Warrantless arrest or unwarranted arrest

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It is not uncommon to either read or hear that persons were arrested without any court-issued arrest warrant. These news reports would normally generate questions such as, “Is this legal?” “Do our laws permit warrantless arrest of persons?” The answer to this question is a “Yes” but subject to well-defined limitations and requisites.

Arrest is “the taking of a person into custody in order that he may be bound to answer for the commission of an offense” (Section 1, Rule 113, Revised Rules on Criminal Procedure). As a rule, before a person may be arrested, courts must first issue a warrant of arrest; otherwise, an arrest will be considered illegal. However, awaiting the issuance of a warrant of arrest sometimes renders ineffective the arrest of the perpetrators of criminal offenses.
Thus, our laws enumerate permissible instances authorizing arrest of persons without any warrant issued by our courts.

Section 5, Rule 113 of the Revised Rules on Criminal Procedure provides that “a peace officer or a private person may, without a warrant, arrest a person: (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 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, and (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 is temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another.”

The first situation refers to in flagrante delicto arrest. Under this rule, it must be shown that: (a) the person to be arrested must execute an overt act indicating he has just committed, is actually committing, or is attempting to commit a crime and (b) such overt act is done in the presence or within the view of the arresting officer (Valdez vs. People, G.R. 170180, 23 November 2007). Thus, if a person is caught in the act of stealing money from a sari-sari store, he may be immediately arrested without any warrant.

The second situation is often described as the “hot pursuit” arrest. For this rule to apply, it is required that: (a) an offense has just been committed and (b) the arresting officer has probable cause to believe based on personal knowledge of facts or circumstances that the person to be arrested has committed it. (Pestilos vs. Generoso, G.R. 182601, 10 November 2014). Law enforcers need not personally witness the commission of a crime but they must have personal knowledge of facts and circumstances indicating that the person sought to be arrested committed it. (Veridiano vs. People, G.R. 200370, 07 June 2017) Also, there must be no appreciable lapse of time between the arrest and the commission of the crime. Otherwise, a warrant of arrest must be secured.

The third kind of warrantless arrest is self-explanatory. Necessarily, an escapee must be brought back to the prison or in the place where he is serving sentence without any warrant of arrest to be issued again by the court.

Note that the law authorizes a police officer or even an ordinary citizen to arrest offenders only if the latter are committing or have just committed a crime. (Posadas vs. Ombudsman, G.R. 131492, 29 September 2000).

Should an arrest be made not in accordance with the above rules, or otherwise put, if the arrest is not lawfully warranted, such apprehension will be declared illegal and the arresting officers may be prosecuted for the crime of Arbitrary Detention under Article 124 of the Revised Penal Code which penalizes any public officer or employee who, without legal grounds, detains a person. This is in addition to such other crimes or offenses that may be committed in the course of the illegal apprehension and detention.

From the moment the arrested person is brought in the custody of the law, he must be afforded his rights under the law. Under Section 12, Article III of the present Constitution, “any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing and in the presence of counsel.” It is provided further that “no torture, force, violence, threat, intimidation, or any other means which vitiate the free will shall be used against him. Secret detention places, solitary, incommunicado or other similar forms of detention are prohibited.”

Violation of the foregoing constitutional rights will subject the erring law enforcer to criminal prosecution for violation of Republic Act 7438, which defines certain rights of persons arrested, detained or under custodial investigation, as well as the duties of public officers.

It is always a balancing act — the obligation of the State to enforce the law to protect its citizens and the right of individuals to be similarly protected against possible abuses of the State. The best solution is to simply abide by the law. This will dispense with police intervention and bill of rights-invocation.

Email: nilo.divina@divinalaw.com

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