Fundamental

s of Criminal
Investigation
and
Intelligence
SANDY ROIE P. CERCADO, RCRIM
Instructor I
Chapter V.
ARREST, SEARCH,
SEIZURE AND
RAID
ARREST
The term “arrest” came from the Latin word
"arrestare" which means "cause to stop" and
"restare" which means "stay behind”. This term
was used as early as the 14th century.

Arrest is the taking of a person into custody

in order that he/she may be bound to answer for
the commission of an offense (Sec. 1, Rule 113,
Rules of Court)
How is Arrest Made?
An arrest is made by an actual
restraint of a person to be arrested or by
his/her submission to the custody of the
person making the arrest (Sec. 2, Rule 113,
Rules of Court).
Two Modes of Arrest
1. Arrest by virtue of a warrant
2. Arrest without a warrant under
exceptional circumstances as may be
provided by the statute (Sec. 5, Rule
113, Rules of Court)
The Warrant of Arrest
Arrest Warrant is an order in writing
issued in the name of the People of the
Philippines signed by a judge directed to a
peace officer, commanding him/her to
arrest the person designated and take him
into custody of the law in order that
he/she may be bound to answer for the
commission of an offense.
Essential Requisites of a Valid Warrant of
Arrest
1. It must be issued upon probable cause which may be
determined personally by a judge after examination
under oath or affirmation of the complainant and the
witnesses he may produce.
Probable cause refers to the evidence that warrants a
person of reasonable caution in the belief that a crime was
committed.

2. The warrant must particularly describe the person to

be seized.
John Doe Warrant
John Doe Warrant is a warrant containing
no specific person to be arrested but only
descriptions based on the testimonies of the
victim/s or the witnesses It contains the
physical description of the accused as well as
other factors to be considered for the
identification of the accused.

Is there an Alias Warrant?

Yes. Alias warrant refers to the warrant of arrest issued by a judge to the peace
officer after returning the original warrant of arrest after the lapse of the 10-day
validity period
 Who may issue a Warrant
of Arrest?
The general rule on who is authorized to issue
warrant of arrest is the judge of any competent court
in the Philippines.

Who is a Warrant Officer?

Warrant Officer is any authorized member from the law
enforcement agency usually from the Philippine National
Police (PNP) or National Bureau of Investigation (NBI) who
holds a warrant for execution within 10 days from receipt
subject to renewal in case of failure to execute the same.
 Duties of an arresting officer
As provided under Section 3 of Rule 113,
the arresting officer has two primary duties

1. While arresting the accused/suspect, the

arresting officer should inform the cause of
arrest and of the fact that a warrant had
been issued to the arrested person, and
2. Any police officer making a lawful arrest
should take the person arrested without
unnecessary delay and deliver him/ her to
the nearest police station or jail.
 In case of Warrantless Arrest, it is the
inherent duty of the arresting officer to detain
the person/respondent and file the proper
information within the specified time as
provided under Article 125 of RPC which has
been amended by Executive Order No. 272 on
July, 25 1987.

It is not the physical delivery of the person that is required

under the law. What is legally required is filing the
information against the arrested person in the proper court
where the judge has the authority to issue an order of release
of confinement
It extended the period authorized to detain a person prior to
delivery to the judicial authority The law requires a police officer to
detain a person for some legal ground and file the appropriate
information to the proper judicial authority within the following
periods and conditions:

Periods of Delivering a Person to proper Judicial Authority (Art. 125,

Revised Penal Code I):

Time/Period Penalties
12 Hours Light penalties and their equivalent-
Correctional penalties and their
18 Hours equivalent
Afflictive/capital penalties and their
36 Hours equivalent
Execution of Warrant of Arrest
The head of office to whom the warrant of
arrest was delivered for execution shall cause
the warrant to be executed within 10 days from
its receipt.
Within 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 failure to execute
the warrant he/she shall state the reasons
therefor.
Even if not served within the statutory period of (10
days), a warrant of arrest remains valid unless:
a. The warrant was recalled by the issuing
court;
b. The respondent was already arrested,
c. The respondent voluntarily submitted
himself/herself to the jurisdiction of the
issuing court, or
d. The respondent died.

A warrant of arrest has NO expiry date. It remains valid

until arrest is effected or warrant is lifted.
Principles of Arrest
The following are the basic rules on arrest
1. A warrant of arrest is enforceable only within
the territory of the government or state issuing
the warrant.
2. In a warrantless arrest based on the commission
of a crime, the crime must have been committed
within the territory of the government or state
whose agents are carrying out the arrest.
3. In arrest based on a warrant of arrest, it is not
essential that the arresting officer has the
warrant in his possession at the time he carries
out the arrest.
 The Warrantless Arrest
As a general rule, it is a requisite that
warrant should be issued in the name of the
person to be arrested. Any peace officer who
arrests a person without warrant may be liable
under Article 125 of the Revised Penal Code
(Arbitrary Detention). The following are the
situations in which a police officer may arrest a
person without warrant based on (Rule 113,
Section 5, Rules of Court):
a. When, in his/her presence, the person to be
arrested has committed, is actually
committing, or is attempting to commit an
offense.

Related Cases:
The Supreme Court (SC) held that rebellion is a
continuing offense Accordingly, a rebel may be
arrested, with or without a warrant, as he/she is
deemed to be in the act of committing the
offense at any time of day or night.
Related Cases:
People v. Sucro (195 SCRA 388) It was held that
when a police officer sees the offense, although
at a distance, or hears the disturbance created
thereby, and proceeds at once to the scene
thereof, he may effect an arrest without a
warrant. The offense is deemed committed in
the presence or within the view of the officer
(CIDG Invest Manual, 2005, р. 185).
b. When an offense has in fact 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 (Doctrine of Hot
Pursuit).
Hot Pursuit (also termed in US as Fresh Pursuit)
shall mean an immediate, recent chase or follow-
up without material interval for the purpose of
taking into custody any person wanted by virtue of
a warrant or one suspected to have committed a
recent offense while fleeing from one police
jurisdiction to another, necessitating the pursuing.
Police Unit may cross jurisdiction boundaries that
will normally require prior official personal inter-
unit coordination but which the pursuing unit
cannot at that moment comply with due to the
urgency of the situation.
People v. Gerente

The case cites the policemen who saw the victim

dead at the hospital and when they inspected the
crime scene, they found the instruments of death,
and the eyewitness reported the happening and
pointed Gerente as one of the killers. The
warrantless arrest of Gerente only three hours
after the killing was held became valid, since the
policemen had personal knowledge of the violent
death of the victim and of the facts indicating that
Gerente and two others had killed the victim.
c. When the person to be arrested is an
escapee. Those who escaped from any penal
establishment or place where they are
serving final judgment or are temporarily
confined while their cases are pending. or
has escaped while being transferred from
one confinement to another may be arrested
by any peace officer or private person
without warrant.
d. When the right is validly waived. This is when
the person arrested consented to the arrest,
despite no warrant showed the person is
willing to be taken into custody.
Related Case:

People v. Dural
The illegality of the arrest is cured when the accused
files a petition for bail Appellant is stopped from
questioning the illegality of his arrest when he
voluntarily submitted himself to the jurisdiction of
the court by entering a plea of not guilty and by
e. When an accused who was released on bail
attempts to depart from the Philippines
without prior permission of the court where
the case is pending (Sec. 23, Rule 114, Rules
of Court).
f. Violent Insanity.
g. Ailment requiring compulsory confinement in
a hospital.
Standard Operating Procedure (SOP) of Arrest
without Warrant.
a. During the initial contact with the person to
be arrested, these steps should be followed:
1. Freeze or restrain the suspect,
2. Make the proper introduction as to
identity and authority to arrest
3. Inform the arrested person of the
circumstances of the arrest and recite to
him/her the Miranda Warning
4. Conduct thorough search for weapons
and other illegal materials,
5. As a general rule, no unnecessary force
shall be used in making the arrest,
6. Confiscated evidence shall be properly
documented; and
7. Bring the arrested person to the Police
Station for further investigation and
disposition;
b. In arresting without warrant, the officer
must inform the person to be arrested of
his/her authority and cause of the arrest.
However, these may not be exactly followed if:
1. The person to be arrested is engaged in the
commission of an offense;
2. He/she is pursued immediately after
committing a crime or after escape,
3. He/she attempts to flee from the officer
arresting him;
4. He/she forcibly resists before the officer has
the opportunity to inform him/her; or
5. When giving such information will imperil the
Illegal Arrest may Taint the Crucial Evidence of
Guilt
Although illegal arrest will not immunize
defendants against criminal prosecution, it may
lead to the inadmissibility of crucial evidence of
guilt. Physical evidence obtained during the

!
search and seizure incident to illegal arrest, such
as recovered stolen property or burglary tools,
will be considered tainted and therefore
suppressed under exclusionary rule.
Procedures in Making Legal Arrest
The actual arrest is usually made by an officer
stating to a person, "You are under arrest for ."
The person arrested should be told clearly - not
in police jargon or legalese- the reason for the
arrests. Officers should always be on-guard
when making the arrest. As noted, people could
react violently to being arrested even if
individuals appear to be meek and incapable of
violence.
Procedures in Making Legal Arrest
Depending on circumstances, the person may first
be handcuffed for the officer's safety. The arrested
person should be arched for weapons and
destructible evidence in typical arrest situation, an
officer should:
a. Announce the arrest and the reason for it
b. Handcuffed the person of warranted
c. Searched the arrested person for weapons and
evidence and
d. Give the Miranda Warning if questions are to be
asked
The extents of authority of arresting officer are
as follows:
1. Can employ necessary force to carry out the
arrest.
2. Can restrain the subject in order to take
him/her into custody
3. Can deliver subject to jail
4. Can orally summon as many persons as
he/she deems necessary to aid him during
the arrest.
The extents of authority of arresting officer are
as follows:
5. Can break into a building or enclosure where subject
is, or is reasonably believed to be, when admittance is
refused despite announcement of his/her authority
and purpose, and he/she incurs no liability for Trespass
to Dwelling because the purpose is to serve the ends
of justice.
6. Can break out of the building or enclosure when
necessary to liberate himself/herself
7. Can search arrested person for weapon or anything
used, or constitute proof in the commission of an
offense
The Use of Force in Making an Arrest

If the person being arrested offers no

resistance, no force should be used in making
the arrest.
Guidelines for Use of Force when making
an Arrest:
1. No resistance - Use no force
2. Resistance - This must be used only as much as
force as necessary to overcome resistance.

Rule 7 of Police Operational Procedure (2010)

provides that reasonable force can be used during an
armed confrontation. The police may use reasonable
force to overcome the threat posed by the suspect.
However the Officer-in Charge of the operation shall at
all times exercise control over his/her men in the area,
and shall ensure that no innocent civilian is caught in
the crossfire.
Guidelines for Use of Force when making
an Arrest:
3. Threat to Officer's Life - use deadly force.

Use of Deadly Force- The excessive use of force shall

be avoided. The use of firearm is justifiable by virtue
of the Doctrines of Self-Defense, Defense of Relative,
and Defense of Stranger, and if the police has
probable cause to believe that the suspect poses an
imminent danger of death or serious physical injury
to the police or other persons (POP Manual, 2010.
Rule 6).
Warning Shots
Police shall not use warning shots
during any police Intervention (POP
Manual, 2010, Rule 5).
Using Forcible Entry to Arrest
The right of the law enforcement officers to use
force to enter a building to make an arrest is almost 400
years old. The use of forcible entry to arrest was firmly
established early in common law, even though the
fundamental liberty of people includes protecting their
homes. However common law also recognized that
circumstances often demand immediate arrests and that,
accordingly, a house may sometimes be forcibly entered.
This necessity is recognized by the maxims, "No one can
have a castle against the king” and the King's keys unlock
all doors." Individual rights must yield to public necessity.
Duties of Arresting Officer in Case of Arrest
without a Warrant

a. The arresting officer shall inform the subject or

suspect, in the dialect or language known to
him/her, why he/she is being arrested, and of
his/her right to remain silent and to have a counsel
of his/her own choice, to be informed of his/her
authority and the cause of the 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 and escapes, or flees
or forcibly resists before the officer has opportunity
to so inform him, or when the giving of such
information will imperil the arrest.
b. The arrested person shall be delivered
to the proper authorities without
unnecessary delay and within the time
prescribed in article 125 of the Revised
Penal Code, as amended (12, 18, or 36,
hours, as the case may be).
c. The person arrested without a warrant
shall be delivered to the nearest police
station or jail, and shall be the subject
of inquest proceedings under Section
7, Rule 112 of the 2000 Rule of
Criminal Procedure.
d. If the person arrested without a warrant
waives his/her right to remain silent
under the provisions of Art 125 of the
Revised Penal Code and opts to give a
statement and present evidence for his
defense, the arresting officer shall
ensure that the waiver made by the
person arrested shall be in writing and in
the presence of his counsel of choice
(POP Manual Rule 9, SEC. 6, 2010).
Medical Examinations of Arrested Persons

Immediately after the arrest of a person

ordered arrested by the court, or a suspect
under investigation, he/she should be subjected
to a medical examination. Prior to his/her
release or any change of custody, the suspect
should also be medically examined by a medico-
legal officer or, in the absence of such medico-
legal officer, by any government physician in the
area (POP Manual, Rule 9, Sec. 7, 2010).
Prohibitions
No torture, force, violence threat, intimidation, or any
other means which violates the free will shall be used against a
suspect Secret detention places solitary confinement
(incommunicado) or other similar forms of detention shall be
prohibited (POP Manual Rule 9. Sec 8, 2010).
Record Check
The officer shall make a record check for the possibility
that the arrested person is wanted for crimes other that for
which the same was arrested (POP Manual, Rule 9, Sec 9, 2010)
Police Blotter
Each PNP operating unit shall maintain an official police
blotter where all types of operational and undercover dispatches
shall be recorded containing the five "W's and one "H" of
information (POP Manual Rule 1, 2010)
 Exemption from Arrest
1. Senators and members of the House of
Representatives, while Congress is in session, for
offenses punishable by not more than six years
imprisonment (Article VI, Section 11, Philippine
Constitution),
2. Ambassadors or Public Ministers of a foreign country,
authorized and received as such by the President of the
Philippines, and their domestic or domestic servant
duly registered with the Department of Foreign Affairs,
provided the foreign country concerned gives similar
protection to duly accredited diplomatic or consular
representatives of the Philippines (Republic Act No. 75).
 Exemption from Arrest
3. Those covered by a safety and immunity
guarantee of the President of the
Philippines;
4. Rebels issued with safe conduct pass by
the National Amnesty Commission, for
crimes/act committed in pursuit of rebellion
(Letter Dated 17 Feb 03 from NAC Chairman
to NBI Director).
 Exemption from Arrest
5. Those who, during and in connection
with any election, allegedly committed
an offense by act or language tending
to support or oppose any candidate,
political party or coalition (Sec. 266,
Omnibus Election Code).
 Common Problems in Arrest
Usually the problem in arrest is not in the
capability to effect the arrest, but rather in the task of
locating the subject When the expected resistance is
considerable, a police officer (arresting officer) may
always seek the help of his/her colleagues. However,
the following factors may help the arresting officer
locate the subject
1. complainant or victim
2. record check
3. his office or previous place/s of employment
4. the neighborhood
5. subject's hangouts
 The following are the possible areas where
arrest may be executed
1. At the subject's residence, as he/she steps out of the door of
his/her house
2. At his/her office during an entrapment
3. As he/she is returning to his/her residence late at night
4. While in the car on a street corner (arrest by interception)
5. At a parking area, after alighting from the car
6. At a hotel room where he/she thought he/she was safe
7. At a restaurant or any business establishment
8. At the NBI Compound while applying for clearance.
 Limitations of Arrest Warrant
The Ministry of Justice (MOJ) now Department of Justice
(DOJ) through Circular No. 3 dated 25 September 1978
provided the following prohibitions to effect arrest during.

1. Night time
2. Holidays
3. Weekends, unless it is a citizen's arrest, or an arrest
resulting from surveillance or entrapment, or for
crimes against national security, or for notorious and
dangerous criminals with outstanding warrant of
arrest, or for escapists and fugitives.
How an arrest is usually carried out?
Arrest is usually carried out in any of the following situations:

1. For subjects who are meek and non-violent, the situation may allow the arresting
officer to inform them of his/her authority and the existence of a warrant of
arrest. For subjects who are elusive or violent, it is better to take them by
surprise
2. When the operation partakes of the nature of a raid, informing or coordinating
with local police authorities is advisable.
3. When an elusive subject is reported to be in house or building, somebody must
case the area first
4. When intercepting an armed and violent subject who is inside a motor vehicle, it
may be dangerous to approach him openly to force an arrest. The wise thing to
do is to seek cover and order him/her out of the vehicle with arms raised
5. In case of entrapment where the culprits are also armed and dangerous, the
back up force supporting the arresting officers must be situated at a distance
that allows immediate response.
How an arrest is usually carried out?
6. In an arrest inside a building, the arresting officer must not accede to the
subject's request to go alone to the room and dress up
7. When the method of arrest is not simple but consists of coordinated actions,
there must be a briefing clearly understood by everybody. Time in watches must
be synchronized.
8. Sometimes, disguises are effective in gaining entry into a building to carry out
arrest. For example, arresting officers may pose as PLDT repairmen or MERALCO
linemen.
9. Do not underestimate the subject. Frisk him/her.
10. Do not hesitate to use handcuffs when the arresting officer feels insecure.
11. Arresting techniques (come along-holds) facilitate and add finesse to the arrest
of unwilling subjects.
12. When arresting a woman, it is advisable for the arresting officer to take along a
lady personnel of the agency or lady employee to avoid being misunderstood.
13. When escorting the subject in a vehicle soon after an arrest, the arresting officer
must pay close attention to the seating arrangement to prevent subject from
suddenly jumping off the vehicle, grabbing a weapon, or attacking the officer.
Malpractices of Arresting Officer
1. To take your subject to a secret detention place, and then to deny
having arrested him/her.
2. To make your subject sign waiver of detention, through intimidation
or deceit, and then to get a "comrade" lawyer to sign as counsel for
your subject.
3. To "frame up" your subject to show a crime supposedly exist for
which he was arrested.
4. To deny visitation by legal counsel by imposing a news blackout on
subject's presence and detention at police headquarters.
5. To "postdate" the time of arrest to show shorter period of detention.
6. To delay proceedings upon a petition for habeas corpus. For example,
a writ server may be given the run around from one office to another.
7. To make it appear that subject was already released when in fact he
was already liquidated.
What is to be done after an arrest?
1. Photographed
2. Fingerprinted
3. Medically examined and booked
4. Record checked.
5. Interviewed/Interrogated, when there is a pending investigation
involving subject, but
 it must be in the presence of defense counsel, and
 the subject must be informed of his/her constitutional rights.
6. Prepare joint affidavit surrounding the arrest. If arrest was made on the
occasion of an entrapment that is expected to lead to an inquest
7. Line-up or reenactment to be recorded in pictures. In a line-up, a witness
identifies Subject among a line of persons The line-up must be fair, and
not suggestive or leading. A reenactment is done when Subject admits
his participation in the crime.
8. Inquest or file charges the regular ways, as the case may be.
9. Return warrant of arrest, indicating that it was duly served.
to the issuing court
10. Prepare formal report on the case,
11. Minors below 16 years of age, arrested for prostitution or
other illicit conduct, shall be delivered within 24 hours to the
Department of Social Welfare Development (DSWD) or its
duly authorized office or agency in the place for protective
custody.
12. Arrest and detention of foreign nationals "shall be
communicated to the Department of Foreign Affairs for
information to the respective embassies.
13. Minors below 18 years old shall be referred to a Medico-
Legal Officer for physical and mental examination.
Rights of a Person under Arrest The following
are the rights of a person under arrest:
1. To be informed of the cause of arrest, and shown a
copy of the warrant, if any, as soon as possible.
2. Not to be subjected to violence or unnecessary
force during the arrest.
3. To be visited by and to confer with his/her
attorney, privately at any hour of the day or night.
4. To be visited by and confer with his/her relative
subject to reasonable regulations
5. In general, to bail himself/herself out as a matter
of right based on Rule 114, Sec 4.
Detention of an arrested person
1. If he was arrested by virtue of a warrant of
arrest, he shall be detained until:
a. he posts bail duly approved by a competent court
which then orders his release, or
b. the court issuing the warrant revokes or lift said
warrant of arrest for other reasons. (But the
detainee has to be released upon his/her
acquittal or of the case even without a bail or
lifting order).
2. If he was arrested without a warrant for the
commission of a crime, he can be detained for:
a. Twelve (12) hours if the crime is punishable by
Arresto Menor (prison term from 1 to 30 days),
public censure, fine below PHP 200.
b. Eighteen (18) hours if the crime is punishable by
Prision Correccional (prison term from 6 months
and 1 day to 6 years), Arresto Mayor (prison term
from1month and 1 day to 6 months), Suspension,
Destierro, Fine from PHP200 to PHP 6,000.
c. Thirty-six (36) hours if the crime is punishable by
Reclusion Perpetua (Literally life imprisonment. But
pardon is provided by law after 30 years of service)
Reclusion Temporal (prison term from 12 years
and 1 day to 20 years), Perpetual or Temporary
Absolute Disqualification, Perpetual or
Temporary Special Disqualification, Prision
Mayor (prison term from 6 years and 1 day to 12
years), Fine exceeding PHP 6,000 (Article 124,
Revised Penal Code II).
3. If he was arrested as an escapee from a place where he/she is
temporarily confined while his/her case is pending, he/she shall be
reconfined until he/she posts the required bail (Executive Order No.
272 dated July 1987)
4. If he was arrested attempting to leave the Philippines while on bail,
he shall be confined subject to the order of the court where the case
is pending. The court may raise bail or impose more stringent
conditions for subject's freedom.
5. If he was arrested after escaping from a place where he/ she is
serving final judgment, he/she shall be reconfined to serve his/her
remaining sentence, without prejudice to his/ her liability for the
crime of Evasion of Service of Sentence (Articles 157-159, Revised
Penal Code II).
6. If he was detained for violent insanity or for ailment requiring
compulsory confinement in a hospital, it appears that hospital
authorities have a say on his/her release, the same to depend on
whether he/she is no longer a threat to society or his/her ailment is
sufficiently treated.
Drawbacks of being an Arresting Officer
1. Arresting without legal grounds (Arbitrary Detention - Article 124,
RPC);
2. Carrying out justified arrest without warrant, but detains the
subject beyond 12/18/36 hours without an inquest or without a
valid waiver of detention (Delay in the Delivery of Detained Person
to the Proper Judicial Authorities - Article 125, RPC)
3. Delaying any proceedings upon a petition for the liberation of such
detainee (Article 126, RPC).
4. Pocketing arrested person's money or other valuables (Robbery -
Article 294, RPC).
5. Investigating or taking the sworn statement of any person arrested,
detained or under custodial investigation without informing
him/her of his/her right to remain silent, and to have competent
and independent counsel, preferably of his/ her own choice, or
without providing him/her such counsel free of charge if he/she
cannot afford one (Violation of Sec 4(a) RA 7438).
6. Obstructing, preventing or prohibiting any lawyer, any
member of the immediate family of a person arrested,
detained or under custodial investigation, or any medical
doctor or priest or religious minister chosen by the
subject or by any member of his/her immediate family or
counsel, from visiting and conferring privately with
him/her, or from examining and treating him/her, or from
ministering to the spiritual needs, at any hour of the day
or, in urgent cases, of the night (Violation of Sec 4 (b), RA
No. 7438).
7. Refraining from arresting an offender in a crime
punishable by life imprisonment and/or death, in
consideration of any offer, promise, gift or present (Art
211-A RPC on Qualified Bribery, a crime inserted by
Republic Act No. 7659 effective 31 January 1994).
 SEARCH
• The word "search" was derived from the Anglo-
Norman word "searcher," old French cerchier
which means "to explore," and Latin word
"circare" which means "go around in circles.“

• As used in criminal investigation, it is the act of

examining persons, documents, papers and
effects.
 Search Warrant

Search Warrant is an order in writing

issued in the name of the People of the
Philippines, signed by the judge and directed to
a peace officer commanding him/her to search
for personal property and bring it before the
court (Sec. 1, Rule 126, Rules of Court)
 Constitutional
Provision on "Search"
"The right of the people to be secured in their
persons, houses, papers and effects against
unreasonable searches and seizures of whatever
nature and for whatever purpose shall be inviolable,
and no search warrant or warrant of arrest maybe
issued except upon probable cause to be personally
determined by the judge after oath or examination
of the complainant or the witnesses he may
produce and particularly describing therein the
places to be searched and the persons or things to
be seized" (Sec 2, Art III, 1987 Constitution).
Rationale
What is sought to be guarded is a man's
prerogative to choose who is allowed entry to his/her
residence. In that haven of refuge, his/ her
individuality can assert himself/herself not only in
the choice of who shall be welcome but likewise in
the kind of objects he/she wants around him/her.
There, the State, however powerful, does not as such
have access except under the circumstances above
noted, for in the traditional formulation, his house,
however humble, is his castle".
Where is a search warrant be secured?
1. Any court within whose territorial jurisdiction a crime was
committed
2. For compelling reasons stated in the application, any court
within the judicial region where the crime was committed
if the place of the commission of the crime is known,
3. or any court within the judicial region where the warrant
shall be enforced.

However, if the criminal action was already filed, the

application shall only be made in the court where the criminal
action is pending based on Sec. 2, Rule 126, Rules of Court
(Talplacido, 2009).
 What are the requisite before a
Search Warrant is Issued?
A search warrant shall not be issued, except;
1. Probable cause exists in connection with one specific offense;
2. Presence of probable cause is determined personally by the judge
after an examination;
3. The judge must have personally examined, in the form of searching
questions and answers, the applicant and his witnesses and taken
down their written depositions;
4. The search warrant must particularly describe or identify the
property to be seized as far as the circumstances will ordinarily
allow;
5. The warrant issued must particularly describe the place to be
searched and the persons or things to be seized;
6. If warrant shall be issued only for one specific purpose; and
7. If must not have been issued more than 10 days prior to the search
made pursuant thereto based from sec. 4, Rule 126, Rules of Court.
Who should Witness a Search?
No search of a house, room, or any other premise
shall be made except in the presence of any of the
following:

1. The legal occupant thereof,

2. Any member of his/her family,
3. In the absence of the latter, two witnesses
of sufficient age and discretion residing in
the same locality according to sec 8, Rule
126, Revised Rules of Court.
 What are the Personal Properties to be
Seized?

1. Subject of the offense;

2. Stolen or embezzled and other proceeds, or
fruits of the offense; or
3. Used or intended to be used as the means of
committing an offense (Sec. 3, Rule 126,
Revised Rules of Court).
 What will the Officer do after Seizure has
been completed?
Sec. 12, Rule 126 Revised Rules of Court provides the following
considerations after the effect of seizure:
1. The officer must forthwith deliver the property seized to the judge who
issued the warrant, together with a true inventory thereof duly verified
under oath.
2. Ten (10) days after the issuance of the search warrant, the issuing judge
shall ascertain if the return has been made, and if none, shall summon
the person to whom the warrant was issued and require him/her to
explain why no return was made. If the return has been made, the judge
shall ascertain whether section 11 of this Rule has been complied with
and shall require that the property seized be delivered to him. The judge
shall see to it that subsection (a) hereof has been complied with.
The return of the search warrant shall be filed and kept by the custodian
of the logbook on search warrants who shall enter therein the date of the return,
the result and other actions of the judge. A violation of this section shall
constitute contempt of court.
 Seizure of Articles found in Possession of a
Person Arrested If one is legally arrested for an offense,
whatever is found in his possession or in his/her control
may be seized and used in evidence against the subject
(Alvero v. Dizon). But articles found in his/her
possession which have nothing to do with the crime
imputed against him/her must be returned to him/her,
otherwise, the law enforcer responsible thereto shall
be liable for theft or robbery as the case may be.
Instances of Warrantless Searches
Warrantless search is defined as the search and seizure of personal property
based on probable cause made by a police officer without a warrant. This is
true in cases of exigent circumstance. Exigent circumstance refers to a
situation whereby securing a warrant would make it less practical or useless.
The following are examples of exigent circumstances whereby a valid
warrantless search and seizure is applicable;
1. Search Incidental to a Lawful Arrest
Search incidental to a lawful arrest is defined as the
search and seizure of property made by any police officer upon a
valid arrest. The search and seizure of personal property are
allowed by law provided that the arrest was made by virtue of a
valid warrantless arrest (in flagrante delicto, hot pursuit or
escapee).
Can the person be searched first before the conduct of arrest?
What happens when the arrest is not valid in the first place?
2. Seizure in Plain View
Seizure in plain view refers to the confiscation of
embezzled or stolen property or where the property is
an evidence of a crime or will be used in committing
an offense in the presence of a police officer in plain
view.
The requirement of this warrantless search is
that the items to be searched and seized must be
vividly and clearly seen and that the same item/s
is/are considered as an evidence of criminal activity or
criminal proceeds
3. Stop and Frisk Rule
Stop and Frisk refers to the brief stopping of an
individual made by police officer based on reasonable
suspicion among person suspected to commit a crime or
in possession of dangerous weapon. Reasonable suspicion
is in lower grade than probable cause Reasonable
suspicion may be referred to as a justifiable suspicion that
the person is armed or dangerous Stop and frisk rule is
otherwise known as Terry Doctrine.
The requirement for this warrantless search to be
valid is that, the search must be limited only to the outer
clothing of the person ("pat down" search). If the pat
down search fails to manifest any weapon, dangerous
material or fruits of the crime, then the police officer shall
release the person subjected to search.
Q1. What if there is a manifestation after a pat down
search that a weapon is concealed?

ANS: The police officer should ask the person subjected to

search to expose the material or item.

Q2. Can the person say no to the request of police

officer?

ANS: Yes, but the police officer can have a strong ground
to hold the person and detain him temporarily and
request for search warrant.
Q3. How about if the person reveals the concealed
items?

ANS: The person can be arrested and police officer can

now proceed with complete search (search incidental
to lawful arrest)

What if the police officer inserts his hands in the area

where the item was concealed and successfully get
the same? Is the search valid?

ANS: No, that search is not admissible even if the item

confiscated upon the insertion of his hand is a weapon,
dangerous material or fruits of the crime.
4. Consented Warrantless Search
Consented warrantless search is a search
conducted upon the voluntary consent given by the
person exercising authority over the property or by
the rightful owner.

Q1: Can the government authorities conduct

search and seizure even without a search
warrant?

ANS: Yes, provided the person or the owner waives

his right against unreasonable search and seizure.
Q2: Can the person without authority over the premise give
consent?
ANS: No, it must be a person who exercises authority over the
premise.
Q3: How about if coercion is given to the person?

ANS: It will not be considered as consented search and therefore

any searched and seized items are inadmissible as evidence in
court.
Q4: How about if the person remains silent at the time of asking
his consent?
ANS: It will not be considered as a consent and therefore is not
considered and applicable under consented search
5. Search of Moving Vehicle
In searching a moving vehicle, law enforcement
officers are limited only to visual search. This means
that neither.
• The vehicle should be completely searched; nor
• The person should be bodily searched.

The extensive search and seizure of a vehicle stopped

will only be constitutionally valid fit will be done by
police officers who had probable cause to believe that
the driver is a law violator, his vehicle contains some
evidence of a crime or is suspected to commit a crime.
6. Tipped information search
Tipped information refers to the information
provided by an informant or any person regarding the
commission of an offense relayed through cellphone,
radio or telephone to the police who will cause his
arrest can search and seize personal property of the
person so described.

This doctrine was founded on the principle that

acquiring a search warrant would jeopardize the arrest
of would be violator. This is true in cases whereby
police officer is tipped by an informant about the
commission of a crime.
The Exclusionary Rule
This rule was derived from the case of Weeks
v. United States in 1914. It established a rule that
federal courts may not accept evidence obtained
by unreasonable search and seizure, regardless of
the relevance of these to the case. In the case of
Mapp v. Ohio the Supreme Court decided that this
will be applicable to all courts. This applies not only
to illegally seized evidence but also to evidence
obtained or developed from it, also called as "fruit
of the poisonous tree". This means that evidence
obtained in the process of illegal warrantless search
is not admissible as evidence in court.
Liabilities Related to Search and Seizure
The issuance of a warrant in line with search and seizure does not
automatically guarantee the success that evidence will be admissible
in court as part of its procedural requirements. Below are some of
the errors committed and the corresponding charges attached to
such violation if convicted. This includes the following:

1. Perjury - is a crime defined under article 183 of the Revised Penal

Code committed by any person who shall make any untruthful
statement and testify under oath, or make an affidavit upon any
material before a competent person authorized to administer an
oath. In line with the issuance of search, the police officer who
request the warrant, and make any untruthful statement in his
sworn statement which is made under oath before the presence
of the judge shall be liable for perjury. Same case shall be filed to
any complainant, victim or witness who, while executing an
affidavit shall make any untruthful statements;
2. Contempt of Court - this shall be charged
upon any police officer who fails to deliver
property and inventory to the court who
issue the warrant as provided under Section
6, Rule 126, Revised Rules of Court
specifically to police officer to whom the
warrant was issued or he fails to provide a
valid explanation when requested to do so.
The same is true to the custodian who fails to
record to the logbooks the date of return, the
result of the execution of warrant and other
action of the judge taken;
3. Violation of Domicile - is a crime defined under
article 128 or the Revised Penal Code, committed by
public officer or employee who is not authorized by
juridical order, shall enter a dwelling against the will
of the owner and effect a search without the consent
of the same. This will be the liability or the charge of a
particular police officer who will enter and search a
particular house, building or any structure without a
valid search warrant and seized personal property
found therein; and
4. Petition for Certiorari - if the judge acted with grave
abuse of discretion and issued a warrant without the
existence of probable cause, rule 65 of the Rules of
Court shall be applied. The person aggrieved may file
a petition for certiorari.
Types of Search after Arresting a Suspect:

1. Wall Search. The initial purpose of this search is to

put the suspect in an "off-balanced position". This
is the safest type of search, it does not necessarily
require a wall. Any object that can support the
weight of the suspect (such as a car)can be used.
2. Standing Search. This is done by instructing the
subject to raise his hands above or behind his/her
head with feet spread apart as far as possible. In
some situations, this is not recommended because
some suspects could still maintain their balance.
Types of Search after Arresting a Suspect:

3. Kneeling Search. This requires the suspect to kneel

on the ground with hands raised over or behind
his/her head. Note that some suspects could still
make counter actions against the arresting officer
even if they are assuming this position.
4. Prone Search. The suspect in this search lies on his
stomach with arms and legs outstretched. One
disadvantage of this search is that the suspect's
frontal area cannot be searched properly. This type of
search can be dangerous if the subject has knowledge
in judo, aikido and other similar forms of defense
tactics.
 RAID
is a surprise invasion of a building or area.
It is a small- scale attack of a limited
territory. A raid must be legal, having its
basis in lawful process and conducted in a
legal manner through search warrant or
warrant of arrest. Raid may be in pursuit of
a person reasonably believed to be guilty
of a felony when it is known that the
felony has just been committed.
Purpose of a Raid
1. To effect apprehension
2. To obtain evidence of illegal activity by
surprising the offenders in flagrante delicto
3. To recover stolen property
Qualifications of Raid Team
1. Has Leadership Ability
2. Good Judgment
3. Tactfulness
4. Coolness and Stability
5. Experience
6. Discipline
7. Steady Nerves and Mental Stability
Composition of a Raid Team
1. Raid Commander
2. Assistant Raid Commander
3. Covering or surrounding party
4. Going-in detail or entering party
5. In charge of raiding vehicle
6. In charge of rendering inoperative to the subject’s
vehicle, if any
7. Recorder who should keep log of the raid, gather
evidence, make inventories and testify in court
8. Photographer
 Raid Operation
Coordination of individual efforts is an essential
element in the success of the raid. The raiding party
should act as a team. The members of the teams
must thoroughly understand the objectives, the
plan and the orders. Each man should hold his/her
assigned position until his/her orders are changed
by the team leader. Before leaving the
headquarters to proceed to the target, the team
leader must conduct final briefing to his/her entire
personnel.
Coordination with the Local Station Commander
It is imperative that immediately before the
service of a search warrant the team leader
should see to it that proper coordination is made
with the station commander having jurisdiction
over the target premises. The coordinating party
is bound merely to relay that their team is
conducting an operation in their area. This
gesture of coordination is not only a
manifestation of courtesy but also a safety
measure to avoid the possibility of a mistake
encounter.
Don'ts in a Raid The following should be avoided
during the conduct of raid:
1. Don't take unnecessary chances.
2. Don't underestimate the ability or courage of the subject(s)
3. Don't raid when not properly prepared.
4. Don't endanger the lives of bystander.
5. Don't use raiders that are not well-acquainted with each
other.
6. Don't forget gas mask when employing tear gas.
7. Don't make unnecessary rough on the subject(s).
8. Don't shoot to kill unless very imperative.
9. Don't touch the evidence unless seen by witnesses, or by the
owner or occupant of the place.
How is seizure conducted in a raid operation? Seizure
during the raid operation shall be performed through
the following guidelines:
a. The following will be seized at the scene of
the raid
1. Weapons that maybe used against the raiding
party2
2. Articles which might be used as a means of suicide.
3. Articles which might be used in escaping
4. Articles which may be used in the commission of
the crime
5. Proceeds or fruits of the crime.
b. Disposition of money and other valuable property

1. Money should be counted and the serial number of bills

should be noted.
2. Valuables should be sealed in a property envelope in the
presence of the arrested person/owner.
3. Property envelope should show a complete inventory of the
firearms.
4. The arrested person/owner should sign their names.
5. Raiding officer should sign their name on the outer part of
the envelope.
6. A receipt should be given to the arrested person/owner.
However, this is qualified by the decision of the Supreme
Court declaring as inadmissible in evidence the receipt for
property seized, signed by the accused, in case where mere
possession of the items seized is punishable.
c. Disposition of articles not covered in search
warrant:

1. If the articles are illicit or contraband, the same

must be seized.
2. Such articles maybe used as evidence to
prosecute the person.
3. Non-contraband articles must be returned to the
owners or must not be seized in the first place.
 Legality of a Shoot-To-Kill Order
Q1: Would it be legal for the President of the Republic of the
Philippines, or, the Secretary of Justice, or the Secretary of the
Interior and Local Government, or any other superior public
officers to declare or issue a "shoot to kill order" against
suspected criminal offenders or accused persons who are at
large and charged of heinous crimes, or against notorious
criminals, or fugitives of justice who are known to be heavily
armed and dangerous?

Answer: No. A "shoot to kill order" is not only a palpable,

flagrant, deliberate and intentional violation of the constitutional
and procedural due process and violation of human rights, but
more importantly, is Inherently illegal per se. There is no existing
law or jurisprudential authority in the Philippines that legally
allow such kind of order.
Q2: Why is a "shoot to kill order" inherently illegal per
se?
Answer: A "shoot to kill order" is not synonymous to a
cautionary warning to law enforcers to be extra-careful in
pursuing the wanted criminals for being armed and
dangerous.

It is a basic rule of law that in case of imminent

danger to life and limb, the law enforcers are legally
bound, in the lawful performance of their duty, to use
reasonable force to prevent and repel it. Obviously, a
"shoot to kill order" is an implied insinuation for law
enforcers to disregard the rule of law and the "rule of
engagement" if only to accomplish the ultimate purpose
of subduing the illegal activities of criminal elements. No