CHAPTER 2

ARREST, SEARCH, SEIZURE

And
PNP INVESTIGATION OPERATIONS

ARREST

 It is the taking of a person into custody in order that he may be bound to answer the commission of an
offense.

TWO MODES OF ARREST

 Arrest by Virtue of Warrant – a mode of arrest usually executed by a law enforcer upon the written
order of the judge.
 Warrantless Arrest – this is also known as citizens arrest. This can be executed by either law
enforcers or private persons.

TIME OF MAKING AN ARREST

 An arrest may be made on any day at any time of the day and night.

EXECUTION OF THE WARRANT OF ARREST

 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, the officer to whom it
was assigned for the execution shall make a report to the judge who issued the warrant.

RULES ON THE USE OF BODY-WORN CAMERAS IN THE EXECUTION OF WARRANTS

 During arrest it is required to have at least one body-worn camera and one alternative recording device,
a minimum of two devices to capture the events during the execution of arrest.

 In case of unavailability, the officer can file a motion before the court to use alternative devices.

 When making an arrest by virtue of the warrant, the officers wearing a body-worn camera shall notify
the person to be arrested that the arrest is recorded.

 Video and audio recorded shall be activated upon the arrival at the scene of arrest.

NOTE: During the warrantless arrest

- The arrest shall be recorder in the same manner

EFFECT OR FAILURE TO OBSERVE BODY-WORN CAMERA

 It shall not render the arrest unlawful or the evidence inadmissible. However, officers who failed to use
body-worn camera without justifiable reason or manipulate the recording shall be liable for contempt of
court.

PERSONS NOT SUBJECT TO ARREST / IMMUNITY FROM ARREST

1. Congressmen and Senators – a Senator or Member of the House of Representatives shall, in all
offenses punishable by not more than six years imprisonment, be privileged from arrest while the
Congress is in Session.

2. Sovereigns and Head of State – as provided by international law, they are immune from arrest.

3. Diplomatic Personnel - these are diplomatic agents officially appointed by the government of a
particular country, nation, or a state task to maintain international relations, represent the sending state,
and to conduct negotiations with the receiving country or state.

Child in Conflict with the Law (CICL) is arrested, he/she shall be processed by the Women’s and
Children’s Protection Desk (WCPD) officer and shall immediately separate from other adult suspects.
MIRANDA RIGHTS

 The right to be informed of the cause and nature of accusation

 The right to remain silent
 The right to counsel

ARREST WITHOUT A WARRANT

a. “When, in his presence, the person to be arrested has committed, is actually committing, or is
attempting to commit an offense”
 This is also termed as in flagrante delicto arrest.

b. “When, an offense has just been committed, and he has probable cause to believe based on personal
knowledge or facts or circumstances that the person to be arrested has committed it”
 This is also known as hot pursuit arrest. The phrase “has just been committed” connotes
immediacy”. The measurement of immediacy is between the time the offense was committed and
time the arrest was made.

c. “When the person to be arrested Is a prisoner who has escaped from a penal establishment or place
where he is serving final judgement or is temporarily confined while his case is pending or has escaped
while being transferred from one confinement to another”.

SEARCH AND SEIZURE

 Search – an infringement of an individual's reasonable expectation of privacy. “Search” here as applied

to law enforcement connotes a different meaning. “An inspection which does not intrude upon a
legitimate expectation of privacy or compromise any legitimate interest in privacy is not considered as
search.

 Seizure - detention of an individual or her property and removing that property from the control of the
citizen, or in effect, taking control of the individual.

SEARCH WARRANT

 Is an order in writing issued in the name of the People of the Philippines, signed by a judge and
directed to a peace officer, commanding him to search for personal property described therein and
bring it before the court.

MODES OF SEARCH

 Search by Virtue of a Warrant - a mode of search executed by law enforcers upon the written order of
the Judge
 Warrantless Search - a mode of search by police officers executed without the benefit of a warrant.

VALIDITY OF SEARCH WARRANT

A search warrant shall be valid for ten (10) days from the date of its issuance and thereafter considered
as void once not executed within the period required.

TIME OF MAKING SEARCH

 “The warrant must direct that it be served in the daytime”, unless the affidavit asserts that the
property is on the person or in the place ordered to be searched, in which case a direction may be
inserted that it be served at any time of the day or night.

RULES ON THE USE OF BODY-WORN CAMERAS IN THE EXECUTION OF WARRANTS

 During arrest it is required to have at least one body-worn camera and one alternative recording device,
a minimum of two devices to capture the events during the execution of search.

 In case of unavailability, the officer can file a motion before the court to use alternative devices.

 When making an arrest by virtue of the warrant, the officers wearing a body-worn camera shall notify
the person / occupants to be searched that the search is recorded.
  Video and audio recording shall be activated upon the arrival at the scene of searched.

EFFECT OR FAILURE TO OBSERVE BODY-WORN CAMERA

 It shall render the obtained evidences inadmissible. However, officers who failed to use body-worn
camera without justifiable reason or manipulate the recording shall be liable for contempt of court.

PROPERTIES TO BE SEIZED

 Subject of the offense;

 Stolen or embezzled and other proceeds, or fruits of the offense;
 Used or intended to be used as the means of committing an offense;
 Objects that are illegal per se, even if not particularly described in the search warrant, may be seized
under the plain view doctrine

WITNESS TO SEARCH RULE

 Search of house, room, or any other premise shall be made in the presence of the lawful occupant
thereof or any member of his family or in the absence of the latter, two witnesses of sufficient age and
discretion residing in the same locality.

ISSUANCE OF PROPERTY RECEIPT

 The officer seizing property under the warrant must give a detailed receipt for the same to the lawful
occupant of the premises in whose presence the search and seizure were made, or in the absence of
such occupant, must, in the presence of at least two witnesses of sufficient age and discretion residing
in the same locality, leave a receipt in the place in which he found the seized property”

VALID WARRANTLESS SEARCH AND SEIZURE

1. Warrantless Search Incidental to a Lawful Arrest

“A person lawfully arrested may be searched for dangerous weapons or anything which may have been
used or constitute proof in the commission of an offense without a search warrant.” The reasons of this search
are three folds:

 First, to confiscate weapons from the arrested person which the latter might use to harm the arresting
officer;
 Second, to prevent the arrested person from destroying any evidence within his or her reach; and,
 Third, to confiscate weapons that might be used as means of escaping.

2. Search of Evidence in Plain View

Plain view simply means anything seen in plain sight or having visual on things that are readily observable.

Plain View Doctrine

In order to have admissibility of seized evidence under the plain view doctrine, it must confirm first on the
following elements:

 A prior valid intrusion based on the valid warrantless arrest in which the police are legally present in
the pursuit if their official duties (I.e., trespass to a building to execute warrantless search is not
covered under plain view doctrine);
 The evidence was inadvertently discovered by the police who have the right to be where they are.

3. Search to a Moving Vehicle

 A warrantless search of a moving vehicle is justified on the grounds that it is not practicable to
secure a warrant because the vehicle can be quickly moved out of the locality or jurisdiction in
which the warrant must be sought.

4. Consented Warrantless Search

 Refers to the act of relinquishing or abandoning the right against search. However, it must be seen
that the consent to the search was voluntary.
 5. Customs Search

 Police officers generally empowered by law to effect arrests and execute processes of courts, when
acting under the direction of the Collector, has the authority to conduct custom searches within the
jurisdiction of the Bureau of Customs.

6. Stop and Frisk or Terry Searches

 Police officer also have the power to stop and perform through irrational impulses but the existence
of a reasonable suspicion. “A stop-and-frisk is as defined as the act of a police officer to stop a
citizen on the street, interrogate him, and pat him for weapons or contraband”. It should be noted
that “stop and frisk” does not cover mere suspicion.

CUSTODUAL 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.

RA 7438 of 1992

 It is an act defining certain rights of persons detained or under custodial investigation, as well as the
duties of arresting, detaining, and investigating officers. It is in congruence with the policy of valuing the
dignity of every human being and guaranteeing full respect for human rights.

RIGHTS OF PERSON ARRESTED, DETAINED OR UNDER CUSTODIAL INVESTIGATION

Here are the following rights under RA 7438 and RA 9745, of Persons Arrested, Detained or Under Custodial
Investigation:

1. He/she has the right to remain silent. If he/she waives his/ her right to remain silent, anything he/she
says can be used in evidence against him/her in court;

2. He/she has the right to counsel of his/her own choice. If he/she cannot afford one, he/she shall be
provided with an independent and competent counsel;

3. He/she has the right to demand a physical examination by an independent and competent doctor of
his/her own choice, before and after the interview/question. If the person arrested is a female, she shall
be attended to preferably by a female doctor. If he/she cannot afford one, he/she shall be provided with
a competent and independent doctor to conduct physical examination;

4. The State shall endeavor to provide him/her with psychological evaluation if available under the
circumstances.

5. He/she, including his/her immediate family, have the right to immediate access to proper and adequate
medical treatment; and

6. He/she has the right to be informed of such rights.

Duties of the Police during Custodial Investigation

The following are the duties of the Police during Custodial Investigation according to the section 2 of RA 7438
of 1992:

1. The arresting officer, or the investigator, as the case may be, shall ensure that a person arrested,
detained or under custodial investigation shall, at all times, be assisted by counsel, preferably of his
own choice;

2. The arresting officer, or the investigator, as the case may be, must inform the person arrested, detained
or under custodial investigation of the following rights under RA 7438 and RA 9745 in a language or
dialect known to and understood by him/her;

3. If the person arrested, detained, or under custodial investigation opted to give a sworn statement, the
arresting officer, or the investigator, as the case may be, must reduce it in writing and in the presence
of his/her counsel;

4. The arresting officer must ensure that, before the sworn statement is signed, or thumb marked, if there
is inability to read and to write, the document shall be read and adequately explained to the person
 arrested, detained or under custodial investigation by his/her counsel of choice, or by the assisting
counsel provided to him/ her, in the language or dialect known to him/her;

5. The arresting officer, or the investigator, as the case may be, must ensure that any extrajudicial confession made
by a person arrested, detained or under custodial investigation shall be:

a. In Writing;
b. Signed by such person in the presence of his/her counsel; or c.
c. In the latter's absence, upon a valid waiver, and in the presence of any of the parents, elder
brothers and sisters, his/her spouse, the municipal mayor, the municipal judge, district school
supervisor, priest, imam or religious minister chosen by him/ her.

6. The arresting officer, or the investigator, as the case may be, must, under established regulations, allow
the person arrested, detained, or under custodial investigation visits by or conferences with any
member of his/her immediate family, any medical doctor, priest, imam or religious minister chosen by
him/her or by any member of his/her immediate family or by his/her counsel, or by any local NGO duly
accredited by the Commission on Human Rights (CHR) or by any international NGO duly accredited by
the Office of the President. His/her "immediate family" shall include his/ her spouse, parent or child,
brother or sister, grandparent or grandchild, uncle or aunt, nephew or niece, guardian or ward, and
fiancé or fiancée.