2. Is the taking of a person into custody in order that he maybe
bound to answer for the commission of an offense.
It may be actual restraint of the person to be arrested, or by his
submission to the custody of the person making the arrest.
It signifies restraint on person, depriving one of his own will and
liberty, binding him to become obedient to the will of the law.
3. “A person who, being suspected by a police officer of
having committed an offense, was invited by the latter
and who voluntarily went with him, was considered
arrested, for arrest includes submission to the custody
of the person making the arrest.
The basis for his arrest being merely on suspicion, his
arrest was illegal.”
4. The application of actual force, manual touching of the
body, physical restraint or formal declaration of arrest is
It is enough that there be an intent on the part of one of
the parties the arrest the other and an intent on the part
of the other to submit, under the belief and impression
that submission is necessary.
5. Made by an actual restraint of the person to be arrested,
or by his submission to the custody of the person making
NO VIOLENCE OR UNNECESSARY FORCE shall be used in
making an arrest.
The person arrested shall not be subject to any greater
restraint than is necessary for his detention.
6. An arresting officer is never justified in using unnecessary force in
making the arrest.
If the arresting officer employs violence which is unnecessary to
effect the arrest or to prevent the escape of the person arrested,
he may be held criminally liable for resulting offense, UNLESS he
can show the justifying circumstance precluding “any person who
acts in the fulfillment of a duty or in the lawful exercise of a right
or office” from incurring criminal liability.
7. THIS TWO JUSTIFYING CIRCUMSTANCE REQUIRES
1. That the offender acted in the performance of a
duty or in the lawful exercise of a right.
2. That the injury or offense committed be the
necessary consequence of the due performance
of such duty or the lawful exercise of such right
8. IN ARREST WITH WARRANT, the 1st requisite is present,
but the 2nd requisite may be absent where there is
excessive use of force in effecting the arrest.
THUS, arresting officers may be held criminally liable if, by
their impatience or over-anxiety in the fulfillment of their
duty, they killed the person to be arrested without
resistance from the latter and without any previous inquiry
as to his identity.
9. There are persons who, by reason of their position, are
immune from arrest.
“Section 11, of Art. VI of the 1987 Constitution states that: A
senator or member of the House of Representative shall, in all
offenses punishable by not more than 6 years imprisonment, be
privileged from arrest while the Congress is in session.”
“No member shall be questioned nor be held liable for any other
place for any speech or debate in the Congress or in any
10. It shall be the duty of the officer
executing the warrant to arrest the
accused and to deliver him to the
nearest police station or jail without
11. The head of the office to whom the warrant of arrest has
been delivered for execution shall cause the warrant to be
executed within 10 days after the expiration of the period,
the officer to whom it was assigned for execution, shall
make report to the judge who issued the warrant.
In case of FAILURE TO EXECUTE the same, he shall state
the reason therefor.
12. REQUISITES FOR VALID SEARCH WARRANT AND WARRANT OF
ARREST (SEC. 2. ART. III)
1. It must be issued upon probable cause;
2. The probable cause must be determined personally by the judge himself;
3. The determination of the existence of probable cause must be made after
examination by the judge of the complainant and the witnesses he may
4. The warrant must particularly describe the place to be searched, and the
persons or things to be seized.
13. Bench warrants do not expire.
They are not automatically deleted after, for example, five years
if the police fail to find the subject of the warrant.
Indeed, the warrant will remain outstanding until the subject
dies, unless the judge otherwise recalls or quashes it for some
An outstanding warrant is a valid arrest warrant that was
originally issued months or years ago.
It is still valid because the person has not been arrested yet
unless it has been lifted.
14. FIRST: is upon filing of the information by the prosecutor.
In issuing this kind of warrant, the judge does not
personally examine the complainant and the witnesses
he may produce, but he merely evaluates personally the
report and supporting documents and other evidence
adduced during the preliminary investigation and
submitted to him by the prosecutor, and if he finds
probable cause on the basis thereof he issues the
warrant for the arrest of the accused.
15. SECOND: is upon the application of the peace officer.
In this kind of warrant, the judge must personally examine the applicant
and the witnesses he may produce, to find out weather there exists
probable cause, otherwise the warrant issued is null and void.
He must subject the complainant and the witnesses to searching
The searching questions, which a judge must profound for the issuance of
a warrant of arrest, are those, taking into consideration the purpose which
have a tendency to show commission of a crime and the perpetrator…
16. A peace officer or a private person may without a warrant, arrest a
a) When, in his presence, the person to be arrested has
committed, is ACTUALLY COMMITTING OR IS ATTEMPTING TO
COMMIT an offense;
b) When an offense has I n fact JUST BEEN COMMITTED, is
actually committing, or is attempting to commit an offense.
c) When the person to be arrested is a prisoner who has escaped
from a penal establishment or place where he is serving final
judgment or temporarily confined while his case is pending or
has escaped while being transferred from one confinement to
17. Section 5 of Rule 113 lays down the rule when a person
may legally be arrested without warrant by a peace
officer or by a private person.
The arrest affected by a private person is known as
WARRANTLESS ARREST and search and seizure may only
be properly made by a peace officer or private person
on the instances stated the prior slide.
18. The arresting officer has PERSONAL KNOWLEDGE of facts
indicating that the person to be arrested has committed it.
[section 5 (8)]
Caught in the act of committing a crime.---does not only require
that the arresting officer sees the offense, but also when he
HEARS the disturbance created thereby and proceeds at once to
LAWFUL ARREST: no need for a warrant for the seizure of the
fruit of the crime as well for body search upon him, these being
incidental to a lawful arrest.
19. The officer must have personal knowledge of offense just
committed. –to effect a warrantless arrest, for him to have
probable cause to believe based on personal knowledge of facts
indicating the person to be arrested has committed it.
An arrest of a person pursuant to this provision is called HOT
The grounds of suspicion are reasonable when the suspicion
that the person to be arrested is probably guilty of committing
the offense is based on actual facts. (a reasonable suspicion
coupled with good faith)
20. COURT held that there was probable cause to justify WARRANTLESS ARREST
in the following instances:
1. Where distinctive odor of marijuana emanated from a plastic bag carried by
2. Where the informer positively identified the accused who was observed to
have been acting suspiciously;
3. Where the accused fled when accosted by a policemen;
4. Where the accused riding a jeepney were stopped and search by policemen
who had received confidential reports (transported)
5. Where the moving vehicle was stopped and search on the basis of
21. ENTRAPMENT—ways and means to for the purpose of
trapping and capturing the law breakers in the
execution of their criminal plan.
Not a bar to prosecution and conviction.
INSTIGATION—the instigator practically induces the
would-be defendant into the commission of the
offense, and himself becomes co-principal.
The defendant would have to be acquitted.
22. Entrapment in the Philippines is not a defense available
to the accused while instigation that is a defense and is
considered an absolute cause.
THE DIFFERENCE lies in the origin of the criminal
intent. Entrapment—mens rea originates from the
mind of the criminal. Instigation on the other hand, the
law officers conceive the commission of the crime and
suggest it to the accused, who adopts the idea and
carries it into execution.
23. It is a form of entrapment employed by peace officers to catch a
malefactor in flagrante delicto.
Employment of ways and means for the purpose of trapping or
capturing a law breaker.
IN CONNECTION with violation of the Dangerous Drugs Act, is a
form of entrapment employed by peace officers to trap and
catch malefactor in flagrante delicto wherein a police officer in
civilian clothes would buy the prohibited drug and thereafter the
sale, would arrest the seller or or punisher violation of the Act.
25. Last paragraph of Sec. 5 (a) and (b) hereof—the
person arrested without a warrant shall be forthwith
delivered to the NEAREST POLICE STATION or JAIL.
The arrested person shall be delivered to the
PROPER judicial authority within the prescribed
period in Art. 125 of the RPC.
26. DELAY IN DELIVERY OF DETAINED PERSON TO THE
PROPER JUDICIAL AUTHORITIES—
1. 12 hours—crimes punishable by light penalties or their
2. 18 hours—for crimes or offense punishable by
correctional penalties or their equivalent;
3. 36 hours—for crimes and offense punishable by
afflictive or capital penalties or their equivalent.
27. Delivery of the detained person to the proper judicial authorities
MEANS filing of the complaint or information with the municipal
trial court or with the inquest fiscal or prosecutor who shall then
decide either to order the release of the detained person or file
the corresponding information in court.
The prosecutor will then conduct examination or conduct a
preliminary investigation if the case is cognizable by the RTC.
28. The arresting officer is mandated to execute the warrant without
unnecessary delay and to make a report to the judge who issued it
within 10 days from the expiration of the original day period from the
date the head of office of the arresting officer shall have caused its
execution by assigning it to the arresting officer.
IF THE ARREST IS WITH WARRANT—the arresting officer is required to
deliver the arrested person in the nearest police station/jail.
WITHOUT WARRANT– as authorized in Sec. 5 of Rule 113, arresting
officer must comply with Art. 125 of the RPC otherwise he may be
criminally liable for “ARBITRARY DETENTION” under Art. 124 of the
29. When making an arrest by virtue of a warrant, the officer shall
inform the person to be arrested of the cause of the arrest and
of the fact that a warrant has been issued for his arrest, EXCEPT
when he flees or forcibly resist before the officer has opportunity
so to inform him or when giving of such information will peril
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
30. At the time a person is arrested, it shall be the duty of the arresting
officer to inform him of the reason for the arrest and he must be
shown the warrant of arrest, if any.
He shall be informed of his constitutional rights to remain silent and
to counsel and that any statement he might make could be used
The arrested person has the right to communicate with his lawyer, a
relative, or anyone he choose by the most expedient means.
No custodial investigation shall be conducted unless in the presence
of his lawyer.
31. 1. The responding officer should inform the person arrested, the reason of his
2. The person arrested shall be informed of his constitutional rights to remain
silent and to counsel, and that the statement he might make could be used
3. The person arrested shall have the right to communicate with his lawyer, or
anyone he chooses by the most expedient means by telephone, if possible,
or by letter, or messenger. The arresting officer shall see to it that this is
4. No custodial investigation shall be conducted unless in the presence of his
counsel engaged by the person arrested, by any person in his behalf, or
appointed by the court upon petition of the detainee.
32. It refers to the questioning initiated by law
enforcement officers after a person has been
taken into custody or otherwise deprived of his
freedom of action in any significant way.
Such person is a suspect held under custodial
33. 1. Right to be informed why he is held.
2. Right to keep silent.
3. Right to counsel
4. Right not to waive such right without the
assistance of counsel
5. The right to exclude any statement taken from
him in violation of such right.
34. INVITED FOR QUESTIONING. –R.A. No. 7438 has extended
the rights under custodial investigation to an individual who
has not been formally arrested but has merely been
“INVITED” for questioning, such that anything he admits
without the assistance of counsel is INADMISSIBLE in
It includes the practice of issuing an “invitation” to a person
who is investigated without prejudice to the liability of the
“inviting” officer for any violation of law.
35. RE-ENACTMENT. –is part of a custodial investigation, and
pictures of the re-enactment depicting the accused’s role in the
commission of the crime cannot be utilized as evidence of his
participation where the re-enactment was conducted without
any lawyer assisting the accused.
It is a demonstration by the accused of how he committed the
It is admissible only if done by the accused with the assistance of
his counsel, without the same the evidence is not admissible.
36. It is not considered part of any custodial investigation
and it is conducted before that stage is reached.
PURPOSE: is to identify the suspect from among many
persons by the witness.
The test employed in resolving the admissibility of out-
of-court identification of suspects is the totality of
circumstances test stated on the next slide.
Positive identification destroys the defense of alibi and
renders it impotent.
37. ADMISIBILITY TEST: (requires the following)
1. The witness’ opportunity to view the criminal at the time of the
2. The witness’ degree of attention at that time;
3. The accuracy of any prior description given by the witness;
4. The level of certainty demonstrated by the witness at the
5. The length of time between the crime and the identification;
6. The suggestiveness of the identification procedure.
38. Identification of a person is not established through
knowledge of the name of a person but with
FAMILIARITY with physical features.
It is not part of the custodial investigation and for this
reason, the accused’s identification by a witness as the
suspect is inadmissible as evidence. (PP vs Macam)
A one-on-one confrontation may be tainted as to
render it inadmissible.
39. The subjection of an accused to ultraviolet ray
examination to determine the presence of ultraviolet
power is not considered part of the custodial
investigation as to require the presence of his counsel.
Neither is a normal audit examination by the COA of
the accountability of a public officer part of custodial
investigation, the examiner not being a law
enforcement, so that the examination report signed
without the assistance of a counsel is admissible in
40. A confession of an accused under custodial investigation, given
in the presence of his counsel appointed by him or by a person
in his behalf or by the court upon his petition or petition by
someone in his behalf, constitutes an evidence of higher order
since it is supported by the strong presumption that no person
of normal mind would deliberately and knowingly confess to a
crime UNLESS prompted by truth and his conscience.
It is admissible until the accused successfully proves that it was
given as a result of violence, intimidation, threat, or promise of
reward of leniency.
41. An extra-judicial confession of an accused during custodial
investigation in the absence of his counsel renders that piece of
evidence totally inadmissible.
When the threat or promise was made by, or in the presence of, a
person in authority, who has, or is supposed by the accused to have
power or authority to fulfil the threat or promise, the confession of the
accused is inadmissible.
A confession made under the influence of threat or promise of reward
or leniency is inadmissible.
VERBAL admission regarding the accused’s participation in a crime
made without the assistance of counsel is inadmissible.
42. IT MUST SATISFY THE FOLLOWING:
1. The confession must be voluntary;
2. It must be made with the assistance of a
competent and independent lawyer or counsel;
3. The confession must be express;
4. It must be in writing.
5. It must be signed or thumb mark by the
43. The extra-judicial admission of the accused in a custodial
investigation without the assistance of a counsel is inadmissible
HOWEVER, notwithstanding with that fact, the accused can still
be convicted if there are other testimonies and evidence
showing his guilt beyond a reasonable doubt.
Any violation of the accused’s rights during custodial
investigation is relevant material only to cases in which an extra-
judicial admission or confession extracted from him becomes
the basis of his conviction.
44. An accused’s confession to a person not an investigating
officer undertaking a custodial investigation is admissible.
When the accused talked to such person in a private
meeting, spontaneously, fully and voluntarily confessing
to his commission of a crime, the constitutional
requirements in a custodial investigation do not apply,
hence, confession is admissible in evidence against him,
even when he did so without the assistance of counsel.
45. The confession of an accused to the commission of a crime at
the time when he has not been in custody is admissible even
when he has not been informed of his right to remain silent
and to the assistance of counsel, for the right to be given
what known as MIRANDA WARNINGS applies ONLY when the
investigation has ceased to be a general inquiry into an
unsolved crime and has begun focus on the guilt of a suspect
and the latter is taken in custody or otherwise deprived of his
freedom in a substantial way. (PP vs Cayaaga)
46. There is illegal arrest where the arrest of a person is not justified
by any of the instances of a warrantless arrest, as provided in
Sec.5 of Rule 113.
The question whether the arrest is legal or illegal does not
depend upon the fact that the crime is committed by the person
arrested BUT upon the nature of the deed, which the arresting
officer may reasonably infer that the person arrested has
probably committed the offense.
The DUTY OF THE PEACE OFFICER OR POLICE OFFICER to make
an arrest by reason of a crime does not presuppose the
indubitable existence of a crime.
47. The ILLEGALITY of warrantless arrest may be cured.
The filing of an information in court and the subsequent
issuance by the trial judge of a warrant of arrest enable the
court to acquire jurisdiction over the person of the accused and
cured the defect of the originally warrantless arrest.
Jurisdiction of the court in criminal cases over the person of the
accused is acquired by the arrest of the accused by his voluntary
appearance in court.
If he allows himself to be arraigned—illegality of the arrest is
48. The accused may waived the illegality of his arrest, either
expressly or impliedly.
1. An accused who enters his plea of not guilty and participates in
the trial waives the illegality of his arrest.
2. OBJECTION TO THE ILLEGALITY must be raised BEFORE
arraignment otherwise it is waived.
3. Once the person has been duly charged in court, he may no
longer question his detention by a petition for habeas corpus,
his remedy being to quash the information and/or the warrant
49. 4. The question of its validity must be raised BEFORE the accused
pleads to the information, otherwise the objection is waived.
5. Where the accused did not raised as issue their warrantless
arrest before the trial court and before the Court of Appeals until
they filed a supplemental brief, they have effectively waived their
right to challenge the infirmity of the arrest.
6. Where there is defect in the issuance of a warrant of arrest, the
accused must question the same before arraignment otherwise
50. When making an arrest, a private person shall inform the person
to be arrested of the intention to arrest him and cause of the
arrest, UNLESS the latter is either engaged in the commission of
an offense, or is pursued immediately after its commission or
has escaped, or flees or forcibly resists before the person
making the arrest has the opportunity so to inform him, or
when the giving of such information will imperil the arrest.
Must deliver to the nearest police station/jail otherwise
criminally liable of “illegal detention”.
51. An officer making lawful arrest may orally
summon as many persons as he deems
necessary to assist him in making the arrest.
Every person so summoned by an officer shall
assist him in the making of the arrest, when he
can render such assistance without detriment to
52. An officer in order to make an arrest either by virtue of a
warrant, or without a warrant as provided in sec.5 may break
into a building or enclosure in which the person to be arrested is
or is reasonably belived to be, if he is refused admittance
thereto after he has announce his authority and purpose.
THE REASON OF THE RULE is that the person to be arrested
cannot use his house, building or enclosure as a shelter for
The inviolability of domicile cannot be a shield to presvent an
53. If a person lawfully arrested escaped or rescued,
any person (whether a public officer or a private
person) may immediately pursue or retake him
without a warrant at any time and in any place
within the Philippines.
54. Any member of the bar shall, at the request of the
person arrested or of another acting in his behalf,
have the right to visit and confer privately with such
person, in jail or any other place of custody at any
hour of the day or night.
Subject to the reasonable regulation, relative to the
person arrested can also exercise the same.