Invalid arrest

Dear Atty. Chris,

My brother was drinking coffee outside our house when two police officers approached him and asked him to take out the contents of his pocket. He obliged, and shortly after he got arrested and brought to the nearest station. They didn’t have a warrant. Is this legal and valid?

May

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Dear May,

Section 5 of Rule 113 of the Rules of Court states:

“Section 5. Arrest without warrant; when lawful. — 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.

“In cases falling under paragraph (a) and (b) above, the person arrested without a warrant shall be forthwith delivered to the nearest police station or jail… xxx”

The arrest of your brother was made without a warrant. However, in the case of Veridiano vs People (GR 200370, 7 June 2017), the Supreme Court through Associate Justice Mario Victor Leonen elucidated the first kind of warrantless arrest (in flagrante delicto): “For a warrantless arrest of in flagrante delicto to be affected, two elements must concur: (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; and (2) such overt act is done in the presence or within the view of the arresting officer. Failure to comply with the overt act test renders an in flagrante delicto arrest constitutionally infirm.” (emphasis supplied)

Applying the above-cited provision and jurisprudence in your situation, there was no probable cause for the police officers to believe that your sister was then and there committing a crime.

Hope this helps.

Atty. Chris Liquigan