V. RULE 113 - ARREST
A. Definition – Section 1: Arrest is taking of a person into custody in order that he may be bound to answer for the commission of an offense.
1. How (Section 2); when (Section 6); method (Sections 7,8 and 9)
1. Actual restraint of a person to be arrested, or by his voluntary submission to the custody of a person making the arrest
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Neither an application of actual force, manual touching of the body, or physical restraint, nor a formal declaration of arrest is required. It is enough that there is an intent to arrest the
other, and the other has intent to submit under the belief that submission is necessary.
2. No violence or unnecessary force – person arrested shall not be subject to greater restraint than what is necessary; a police officer making the arrest shall have a high level of caution of not
immediately drawing and firing his gun if the person asked does not heed his call
The reasonableness of the force employed will depend on: number of aggressors; the nature and characteristic of the weapon used; physical condition; size and other circumstances to include
the place and occasion of the assault
Guidelines provided by the SC in making an arrest and during the time of interrogation:
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The person arrested must be informed in a language known to and understood by him
He must be warned that he has the right to remain silent and that any statement he makes may be used as evidence against him;
He must be informed that he has the right to be assisted at all times and have the presence of an independent and competent lawyer of his choice
He must be informed that if he has no lawyer or cannot afford the services of a lawyer, one will be provided for him; may be appointed by the court
WON the person arrested has a lawyer, he must be informed that no custodial investigation in any form shall be conducted except in the presence of his counsel or after a valid waiver
has been made;
6. He must be informed that, at any time, he has the right to communicate or confer by the most expedient means telephone, radio, letter or messenger with his lawyer, any member of his
immediate family, or any medical doctor, priest or minister closed by him or be visited with duly accredited NGO
7. He must be informed that he has the right to waive any of said rights provided that it is made voluntarily and intelligently;
8. In addition, if the person arrested waives his right to a lawyer, he must be informed that it must be done in writing AND in the presence of counsel, otherwise, he must be warned that the
waiver is void even if he insist on his waiver and chooses to speak;
9. He must be informed that he may indicate in any manner at any time or stage of the process that he does not wish to be questioned with a warning that once he makes such indication,
the police may not interrogate him or will cease in doing so
10. He must be informed that his initial waiver of his right to remain silent, the right to counsel or any of his rights does not bar him from invoking it at any time during the process
11. He must also be informed that any statement or evidence, as the case may be, obtained in violation of any of the foregoing, shall be inadmissible.
Massiah Rule : Secret interrogation is in violation of the dictates of fairness and fundamental rights of persons charged with a crime; the right violated was against self-incrimination as the
incriminating statements were deliberately made to be elicited in the absence of his counsel while unaware that he was under interrogation
Custodial Investigation v. Preliminary Investigation:
Custodial investigation is 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
while Preliminary Investigation is an inquiry or a proceeding to determine whether there is sufficient ground to engender a well-founded belief that a crime has been committed and that the
respondent is probably guilty thereof and should be held for a trial.
WHEN (Section 6 – time of making arrest) – An arrest may be made on any day and at any time of the day or night
METHOD – Section 7 Method of arrest by officer by virtue of warrant – When making an arrest by virtue of warrant, the officer shall inform the person to be arrested of the cause of the arrest
and the fact that a warrant has been issued for his arrest, except when he flees or forcibly resists before the officer has opportunity to so inform him, or when giving of such information will
imperil the arrest (cases where he can dispensed with explanation of the cause of 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.
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In giving the warrant, police officer should introduce himself and give a proper identification (ID and badge) and they should also make a manifestation of authority against the person
to be arrested
Office shall inform the person to be arrested: 1. The cause of the arrest; and 2. The fact that a warrant has been issued for his arrest
After securing the person to be arrested, officer must conduct a thorough search for weapons and other illegal materials within his immediate control
Section 8. Method of the arrest by officer without a warrant – When making an arrest without warrant, the officer shall inform the person to be arrested of his authority and the cause of the
arrest, unless the latter is either engaged in the commission of an offense (in flagrante delicto) , is pursued immediately after its commission (hot pursuit) has escaped, flees, or forcibly resists
(arrest of escaped prisoners)before the officer has opportunity to so inform him, or when the giving of such information will imperil the arrest.
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If the underlined situation exists, the officer can dispense the introduction and explanation of cause of the arrest
Section 9. Method of arrest by private person – When making an arrest, a private person shall inform the person to be arrested of the intention to arrest him and the cause of the arrest,
unless the latter is engaged in the commission of an offense, is pursued immediately after its commission, or has escaped, flees, or forcibly resists before the person making the arrest has
opportunity to inform him, or when the giving of such information will imperil the arrest.
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Same rules with the first two methods
If police made an arrest outside of his place of assignment, it is valid as it is considered as citizen’s arrest
Arrest by barangay tanod is not citizen’s arrest because they are an accredited auxiliary of the PNP
Section 10. Officer may summon assistance – An officer making a lawful arrest may orally summon as many persons as he deems necessary to assist him in effecting the arrest. Every
person so summoned by an officer shall assist him in effecting the arrest when he can render such assistance without detriment to himself
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Not applicable to citizen’s arrest
Section 11. Right of officer to break into building or structure – An officer, in order to make an arrest either by virtue of warrant, or without a warrant as provided in Section 5, may break
into any building or enclosure where the person to be arrested is or is reasonably believed to be, if he refused admittance thereto, after announcing his authority and purpose.
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Only applicable to an officer making the arrest
Section 12. Right to break out from building or enclosure – Whenever an officer has entered the building or enclosure in accordance with the preceding section, he may break out therefrom
when necessary to liberate himself.
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This right is conditioned on the existence of a necessity to liberate himself
2. Who may arrest (Section 3 and 4)
Section 4 – Execution of warrant – the head of the 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 office whom it was assigned for execution shall make a report to the judge who issued a warrant. In case of his failure to execute the warrant, he
shall state the reason therefor.
Who may arrest?
1. Officer by virtue of warrant of arrest or without warrant
2. Private person
Section 3 - Duty of arresting officer:
1. to arrest the accused
2. to deliver the accused to the nearest police station or jail without unnecessary delay
B. Warrantless Arrests (Section 5)
1. In flagrante delicto rule - Section 5(a) – caught in the act of committing a crime
Elements of Section 5 (a) to operate:
1. the person to be arrested must execute an overt act indicating that he has just committed, is actually committing, or is attempting to commit a crime;
 where the overt acts does not indicate a felonious enterprise, evein if the person acts appears strange or suspicious there can be no valid warrantless arrest in flagrante delicto
2. such over acts is done in the presence or within the view of the arresting officer
 Reliable info alone without his personal knowledge is not sufficient to justify warrantless arrest
2. Hot pursuit rule – Section 5 (b)
Conditions that must occur for a warrantless arrest to be valid:
1. the person arrested must have just committed an offense
 There must be a large measure of immediacy between the time of offense was committed and the time of the arrest, if none a warrant of arrest must be secured
2. the arresting officer must have personal knowledge of the facts or circumstances indicating that the person to be arrested is the one who committed the offense
 Personal knowledge of the facts must be sufficiently strong in themselves to create a probable cause of guilt of a person to be arrest
 A reasonable suspicion must be founded in good faith
3. “Escape” rule – Section 5 (c)
Three kinds of escape that would warrant a warrantless arrest:
1. escape from establishment where one is serving a final judgement – jail breaking
 Escapee is presumed to be in the continuous act of committing a crime by evading the service of his sentence. Thus, he may be arrested where he may be found
2. escape from temporary confinement
3. escape while being transferred from one confinement to another
4. “Absconding” rule – Section 5 (c)
Other instances for this rule to apply:
1. May arrest persons out on bail for the purpose of surrendering the accused
2. May arrest persons released on bail if he attempts to leave the country while case is pending without the permission of the court
3. Under rule 113, sec 13 – if a person arrested escapes
5. Procedure: delivery to the nearest police station/precinct
a) Immediately bring the suspect/s to the police station and present him/her to the Desk Officer (DO) for recording in the police blotter the circumstances of the arrest as well as his/her identity;
b) Conduct a more thorough body search of the suspect/s. When women and/or minors are among those arrested, the duty WCPD officer shall do the thorough body search. Any deadly
weapon and illegal items found and seized shall also be recorded in the blotter. The AO shall indicate his/her rank and name and duly sign in the blotter entry;
c) Request the DO to prepare the “Request for Medical Examination of the Suspect” Form (Annex “F”);
d) Bring/escort the suspects to the government hospital referred to in the request form for the examination of the suspects;
e) After the physical/medical examination of the suspects, bring them back to the police station and turn them over, with the results of the examination, to the Duty Investigator (DI); and;
f) Obtain the “Arrest and Booking Form” (Annex “G”) and refer it to the DI so that they will diligently accomplish it. The copy of the Arrest and Booking Form shall form part of the case folder and
be kept at the Investigation Section at the police station;
g) Prepare and file the corresponding report to the judge on the execution of the warrant.
6. Assigned Readings:
a) Luz v. People, 667 SCRA 421
FACTS:
PO2 Alteza saw the accused driving a motorcycle without helmet. He flagged him down since driving motor with helmet is a violation of munical ordinance which requires all motorcycle drivers
to wear helmet while driving. He invited the accused to come in to their sub-station as he was being flagged down near the said sub-station. He noticed that the accused is being uneasy and
keep on getting something out of his jacket that why the police officer ordered the accused to empty his jacket pocket and discovered 2 cellphones, a scissor, a swiss knife and a metal
container that contains 4 plastic sachets, two of which are empty while the other two contained suspected shabu.
An information was filed against the accused before the RTC. The accused pleaded not guilty and testified for himself and raised the defense of planting of evidence and extortion.
RTC convicted the accused for illegal possession of dangerous drugs. The CA affirmed the said decision. Hence, this petition claiming that there was no lawful search and seizure as there was
no lawful arrest.
ISSUE: Whether or not accused’s arrest was valid
RULING:
There was no valid arrest of petitioner. When he was flagged down for traffic violation, he was not arrested. Under the law, the general procedure for dealing with traffic violation is confiscation
of driver’s license and issuance of ticket violation, not arrest.
Arrest is taking a person in custody for him or her to be bound to answer to the commission of the crime. It is effected by an actual restraint of a person to be arrested or by the person’s
voluntary submission to the custody of the one making arrest. Application of force is not required. It is enough that one has an intent to arrest the other and there be an intent on the other part
to submit, under the belief and impression that submission is necessary.
1. No intent on the part of the police officer to make an arrest – The accused was only invited inside the sub-station as the flagging down of him happened almost at the front the sub-station. It
cannot be considered an arrest.
* Per city ordinance, the said traffic violation was only penalized by fine and not arrest. Thus, under the ROC, an offense that is penalized by fine only need not a warrant of arrest.
Warrantless arrest also does not apply.
* If one is deemed arrested by awaiting the issuance of ticket for traffic violation, the requirements for valid arrest were not complied.
* It also can be noted that the constitutional requirements were only complied by the police officer after the accused had been arrested for illegal possession of drugs.
2. There being no valid arrest, warrantless search was illegal
b) Antiquera v. People, G.R. No. 180661 (11 December 2013)
FACTS:
The police officers, while conducting a police visibility patrol on Pasay City, saw 2 unindentified men rant out of a house. Suspecting that the crime was committed, The police approached the
house, peaked through partially opened door and saw the accused and his live-in partner holding an aluminum foil and a lighter, allegedly having a pot session. The police introduced
themselves and arrested the accused and his partner.
While inspecting, PO1 Cabutihan saw a wooden jewelry box containing an improvised burder, wok, scissors, 10 small transparent plastic sachets with traces of white crystalline substance, and
seven strips of aluminum foil. All of which are tested and found to be positive of traces of shabu.
An information was filed against the accused and his partner before the RTC of Pasay for illegal possession of drug paraphernalia.
In accused’s defense, they were sleeping when he heard a knock on their door, open it and found three policemen forcing themselves into the house. They were later arrested and shown a
wooden box which said to be seized from their house.
RTC found them guilty which the CA affirmed. Hence, this petition.
ISSUE: Whether or not the warrantless arrest was valid
RULING:
Section 5 (a), Rule 113 of the ROC – A peace officer or private person may, without a warrant, arrest a person when, in his presence, the person to be arrested has committed, is actually
committing, or is attempting to commit an offense. – IN FLAGRANTE DELICTO DONE IS THE PRESENCE OR WITHIN THE VIEW OF THE ARRESTING OFFICER
The circumstances does not make out a case for arrest made in flagrante delicto.
1. Since they suspected that a crime has been committed when 2 unidentified men ran out of a house and boarded a jeepney, the more logical action is to chase the jeepney where the 2
was on board as the policemen are in patrol car, instead of giving priority to the house.
2. They saw no activity that warranted their entering when they peaked through the partially opened door.
Clearly, no crime was plainly exposed to the view of the arresting officers that authorized the arrest of the accused without warrant under Sec 5 (a), Rule 113. Since the arrest was illegal,
search and seizure of the items was also illegal. Thus, the Court has no choice but no acquit the accused.
c) People v. Vasquez, G.R. No. 200304 (15 January 2014)
FACTS:
An informant went to the office of P/Insp. Fajardo and reported that a certain Donald Vasquez was engaged in illegal drug activity. The alias Don claimed that he was an employee of the NBI.
P/Insp. Fajardo relayed the info to her superior and a team was formed and set to conduct a buy-bust operation.
The informant introduced Fajardo to Don as a buyer and they agreed to meet the following day. On the day of the sale, they met at a restaurant where Don demanded to see the money while
Fajardo asked to see the drugs first. Thereafter, Don handed her a brown envelope containing plastic sachet which contained white crystalline substance. She gave the money to Don and
signaled that the rest of the team to rush at the scene. The 2 suspects were arrested. Fajardo marked the evidence and noticed that the envelope has also markings but ignored it. She found
out that the same was submitted as evidence before the NBI Crime Lab.
In accused’s defense, he is an NBI employee tasked to present evidence before the court in explaining the reason why he has drugs in his possession.
RTC found him guilty which the CA affirmed. Hence, this petition
ISSUE: Whether or not the arrest was valid considering that there was no search warrant
RULING:
The accused can no longer question the validity of his arrest because of his failure to move for the quashing of info against him before the arraignment. Any objection, defect or irregularity
attending an arrest must be made before the accused enters his plea on arraignment,
The accused was caught in flagrante delicto of selling illegal drugs to an undercover police officer in a buy-bust operation. His arrest falls under Sec. 5 (a), Rule 113 when an arrest without
warrant is deemed lawful.
Having established the validity of the warrantless arrest of this case, the Court holds that the warrantless seizure of illegal drugs seizure of the illegal drugs from the accused is likewise valid.
When a warrantless arrest permissible under ROC: arrest in flagrante delicto, arrest effected in hot pursuit, and arrest of escaped prisoners.
d) RA 7438
Section 2. Rights of Persons Arrested, Detained or Under Custodial Investigation; Duties of Public Officers. –
(a) Any person arrested detained or under custodial investigation shall at all times be assisted by counsel.
(b) Any public officer or employee, or anyone acting under his order or his place, who arrests, detains or investigates any person for the commission of an offense shall inform the latter, in a
language known to and understood by him, of his rights to remain silent and to have competent and independent counsel, preferably of his own choice, who shall at all times be allowed to
confer privately with the person arrested, detained or under custodial investigation. If such person cannot afford the services of his own counsel, he must be provided with a competent and
independent counsel by the investigating officer.lawphi1Ÿ
(c) The custodial investigation report shall be reduced to writing by the investigating officer, provided that before such report is signed, or thumbmarked if the person arrested or detained does
not know how to read and write, it shall be read and adequately explained to him by his counsel or by the assisting counsel provided by the investigating officer in the language or dialect known
to such arrested or detained person, otherwise, such investigation report shall be null and void and of no effect whatsoever.
(d) Any extrajudicial confession made by a person arrested, detained or under custodial investigation shall be in writing and signed by such person in the presence of his counsel or in the
latter's absence, upon a valid waiver, and in the presence of any of the parents, elder brothers and sisters, his spouse, the municipal mayor, the municipal judge, district school supervisor, or
priest or minister of the gospel as chosen by him; otherwise, such extrajudicial confession shall be inadmissible as evidence in any proceeding.
(e) Any waiver by a person arrested or detained under the provisions of Article 125 of the Revised Penal Code, or under custodial investigation, shall be in writing and signed by such person in
the presence of his counsel; otherwise the waiver shall be null and void and of no effect.
(f) Any person arrested or detained or under custodial investigation shall be allowed visits by or conferences with any member of his immediate family, or any medical doctor or priest or
religious minister chosen by him or by any member of his immediate family or by his counsel, or by any national non-governmental organization duly accredited by the Commission on Human
Rights of by any international non-governmental organization duly accredited by the Office of the President. The person's "immediate family" shall include his or her spouse, fiancé or fiancée,
parent or child, brother or sister, grandparent or grandchild, uncle or aunt, nephew or niece, and guardian or ward.
As used in this Act, "custodial 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.
Section 3. Assisting Counsel. – Assisting counsel is any lawyer, except those directly affected by the case, those charged with conducting preliminary investigation or those charged with the
prosecution of crimes.
The assisting counsel other than the government lawyers shall be entitled to the following fees;
(a) The amount of One hundred fifty pesos (P150.00) if the suspected person is chargeable with light felonies;
(b) The amount of Two hundred fifty pesos (P250.00) if the suspected person is chargeable with less grave or grave felonies;
(c) The amount of Three hundred fifty pesos (P350.00) if the suspected person is chargeable with a capital offense.
The fee for the assisting counsel shall be paid by the city or municipality where the custodial investigation is conducted, provided that if the municipality of city cannot pay such fee, the province
comprising such municipality or city shall pay the fee: Provided, That the Municipal or City Treasurer must certify that no funds are available to pay the fees of assisting counsel before the
province pays said fees.
In the absence of any lawyer, no custodial investigation shall be conducted and the suspected person can only be detained by the investigating officer in accordance with the provisions of
Article 125 of the Revised Penal Code.
Section 4. Penalty Clause. – (a) Any arresting public officer or employee, or any investigating officer, who fails to inform any person arrested, detained or under custodial investigation of his
right to remain silent and to have competent and independent counsel preferably of his own choice, shall suffer a fine of Six thousand pesos (P6,000.00) or a penalty of imprisonment of not less
than eight (8) years but not more than ten (10) years, or both. The penalty of perpetual absolute disqualification shall also be imposed upon the investigating officer who has been previously
convicted of a similar offense.
The same penalties shall be imposed upon a public officer or employee, or anyone acting upon orders of such investigating officer or in his place, who fails to provide a competent and
independent counsel to a person arrested, detained or under custodial investigation for the commission of an offense if the latter cannot afford the services of his own counsel.
(b) Any person who obstructs, prevents or prohibits 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 him or by any member of his immediate family or by his counsel, from visiting and conferring privately with him, or from examining and treating him, or from
ministering to his spiritual needs, at any hour of the day or, in urgent cases, of the night shall suffer the penalty of imprisonment of not less than four (4) years nor more than six (6) years, and a
fine of four thousand pesos (P4,000.00).
The provisions of the above Section notwithstanding, any security officer with custodial responsibility over any detainee or prisoner may undertake such reasonable measures as may be
necessary to secure his safety and prevent his escape.