OFFICE LEGAL MEMORANDUM

TO: Atty. Oby Juan

FROM: Leo Joselito E. Bono, Legal Researcher
Date: March 4, 2014
RE: Arrest made on Job Hutt for the murder of Amy Dala.
___________________________________________________________

STATEMENT OF THE ASSIGNMENT

You have asked me to prepare a memorandum discussing the best

legal options our office should take to defend Mr. Job Hutt.

FACTS

Job Hutt has a pending criminal charge for the murder of Amy
Dala that happened on January 5, 2014, and is currently in detention now
and has not been arraigned yet. On January 7, 2014 at the police office, a
witness named Jan Go identified Job Hutt as Amy Dala’s shooter. Jan Go
identified Job Hutt among five photographs of male persons that the
police presented to him. On January 8, 2014, acting on the information
supplied by Jan Go, the police arrested Job Hutt without a warrant of
arrest in his residence while eating. On the same day of the arrest, the
police filed a criminal complaint for murder against Job Hutt with the
prosecutor’s office. Job Hutt signed a waiver of his arrest while the
prosecutor conducted a preliminary investigation. John Hutt was not able
to submit evidence during the conduct of the preliminary investigation
and was not notified of the same. On February 3, 2014, the office of the
prosecutor filed a case of murder against Job Hutt.

ISSUES

Issue I: Under Article III, section 2 of the 1987 Philippine

Constitution, is a warrantless arrest based on the personal
knowledge of another, not the arresting officer, and made
three days after the incident considered as an illegal arrest?

Issue II: Under Article 6 of the Civil Code of the Philippines, is a

waiver made in order to cure a defect of an illegal arrest
considered as a valid waiver?

Issue III: Under Rule 112, section 3 of the Rules on Criminal

Procedure, is the failure to be notified of the preliminary
 investigation and failure to present evidence for lack of
counsel, a ground for reinvestigation?

Issue IV: Under the Rule 117 of the Rules on Criminal Procedure, is
an illegal arrest a ground for a motion to quash?

BRIEF ANSWER

Issue I: Yes. When a warrantless arrest is made in hot pursuit, it

must be made basing on the personal knowledge of the
arresting officer or individual. There must be an immediacy
between the time the offense was committed and the time of
the arrest.

Issue II: No. A waiver made in order to cure a defect of an illegal

arrest is contrary to law and public policy.

Issue III: Yes. Although it is not a condition sine qua non that the
respondent should be present during the preliminary
investigation, it must be accorded that there must be efforts
to reach him, because the respondent has a right to be
notified of the proceedings and to be present thereat.
However, there is nothing in the rules which renders a
preliminary investigation invalid because the defendant was
without counsel.

Issue IV: Yes. The illegality of an arrest is a ground for a motion to

quash for reason of lack of jurisdiction over the person of the
accused.

ANALYSIS

Issue I

Infinitely more important than conventional adherence to general

rules of criminal procedure is respect for the citizen’s right to be free not
only from arbitrary arrest and punishment but also from unwarranted and
vexatious prosecution.1 It must be taken into consideration that the need
to enforce the law cannot be justified by sacrificing constitutional rights.
The Bill of Rights under the Philippine constitution safeguards our right

1 Salonga v. Cruz Paño, 134 SCRA 438 (1985).

to life, liberty and property against public officials exercising grave abuse
of discretion. One of which is enshrined under Article III, section 2 which
provides in part “….. no search warrant or warrant of arrest shall issue
except upon probable cause to be determined personally by the judge….”
Such right is inviolable and must not be curtailed in the most abstract and
absurd way by an arresting officer.
Under the law, when a warrantless arrest is made upon a person, it
must fall squarely on the exceptions absorbed under the Rules on
Criminal Procedure. Such exceptions are incorporated under Rule 113,
section 5 which states that “A peace officer or a private person may,
without a warrant, arrest a person:…. (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
committed it…” It goes to show that such arrest if made in hot pursuit
must have the following requisites; (1) that an offense had just been
committed, and; (2) the person making the arrest has probable cause to
believe, based on his personal knowledge of facts or of other
circumstances, that the person to be arrested had committed it. 2

The first requisite entails that there must be an instantaneous or

rapid measurement between the time the offense is committed and the
time of the arrest. The essence in hot pursuit is to give leeway that some
offenses are made not in the presence of arresting officers and in order for
justice to be rendered, there is no more need to procure a warrant for it
would be impracticable for the offender might abscond from such
offense. Under People v. Del Rosario, G.R. No. 127755, April 14, 1999,
Joselito Del Rosario was accused of having conspired with three
individuals on the crime of Robbery with Homicde and was arrested a
day after the actual incident occurred. The Supreme Court held that the
arrest of Del Rosario did not comply with Rule 113, section 5 paragraph
(b) because the arrest came a day after the consummation of the crime
and not immediately thereafter. As such, the crime had not been “just
committed” at the time the accused was arrested. The same inference was
made under People v. Guillermo Samus, G.R. No. 135957-58, September
17, 2002. Under this case, the accused killed Dedicacion Balisi and her
grandson John Ardee Balisi on September 2, 1996 and was arrested on
September 10, 1996. The arrest was made eight days after the actual
incident and without a warrant. It was held that the arrest did not fall
within the ambit of Rule 113, since the incident took place on September
2, 1996, it could not have been considered as “having just been
2Antonio Eduardo B. Nachura, Outline/Reviewer in Political Law, (Manila: RJVL
Printing Press, 2009), 127.
committed.” Evidently, they unlawfully arrested the appellant on
September 10, 1996. However, the Supreme Court held a different
approach to such time interval under People v. Gerente, G.R. No. 95847-
48, March 10, 1993. The policemen arrested Gerente only some three
hours after Gerente and his mates had killed Blace. They saw Blace dead
in the hospital and when they inspected the scene of the crime, they found
the instruments of death: a piece of wood and a concrete hollow block
which the killers had used to bludgeon him to death. The eyewitness
reported the happening to the policemen and pinpointed her neighbor,
Gerente, as one of the killers. If they had postponed his arrest until they
could obtain a warrant, he would have fled the law as his two companions
did. To juxtapose the three different cases particularized, the important
element to heed is that there must be a nexus between the offense being
committed and the subsequent warrantless arrest. An immediacy of the
time interval is the rudiment in an arrest made in hot pursuit. In the case
at bench, the arrest was made three days after the alleged murder incident
happened. This goes to show that there was no immediacy between the
time the offense is committed and the time of the arrest. Such hiatus
could have allowed the arresting officers to procure a warrant.

The second requisite conveys that the warrantless arrest must be

made basing on the arresting officer’s personal knowledge of facts or of
other circumstances, that the person arrested had committed such crime.
To dissect this requisite, we must go over the meaning of “personal
knowledge of facts.”

In Cadua v. Court of Appeals, G.R. No. 123123, August 19, 1999,

the Supreme Court, quoting Ricardo Francisco, Criminal Procedure, 2nd
ed. (1994), pp. 207-208, held that ‘personal knowledge of facts’, in
arrests without warrant must be based upon probable cause, which means
an actual belief or reasonable grounds of suspicion. Probable cause in
warrantless arrests conveys such a reasonable ground of suspicion
supported by circumstances sufficiently strong in themselves as to
warrant a reasonable man in believing the accused to be guilty. When the
reasonable ground of suspicion is coupled with good faith, it is another
protective bulwark for the officer. In contrast with Cadua v. Court of
Appeals, the Supreme Court held a different approach in People v.
Bansil, G.R. No. 120163, March 10, 1993. The accused was arrested by a
team of policemen led by Major Jaime Ortega, upon an informer’s tip that
the appellant was one of the suspects in the killing of three persons some
weeks before in Quiapo, Manila. The Supreme Court arrived at a
conjecture that there was no probable cause for the arrest of the appellant
basing on the informant’s tip and the “bulging waistline.” The arresting
officers were only equipped with the knowledge of the suspect’s “attire”
which the prosecution admitted during the trial. They were not even
given a specific place within which to target their search of the suspect,
only a vicinity of the Muslim Area in Quiapo, near the Muslim Mosque.
Yet the arresting team directly zeroed in on the accused and his
companions who were only eating halo-halo at a small restaurant, surely
it was not a crime in itself. The “bulging waistline” of the accused
claimed by SPO4 Clemente, in the light of the availing circumstances, is
not sufficient to tantamount a probable cause for the arrest of the accused.
In our case, the police arrested Job Hutt without a warrant of arrest on
January 8, 2014. They only acted out on the information furnished by Jan
Go, which Jan Go identified a day before the actual arrest basing on the
five photographs of male persons that the police presented to him. In the
light of the prevailing circumstances, the arrest made by the arresting
officers was not based on their own personal knowledge of facts. The
information was based on the personal knowledge of Jan Go. So to speak,
there was no sufficient probable cause to warrant the arresting officers to
arrest Job Hutt, nor was he committing a crime in the presence of the
arresting officers. The personal knowledge of the arresting officers does
not come within the purview of the personal knowledge contemplated
under Rule 113, section 5.

To précis everything into account, the arrest of Job Hutt was made
not in consonance with his constitutional rights. It was done three days
after the incident occurred and it was based on the personal knowledge of
Jan Go, not the personal knowledge of the arresting officers. There was
no probable cause to vindicate the arrest made since he was not even
committing a crime in the presence of the arresting officers. The Supreme
Court recognizes the pressures faced by law enforcement agencies to
effect immediate arrests and produce results without unnecessary delay,
but it must be remembered that the need to enforce the law cannot be
justified by sacrificing constitutional rights.3

Issue II

Waiver is the intentional relinquishment of a known right. 4

Waivers are not presumed, but must be clearly and convincingly shown,
either by express stipulation or acts admitting no other reasonable
explanation. 5 It is essential that a right, in order that it may be validly

3 Posadas v. Ombudsman, G.R. No. 131492, September 29, 2000.

4 Castro v. Del Rosario, 19 SCRA 196.
5 Arrieta v. National Rice and Corn Corporation, 10 SCRA 79.
waived, must be in existence at the time of the waiver 6 and it must be
exercised by a duly capacitated person actually possessing the right to
make the waiver.

In Consunji v. Court of Appeals, G.R. No. 137873, April 20, 2001,

it was stated that a waiver is an act of understanding that presupposes that
a party has knowledge of its rights, but choose not to assert them. It must
be generally shown by the party claiming a waiver that a person against
whom the waiver is asserted had at the time knowledge, actual or
constructive, of the existence of the party’s rights or of all material facts
upon which they depended. Where one lacks knowledge of a right, there
is no basis upon which waiver of it can rest. Ignorance of material fact
negates waiver, and waiver cannot be established by a consent given
under a mistake or misapprehension of fact. A person makes a knowing
and intelligent waiver when that person knows that a right exists and has
adequate knowledge upon which to make an intelligent decision. Waiver
requires knowledge of the facts basic to the exercised of the right waived,
with an awareness of its consequences. That a waiver is made knowingly
and intelligently must be illustrated on the record or by evidence.

Under Article 6 of the New Civil Code, rights may be waived,

unless the waiver is contrary to law, public order, public policy, morals or
good customs, or prejudicial to a third person with a right recognized by
law. This provision is appurtenant to the issue presented to us with regard
to the waiver signed by Job Hutt for his illegal arrest. This waiver made
by Job Hutt was in fact, contrary to law and public policy. The arrest
made by the arresting officers was illegal. The fact that this arrest was
illegal, it cannot be made to be waived or set aside since it is the state
who should recognize that the dereliction of the officers is an act
prejudicial and inimical to its interest.

Issue III
Preliminary investigation is merely inquisitorial, and it is often the
only means of discovering the persons who may be reasonably charged
with a crime, to enable the fiscal to prepare his complaint or information.
7
It is not a trial of the case on the merits and has no purpose except that
of determining whether a crime has been committed and whether there is
probable cause to believe that the accused is guilty thereof, and it does
not place the person against whom it is taken in jeopardy. 8 The purpose

6 Ereneta v. Bezore, 54 SCRA 13.

7 People v. Badilla, G.R. No. L-23792, February 17, 1926.
8 U.S. v. Yu Toico, G.R. No. L-1115, March 10, 1916.
of a preliminary investigation are to protect the accused from
inconvenience, expense and burden of defending himself in a formal trial
unless the reasonable probability of his guilt shall have been first
ascertained in a fairly summary proceeding by a competent officer 9 and
to secure the innocent against hasty, malicious and oppressive
prosecution, and to protect him from an open and public accusation of a
crime, from the trouble, expenses and anxiety of a public trial.10

When a preliminary investigation is conducted, it is not a condition

sine qua non that that respondent should be present during the
preliminary investigation. As a matter of fact, the right to be present is
not absolute. The preliminary investigation can be made ex-parte if the
respondent cannot be subpoenaed or does not appear after due notice.
However, if the respondent was not duly notified or no efforts were made
to reach him, such dereliction is a denial of fundamental fairness, which
contaminates the preliminary investigation. This assertion is corroborated
under Ong v. Sandiganbayan, G.R. No. 126858, September 16, 2005. In
this case, Ong called the Court’s attention to the fact that he was not
notified of the subpoenas duces tecum ad testificandum apparently issued
to SGV, Allied Bank and the BIR and the proceedings taken thereon. The
Supreme Court held that Ong was entitled to be notified of the
proceedings and to be present thereat. The fact that he was not so notified
is a denial of fundamental fairness which taints the preliminary
investigation.

The right to notice adopted in Ong v. Sandiganbayan is precise and

can be made applicable to our case. Job Hutt was not duly notified of the
preliminary investigation proceedings. This alone gives credence to the
fact that there was no fairness given to Job Hutt, not to mention that Job
Hutt was still detained, such notice could have been procured for him
especially that he was illegally arrested. There is no question that there
was a preliminary investigation conducted. However, the failure of Job
Hutt to be notified or any means for him to be reached is already
tantamount to no preliminary investigation at all on his part. Such neglect
is in contrast to the rudimentary purpose of having a preliminary
investigation. Considering the fact that Job Hutt was illegally arrested, it
gives more weight for him to be notified of the preliminary investigation
proceedings. There is a right to preliminary investigation where
warrantless arrest is not lawful. 11

9 Oscar M. Herrera, Remedial Law Volume IV, (Manila: Rex Bookstore, 2007), 273.
10 Sausi v. Querubin, G.R. No. L-24122, January 29, 1976.
11 Rolito Go v. Court of Appeals, G.R. No. 101837, February 5, 1992.
 On the issue of whether there is a right to counsel during the
preliminary investigation is in the negative. People v. Narca, G.R. No.
108488, July 21, 1997, is a case that would complement this contention.
It was held that there is nothing in the rules which renders invalid a
preliminary investigation held without defendant’s counsel. Not being
part of the due process clause but a right merely created by law,
preliminary investigation if held within the statutory limitations cannot be
voided.

Hence, the important thing to be considered is the right to be

notified. In the case at bench, Job Hutt is entitled to a remedy for the
dereliction of the prosecutor to notify or any means to reach him. This
dereliction caused Job Hutt to be absent during the preliminary
investigation proceedings. The accused is entitled during the preliminary
investigation to discovery procedure. While recognizing the absence of
any provision in the Rules on Criminal Procedure for discovery
proceedings during preliminary investigation, such failure does not,
however, negate its use by a person under investigation when
indispensable to protect his constitutional right to life, liberty and
properly preliminary investigation is not too early a stage to guard against
significant erosion of the constitutional right to due process of an
accused.12

Issue IV

When a motion to quash is made to a complaint, whether upon one

ground or another, it should set out distinctly the grounds upon which the
objection is based. It cannot be couched simply in the language of the
Code. It must set forth distinctly the grounds upon which that language is
founded. A motion to quash was not invented to make useless work for a
court or to deceive or delude the prosecution. Its purpose was to clarify
all ambiguities; to make certain all indefinite assertions; to make the
prosecution express clearly and precisely the offense; to aid the parties in
arriving at the real issues; to promote understanding and prevent surprise.
To that end, a motion to quash should specify for the benefit of the
prosecution and the court as well, the very weakness which the movant
believes he sees in the complaint or information.13

12 Webb v. de Leon, 63 SCAD 916.

13 Oscar M. Herrera, Remedial Law Volume IV, (Manila: Rex Bookstore, 2007),644.
 When an unlawful arrest is made not in consonance with the
exceptions of a valid warrantless arrest, a ground for a motion to quash
becomes apparent. Under Rule 117, section 3 of the Rules on Criminal
Procedure, “The accused may move to quash the complaint or
information on any of the following grounds:…. (c) That the court trying
the case has no jurisdiction over the person of the accused;…” The
quashal of the information must be made before the accused entered a
plea or voluntarily submits himself to the jurisdiction of the court. This is
a crucial element to be jotted down when filing for a motion to quash.

The Supreme Court has held quite a number of cases, where it was
decided that the failure to make a timely objection to the illegality of the
warrantless arrest constitutes a waiver on the part of the accused. In
People v. Mahusay, G.R. No. 91483, November 18, 1997, appellants
Samuel Mahusay and Cristituto Paspos, along with Felomino Galo,
Alfredo Mendio, Justiniano Velacsi and Tanciong Egloba, were charged
with the crime of robbery with rape and physical injuries before the
Regional Trial Court of Leyte. The appellants were arrested on the sole
basis of Bughao’s verbal report. The arresting officers were led to suspect
that indeed, appellants had committed a crime. Thus, the arrest was made
in violation of their fundamental right against an unjustified warrantless
arrest. However, the Supreme Court held that they cannot find comfort
solely on this error. When the appellants were arrested and a case was
filed against them, they pleaded not guilty upon arraignment, participated
in the trial and presented their respective evidence. Appellants were
estopped from questioning the legality of their arrest. The Supreme Court
stated that they should have moved for the quashal of the information
before the trial court on this ground. Accordingly, any irregularity in
their arrest was cured when they voluntarily submitted themselves to the
jurisdiction of the trial court. The Supreme Court under People v.
Salvatierra, G.R. No. 104663, July 24, 1997, made the same illation with
the above ruling. Under this case, David Salvatierra was meted for the
crime of Murder for stabbing Charlie Fernandez. The accused appealed
his case to the Supreme Court assailing that the lower court made an error
in not finding that the arrest, investigation and detention of the accused-
appellant for the offense charged in the instant case violate of his
constitutional rights. Again, it was held that the appellant was estopped
for not questioning the illegality of the arrest before entering his plea.

So to speak, our issue in the case presented before us is a question

concomitant to the cases presented herein. Job Hutt was illegally arrested
three days after the actual incident occurred. On the same day of the
arrest, a complaint was filed with the prosecutor’s office. Subsequently,
on February 3, 2013, the office of the prosecutor filed a case of murder
against Job Hutt. He’s currently in detention now and trial proper has not
yet commenced, thus, he’s not been arraigned yet. The facts presented are
in no doubt, fall squarely on the ground for motion to quash. Since the
arrest was illegally made, consequently, the court acquires no jurisdiction
of the person of the accused. Job Hutt has not yet been arraigned so the
proper remedy is to move for the quashal of the information on the
ground that the court trying the case has no jurisdiction over the person of
the accused. He has not expressly waived his right yet, so this option is
still procurable at hand.

CONCLUSION/RECOMMENDATION

The citizen’s right to be free from arbitrary arrest and punishment

but also from unwarranted vexatious prosecution is enshrined in Article
III, section 2 of the Bill of Rights. When a warrantless is made upon a
person, it must be a valid warrantless arrest absorbed under Rule 113,
section 5 of the Rules on Criminal Procedure. When the warrantless
arrest is made in hot pursuit, it must have the following requisites; (1)
that an offense had just been committed, and; (2) the person making the
arrest has probable cause to believe, based on his personal knowledge of
facts or of other circumstances, that the person to be arrested had
committed it. As held under People v. Del Rosario and People v. Gerente,
there must be an immediacy between the time the offense is committed
and the time of the arrest. In Cadua v. Court of Appeals and People v.
Bansil, ‘personal knowledge of facts’, in arrests without warrant must be
based upon probable cause, which means an actual belief or reasonable
grounds of suspicion. As such, the arrest must be made based on the
personal knowledge of the arresting officers. In our case, Job Hutt was
arrested three days after the actual incident happened and was arrested
based on the personal knowledge of Jan Go and not the arresting officers.
Therefore, it appears that the warrantless arrest was an illegal one.

Under Article 6 of the New Civil Code, rights may be waived,

unless the waiver is contrary to law, public order, public policy, morals or
good customs, or prejudicial to a third person with a right recognized by
law. In our case, the arrest was illegal. The waiver signed by Job Hutt
was contrary to law and public policy, thus making such waiver void.

When a preliminary investigation is conducted, the respondent

must be notified or in any means to reach him. As held under Ong v.
Sandiganbayan, the failure to be notified of the preliminary investigation
is a denial of fundamental fairness which taints the preliminary
investigation. In the case presented to us, Job Hutt was not duly notified
of the preliminary investigation proceedings nor were there any efforts
made to reach him. As held under People v. Narca, the right to have
counsel during the preliminary investigation is not in the rules which
renders the preliminary investigation invalid. This cannot be made
applicable to our case. Therefore, Job Hutt is entitled to a reinvestigation
on the ground that he was not duly notified of the preliminary
investigation proceedings nor were there any efforts made to reach him.

Under Rule 117, section 3 of the Rules on Criminal Procedure, The

accused may move to quash the complaint or information on the ground
that the court trying the case has no jurisdiction over the person of the
accused. The quashal of the information must be made before the accused
enters a plea or voluntarily submits himself to the jurisdiction of the
court. Job Hutt has not waived his right to quash the information since
he’s currently in detention and has not been arraigned yet. To juxtapose
these contentions, it must be noted that Job Hutt was illegally arrested.
The waiver he signed for his arrest was void for being contrary to law and
public policy. Job Hutt could either move for a reinvestigation of the
preliminary investigation for not being notified and be present thereat, or
move to quash the information on the ground that the court has no
jurisdiction over him.