CHAPTER 8

BASIC CRIMINAL PROCEDURE

It is important for investigators to be aware of basic

criminal procedure and to work within constitutional
guidelines and departmental procedures. This
chapter explains some of the more crucial procedures
within the criminal justice system that investigators
need to know.
Arrest
An Arrest is defined as the taking of a person into custody in order that he may be
bound for the commission of an offense. One of the basic functions of law
enforcement is to arrest violators of the law. An arrest could begin or end an
investigation. In some cases, suspect need to be developed, located and identified
before they are arrested, While other cases begin with an arrest then proceed to
identification of the suspect. An arrest may also occur at any point during an
investigation.

The following are individuals who are immune from arrest.

The president of the Philippines
Senators or members of the House of Representatives, while Congress is in session,
in all offenses punishable by not more than six years imprisonment
Diplomatic agents and their domestics under the Vienna Convention on Diplomatic
Relations
Methods of Arrest
An arrest may be made with or without a warrant , although a warrant is
generally preferred because this places the burden of proving that the arrest
was illegal on the defense. Police officers should note the following procedures
regarding these two methods of arrest.

1. With warrant of arrest

The officer shall inform the person to be arrested of the cause of the arrest
and of the fact that a warrant has been issued for this arrest, except when he
flees or forcibly resists before the officer has opportunity to 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 warrants shall be shown to him as soon as
praticable.
2. Without warrant of arrest

The officer shall inform the person to be arrested of his authority and the cause
of his arrest , unless the person to be arrested is then engaged in the
commission of an offense or is pursued immediately after its commission or
after an escape, or flees or forcibly resist before the officer has opportunity to
inform him, or when the giving of such information will imperil the arrest.
An arrest without warrant is considered lawful in the following instances:

When, in the law enforcers presence, the person to be arrested has

committed, is actually committing, or is attempting to commit an offense
When an offense has in fact just been committed , and the officer has
personal knowledge of facts indicating that the person to be arrested has
committed it
 When the person to be arrested is a prisoner who has escaped from a
penal establishment or place where he is serving final judgment or
temporarily confined while his case is pending, or has escaped while
being transferred from one confinement to another

If a person lawfully arrested escaped or is rescued, any person may

immediately pursue or retake him without a warrant at any time and in
any place within the philippines

When arrest the arrest is made by a bonds man for the purpose of
surrending the accused

Where the accused who is released on bail attempts to leave the country
without court permission
 Violation of conditional pardon, punishable under Article 159 of Revised Penal
Code as a case of evasion of service of sentence

Arrest following a Deportation Proceeding by the Immigration Commissioner

against illegal and undesirable alien

A police officer with probable cause or has reasonable grounds of suspicion that
the suspect committed the crime can also performed a hot pursuit arrest. A hot
pursuit arrest must have the following elements:

1. An offense has been committed

2. The offense has just been committed
3. There is probable cause based on personal knowledge of facts or
circumstances that the persons to be arrested were the ones who committed
it.
 Duties of the Arresting Officer
The arresting officer has the responsibility to execute
the warrant without necessary delay to arrest the accused and
to deliver him to the
nearest police station or jail.
The head of the office to whom the warrant of arrest was
delivered for execution shall caused the warrant to executed
within ten days from its receipt. Within ten days after the
expiration of the period, the officer to whom it was assigned
for execution shall made make a report to the judge who
issued the warrant. In case of his failure to execute the
warrant, He shall state the reasons therefor.
The specific duties of the arresting officer are
enumerated below (PNP,2011).

1. It shall be the duty of the officer executing

the warrant to arrest the accused and deliver
him without delay to the nearest police station
or jail for the recording of the fact of the arrest
of the accused.
 2. At the time of the arrest, with or without
warrant, it shall be the duty of the arresting officer
to inform the person to be arrested of the cause of
the arrest and the fact that a warrant has been
issued for his arrest (Section 7, Rule 113, Revised
Rules on Procedure) and in case of arrest without a
warrant, it shall be the duty of the arresting officer
to inform the person to be arrested of his authority
and the cause of the arrest (Section 8, Rule 113
Revised Rules of Criminal Procedure)
in the dialect or language known to him, except
when he flees or forcibly resists before the
officer has the 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.
 3. When women or children are among
the arrested suspects, the arresting
officer shall task the Women's and
Children's Protection Desk (WCPC) officer
or a policewoman who is familiar with
women and children protection desk
duties to conduct the pat-down search.
 4. The person arrested, with or without
warrant, shall be informed of his constitutional
right to remain silent and that any statement he
might make could be used against him. He shall
have the right to communicate with his lawyer
or his immediate family. It shall be the
responsibility of the arresting officer to see to it
that this is accomplished.
 5. A person arrested without a warrant shall
be immediately brought to the proper police
station for investigation withoit unnecessary
delay, and within the time prescribed in Article
125 of the RPC, as amended (i.e 12, 18 or 36
hours, as the case may be), shall be subjected
to inquest proceedings under Section 7, Rule
112 of the 2000 Rules of Criminal Procedure.
 6. No torture, force, violence, threat,
intimidation or any other means which
vitiate the free will shall be used against an
arrested person. The bringing of arrested
persons to secret detention places, solitary
confinement (incommunicado) or other
forms of detention is prohibited.
 7. If the person arrested without a
warrant waives his right under the
provisions of Article 125 of the RPC, the
arresting officer shall ensure that he
shall sign a waiver of detention in the
presence of his counsel of choice.
 8. If the person arrested waives his right
against self-incrimination and opts to give
his statement, the arresting officer shall
ensure that the waiver shall be made in
writing and signed by the person arrested in
the presence of counsel of his own choice or
a competent and independent counsel
provided by the government.
 9. When transporting suspects to the police
station, be sure that no weapons are retained
in their persons that could be used against
the arresting officer, regardless if the person
arrested is a noted criminal or not. It is also a
must that the arrested persons be
handcuffed to prevent violence.
How to Effect an Arrest
An arrest is made by an actual restraint of
the person to be arrested, or by his
submission to the custody of the person
making the arrest. It may be made on any
day and at any time of day or night.
 No violence or unnecessary force shall be used
in making an arrest, and the person arrested
shall not be subjected to any greater restraint
than is necessary for his detention. (Sec. 2, Rule
113 of Rules of Court). When making the arrest,
the arresting officer should use good judgment
in connection with the arrest and assume that
the subject is armed and will take the officer's
life if given an opportunity.
 When arresting on the street, it should
be made from the side or rear of the
person to be arrested when possible.
The subject should be forced toward a
building and the arresting officer should
avoid congested areas when possible.
 When arresting at home, office or business
establishment, the arresting officer should
restrict the subject's movement and not
grant requests for personal privileges before
being searched. Clothing and other things
requested should be examined for weapons
or items of evidence before turning them
over to the subject.
Any officer making a lawful arrest may
verbally summon as many as he deems
necessary to assist him in making the
arrest. Every person so summoned shall
assist him in the making of such arrest
when he can render such aid without
detriment to himself.
 Police officers must remember the following
procedures when an arrest is made:
1. Secure the person arrested, handcuff at the
back

Conduct a through search for weapons and other

illegal materials

Inform the arrested person of his rights as

provided for in the Constitution
 2. Use reasonable force in making arrest

Confiscated evidence should be properly

documented

Bring the arrested person to a government

accredited hospital for medical examination

Bring the arrested person to the police station for

documentation
 Police officers should also consider the following
when making an arrest.
Use of reasonable force
The force to be used must be one that which is only
necessary to overcome any actual resistance to the
arrest. In U.S. vs Mojica, 42 Phil 784 (1922), the
Supreme Court ruled that 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. The
force which he may exert therefore differ somewhat
from that which may ordinarily be offered in self-
defense. A police officer is not required to afford a
person attacking him the opportunity for a fair and
equal struggle.
 Arrest of suspects on board a moving vehicle
In general, vehicles carrying suspected persons
may not be fired upon solely to disable the car. The
driver or other occupants of a moving vehicle may
be fired upon only if the police has probable cause
to believe that the suspects pose an imminent
danger or death to the police or other persons, and
the use of firearm does not create a danger to the
public that outweighs the likely benefits of its use.
 Rights of the accused under custodial investigation
Custodial Investigation refers to the skillful
questioning of a suspect or a hostile witness to
divulge information on the crime being investigated.

The Miranda Doctrine dictates that 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
provided with one. These rights cannot be waived
except in writing and in the presence of counsel.
 Section 12, Article 3 of the Philippine Constitution
states that no torture, force, violence, threat,
intimidation, or any other means which vitiate the
free will shall be used against him. Secret detention
places, solitary, incommunicado or other similar forms
of detention are prohibited.
Any confession or admission in violation of Section 12
and Section 17 of the constitution which notes that
no accused shall be compelled to be a witness against
himself shall be inadmissble evidence against him.