in evidence. What is sought to be avoided by the rule is the evil of extorting from the very mouth of the person undergoing interrogation for the commission of an offense the very evidence with which to prosecute and thereafter convict him. In People vs. Bernardino, 193 SCRA 448, it was held that the verbal admission made by the accused that he sold marijuana to Joson is inadmissible in evidence, because the accused had not been properly informed of the Miranda rights. In People vs. Morada, G.R. No. 129723, May 19, 1999, the SC held that the verbal confession of the accused to barangay Captain Manimbao was made in the course of custodial investigation. Accordingly, the confession was inadmissible in evidence. ii) But in People vs. Andan, G.R. No. 116437, March 3, 1997, the SC held that the voluntary but uncounselled confession of the

f) g)

accused to the Mayor and to the media was admissible in evidence. In this case, it was noted that that it was the accused who freely, spontaneously and voluntarily sought the Mayor for a private meeting, and the Mayor did not know that the accused was going to confess his guilt. Accused talked with the Mayor as a confidant, not as a law enforcement officer. The confession made by the accused to the news reporters was likewise free of undue influence from the police authorities. The news reporters acted as news reporters when they interviewed the accused; they were not acting under the direction and control of the police. Constitutional procedures on custodial investigation do not apply to the spontaneous statements not elicited through questioning by the authorities, but given in an ordinary manner whereby the accused orally admitted having committed the crime. iii) This is reiterated in People vs. Domantay, G.R. No. 130612, May 11, 1999, where the SC said that the oral confession made to newsmen are not covered by Sec. 12, Art. III. The Bill of Rights does not concern itself with the relationship between a private individual and another individual. Rather, it governs the relationship between the individual and the State. The prohibition therein are addressed primarily to the State and its agents. As to the requirement that the extrajudicial confession must be corroborated by other evidence, the Court said that there was the corpus delicti which corroborated the extrajudicial confession. 3. In People vs. Judge Ayson, 175 SCRA 216, the SC said in fine, a person suspected of having committed a crime and subsequently charged with its commission has the following rights in the matter of his testifying or producing evidence: a) Before the case is filed in Court [or with the Public Prosecutor, for preliminary investigation], but after having been taken into custody or otherwise deprived of his liberty in some significant way, and on being interrogated by the police; the continuing right to remain silent and to counsel, and to be informed thereof, not to be subjected to force, violence, threat, intimidation or any other means which vitiates the free will; and to have evidence obtained in violation of these rights rejected and inadmissible. After the case is filed in Court; to refuse to be a witness; not to have any prejudice whatsoever result to him by such refusal; to testify in his own behalf, subject to cross-examination; and while testifying, to refuse to answer a specific question which tends

b)

to incriminate him for some crime other than for which he is being prosecuted. 4. Applicability: The Miranda doctrine was first institutionalized in the 1973 Constitution which took effect on January 17, 1973. The rights guaranteed therein are to be given only prospective effect. (Magtoto vs. Manguera, 63 SCRA 4) 5. Waiver: a. Must be in writing and made in the presence of counsel (Sec. 12 (1), Art. III. See People vs. Tunday, 157 SCRA 529, People vs. Quijano, 197 SCRA 761. But note the provisions of R.A. 7438. No retroactive effect = The doctrine that an uncounselled waiver of the right to counsel and to remain silent is not to be given any legal effect was initially a judge-made one, and was first announced on April 26, 1983, in Morales vs. Ponce Enrile, and reiterated on March 20, 1985, in People vs. Galit, 135 SCRA 465. While this doctrine eventually became part of Sec. 12 (1), Art. III, the requirements and restrictions therein have no retroactive effect and do not reach waivers made prior to April 26, 1983, the date of promulgation of Morales (Filoteo vs. Sandiganbayan, 263 SCRA 222). c. Burden of proof = The burden of proving that there was valid waiver rests on the protection. The presumption that official duty has been regularly performed cannot prevail over the presumption of innocence (People vs. Jara, 144 SCRA 156, People vs. Taruc, 157 SCRA 178.) Thus, in People vs. Paule, 261 SCRA 649, where the police officer could not state positively whether the lawyer assisting the accused provided him with effective counsel during the crucial aspects of the investigation because the police Officer went out of the investigation room and heard only snatches of the conversation between the lawyer and the accused and the lawyer was not presented as witness during the trial The Supreme Court held that the confession given by the accused was not admissible in evidence. d. What may be waived = The right to remain silent and to counsel but not the right to the Miranda warning. FOR ARRESTING/INVESTIGATING

a)

The person arrested, detained, invited or under custodial investigation must be informed in a language known to and understood by him of the reason for the arrest and he must be shown the warrant of arrest, if any. Every other warning, information or communication must be in a language known to and understood by said person. He must be warned that he has a right to remain silent and that any statement he makes may be used as evidence against him. He must be informed that he has the right to be assisted at all times and have the presence of an independent and competent lawyer preferably of his own choice. He must be informed that if he has no lawyer or cannot afford the services of a lawyer, one will be provided for him; and the lawyer may also be engaged by any person in his behalf, or may be appointed by the Court upon petition of the person arrested or one acting in his behalf. That whether or not the person arrested has a lawyer, he must be informed that no custodial investigation in any form shall be conducted except in the presence of his counsel or after a valid waiver has been made. The person arrested must be informed that, at any time, he has the right to communicate or confer by the most expedient means, example: by telephone, radio, letter or messenger, with his lawyer (either retained or appointed), any member of his immediate family, or any medical doctor, priest or minister chosen by him or by anyone of his immediate family or by his counsel, or be visited by/confer with duly accredited national or international non-government organization. It shall be the responsibility of the officer to ensure that this is accomplished. He must be informed that he has the right to waive any of said rights provided it is made voluntarily, knowingly and intelligently, and ensure that he understood the same. In addition, if the person arrested waives his right to a lawyer, he must be informed that it must be done in writing and in the presence of counsel, otherwise, he must be warned that the waiver is void even if he insists on his waiver and chooses to speak. That the person arrested must be informed that he may indicate in any manner at any time or stage of the process that he does not wish to be questioned with a warning that once he makes such indication the police may not interrogate him if the same had not

b)

c) b.

d)

e.

f.

g.

h.

6. GUIDELINES OFFICERS:

= In People vs. Mahinay, G.R. No. 122485, February 1, 1999, the Supreme Court laid down the guidelines and duties of arresting, detaining, inviting or investigating officers or his companions, as follows:

i.

yet commenced, or the interrogation must cease if it has already begun. j. The person arrested must be informed that his initial waiver of his right to remain silent, the right to counsel or any of his rights does not bar him from invoking it at any time during the process, regardless of whether he may have answered some questions or volunteered some statements. He must also be informed that any statement or evidence, as the case may be, obtained in violation of any of the foregoing, whether inculpatory or exculpatory, in whole or in part, shall be inadmissible in evidence. b)

from the uncounselled confession would likewise, be inadmissible. Receipt of seized property inadmissible = the receipt of seized property signed by the accused without the assistance of counsel and with the accused not having been first informed of his constitutional rights is totally inadmissible in evidence (People vs. de Guzman, 194 SCRA 601). Thus, in People vs. Wong Chuen Ming, 256 SCRA 182, where the accused were ordered to sign their baggage boxes by Customs agents, the admissions (signatures) were held to be inadmissible in evidence. In People vs. Saturnina Salazar, G.R. No. 98060, January 27, 1997, where the suspect was made to sign a bond paper which was used to wrap the marijuana sticks before the same were submitted to the laboratory for examination, the Supreme Court held that this was in the nature of an uncounselled confession and therefore inadmissible in evidence. In People vs. de Lara, 236 SCRA 291, it was held that despite the warrantless arrest and search, as a result of a buy-bust operation, nonetheless, where the accused, insisting that he would like to wait for counsel, was made to sign the photocopy of the marked P20-bill, Receipt of Property Seized, and the Booking and Information Sheet, without assistance of counsel, there was clearly a violation of Sec. 12, Art. 3 of the Constitution. However, in People vs. Linsangan, 195 SCRA 784, although the accused was not assisted by counsel when he initialed the P10 bills that the police found tucked in his waist, it was held that neither his right against self-incrimination nor his rights guaranteed by the Miranda doctrine was violated, because his possession of the marked bills did not constitute a crime, the subject of the prosecution being his act of selling marijuana cigarettes. Likewise, in People vs. Morico, 246 SCRA 214, it was held that the signing of the Booking Sheet and the Arrest Report without the benefit of counsel does not violate the Constitution because it is not an admission of guilt. Similarly, in Marcelo vs. Sandiganbayan, G.R. No. 09242, January 26, 1999, were, during the investigation conducted by the NBI, the petitioner and his co-accused were made to sign on the envelopes seized from them (subject of the alleged mail theft), the Supreme Court said that these signatures were actually evidence of admission contemplated in Sec. 12 (and Sec. 17), Art. 3, and they should be excluded. c) Re-enactment of the crime. Not being clear from the record that before the re-enactment was staged by the accused, he had been informed of his constitutional rights, and that he had validly

k.

7. Exlusionary Rule: Confession or admission obtained in violation of Sec. 12 and Sec. 17, Art. 3, shall be inadmissible in evidence. A confession is a declaration made voluntarily and without compulsion or inducement by a person acknowledging that he has committed or participated in the commission of a crime. But before it can be admitted in evidence, the Constitution demands strict compliance with the requirements of Sec. 12 and 17, Art. 3, because a confession of guilt constitutes formidable evidence against the accused, on the principle that none will knowingly, freely and deliberately admit authorship of a crime unless prompted by truth and conscience, particularly where the facts given could only have been known by the accused (people vs. Fabro, G.R. No. 95089, August 11, 1997) It is immaterial where the confession was obtained. Thus, where the confession was given by the accused to NBI agents who visited him in Hongkong prison, the confession was still declared inadmissible in evidence People vs. Gomez, 270 SCRA 432) On the other hand, any allegation of force, duress, undue influence or other forms of involuntariness in exacting such confession must be proved by clear, convincing and competent evidence, by the defense. Otherwise, the confessions full probative value may be used to demonstrate the guilt of the accused. See also People vs. Eglipa, 174 SCRA 1, People vs. Basay, 219 SCRA 404.

a)

Fruit of the poisonous tree = in People vs. Alicando, 251 SCRA 293, the Court declared that we have also adopted the libertarian exclusionary rule known as the fruit of the poisonous tree, a phrase minted by Mr. Justice Felix Frankfurter in the celebrated Nardone vs. U.S.. According to this rule, once the primary source (the tree) is shown to have been unlawfully obtained, any secondary or derivative evidence (the fruit) derived from it is also inadmissible. The rule is based on the principle that evidence illegally obtained by the State should not be used to gain other evidence, subsequently obtained. Thus, in this case, the uncounselled admission being inadmissible, the pillow and the T-shirt with alleged bloodstain being evidence derived

waived such rights before proceeding with the demonstration, the Supreme Court declined to uphold the admissibility of evidence relating to the re-enactment (People vs. Luvendino, 211 SCRA 36). d) Res gestae = the declaration of the accused acknowledging guilt made to the police desk officer after the crime was committed may be given in evidence against him by the police officer to whom the admission was made, as part of the res gestae (People vs. Dy, 158 SCRA 111)