Survive Warrantless Arrests

Have you been picked up by the police?  If you’re to be detained, keep in mind that under Section 5, Rule 113 of the Revised Rules of Criminal Procedure, 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 in fact just been committed, and he has personal knowledge of facts indicating 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 temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another.

Under Section 5(a) of Rule 113, the officer arresting a person who has just committed, is committing, or is about to commit an offense must have personal knowledge of the fact. The offense must also be committed in is presence or within his view. (Sayo v. Chief of Police, 80 Phil. 859). This is where the terms “in flagrante delicto” and “caught in  the act” find application.

In arrests without a warrant under Section 5(b) of Rule 113, however, it is not enough that there is reasonable ground to believe that the person to be arrested has committed a crime. A crime must in fact or actually have been committed first. That a crime has actually been committed is an essential precondition. It is not enough to suspect that a crime may have been committed. The fact of the commission of the offense must be undisputed. The test of reasonable ground applies only to the identity of the perpetrator. Parenthetically, it may be observed that under the Revised Rule 113, Section 5(b), the officer making the arrest must have personal knowledge of the ground therefor as stressed in the case of People v. Burgos.

In People vs. Mengote (G.R. No. 87059, June 22, 1992), the Supreme Court held that the accused acts of merely “looking from side to side” and “holding his abdomen,” do not constitute enough basis to implement a warrantless arrest. There was apparently no offense that had just been committed or was being actually committed or at least being attempted by the accused in the presence of the arresting officers.In this case, the Solicitor General argued that the actual existence of an offense was not necessary as long as Mengote’s acts “created a reasonable suspicion on the part of the arresting officers and induced in them the belief that an offense had been committed and that the accused-appellant had committed it.” The Court  shot down this argument stating that no offense could possibly have been suggested by a person “looking from side to side” and “holding his abdomen” and in a place not exactly forsaken.

Your Rights During an Arrest

The arresting officer may not take any liberties on your person during a valid arrest.  Be guided with this checklist.

Yes/No ____ I was allowed to remain silent

: One of the most important rights of a person accused of a crime is the right to remain silent. You cannot be forced to divulge information to the police. This right stems from the US Fifth Amendment right against self-incrimination. In other words, you are not required to prove your case for the police. They are responsible for developing the evidence to prove you have in fact committed a crime. The right to remain silent was confirmed in the U.S. Supreme Court case of Miranda v. Arizona.  Such ruling is binding in this jurisdiction. If you attempted to remain silent in the face of police questioning, and were coerced or forced into speaking, your rights have been violated.

____ I was told that anything I chose to say can be used against me

: The police must inform you that if you chose to speak, “anything you do say may be used against you in a court of law.” If you were told that you had the right to remain silent, but were not informed of the consequences of choosing to speak, your rights may have been violated.

____ I was allowed to have an attorney present when I requested one:

Another absolute right of a person under arrest for a crime is the right to have an attorney present during questioning and the right to have counsel during any trial. If you requested an attorney during questioning, and the police denied you that request, your rights may have been violated.

____ I was not asked questions while my attorney was absent:

Once you request the assistance of an attorney, the police are prohibited from questioning you later without your attorney. In other words, you have the right to have an attorney present during the first, and any subsequent, talks with the police.

____ I was not forced to pay for my attorney’s services:

Just as you are entitled to have an attorney, you are also entitled to a state-paid and appointed attorney if you can not afford your own attorney per a state’s or county’s guidelines. If you fall within this category, you will be assigned a public defender to represent you.

____ Although I initially didn’t ask for an attorney, when I asked for one later in my questioning, questioning stopped and didn’t start again until my attorney arrived:

In many situations, criminal suspects may have false confidence that they can handle the matter on their own, without the assistance of an attorney. A criminal suspect who decides to answer police questions without an attorney present still has the right to ask for an attorney at any later point. Once a suspect asks for an attorney, all questioning must stop until the attorney arrives.

____ I was treated humanely:

Unfortunately, police brutality and unfair treatment continue to daily. A criminal suspect is entitled to humane treatment, no matter how heinous the alleged crime. If you were not treated humanely, for instance if you were deprived of food and water or if you were beaten on the genitals either during police questioning or while in a holding cell, your rights may have been violated.

____ I was not held unfairly:

The government cannot hold you for an extended period of time without charging you with a crime. For instance, if you are placed in a holding cell under suspicion of murder, the government must officially charge you with that crime within a specified period of time. In some states, a charge must be brought within forty-eight hours; in other states the time limit is different. If you have been held without being charged for longer than the legal amount of time, your rights may have been violated.

____ I was not treated as guilty before convicted:

Criminal suspects being held in jail awaiting trial may not be treated as guilty individuals before they have actually been convicted, no matter how strong the evidence is against them. The cornerstone of the criminal justice system is the belief that all people are innocent until proven guilty. If you were punished or treated unfairly while awaiting trial, your rights may have been violated.

____ I was given a speedy trial:

You are also entitled to what is called a “speedy trial.” In other words, once you are charged the government cannot purposefully drag its feet and wait to commence a trial against you. If it does, your rights may have been violated.

____ I was not subjected to “cruel and unusual punishment” while imprisoned:

The  Constitution guarantees that prisoners must be free from “cruel and unusual punishment.” Once you have been convicted of a crime and incarcerated, you must be treated in a manner that does not constitute “cruel and unusual” punishment. Therefore, any punishment that can be considered inhumane treatment or which violates the basic concept of a person’s dignity may be found to be cruel and unusual. For example, your rights may have been violated if you were given only dirty water to drink while incarcerated, or if the condition of your cell was unsanitary.

Miranda Rights: Your Rights During an Arrest in a Vehicle

If you are stopped while driving a motor vehicle.

·         Simply avoid speaking with the officer at all costs.  Tell him or her that you are not going to speak with them under any circumstances.

·         Hand over your driver’s license, registration and insurance paperwork and remain seated in the vehicle with your hands in full view of the officer. 

·         If the officer asks you to get out of the car, explain that you are not going to take any field tests under any circumstances.  Tell the officer to charge you with an offense or let you go. 

·         This will generally draw the response that you are under arrest.  The officer will then ask you to get out of the car.  At this point you must comply with the officer or be charged with resisting arrest. Don’t make matters worse, do as your told.

·         Simply get out of the car, hold out your hands for the handcuffs, and keep your mouth shut.

·         If you are taken into custody its not the end of the world. You will have to endure several hours at the local jail and have to pay to be bonded out, but the good news is that your chances of beating your case are much better because you remained silent. Remember the old adage “fish die by the mouth” pick the fights you know you can win. So you lost the battle but you did not loose the war that’s what counts ask any lawyer.

Print the following and keep it safe with you

Miranda Rights

Duty of the arresting officer or individual after a warrantless arrest

Article 125 of the Revised Penal Code requires the arresting officer or individual to deliver to the proper judicial authorities a person arrested and detained by virtue of warrant less arrest within the prescribed hours:

  1. 12 hours for offenses punishable by light penalties or their equivalent;

  2. 18 hours for offenses punishable by correctional penalties or their equivalent; and

  3. 36 hours for offenses punishable by afflictive penalties or their equivalent.

“Deliver to the proper judicial authorities” simply means that appropriate charges should be filed in court against the accused and thus it should be within the prescribed hours mentioned depending upon the gravity of the offense committed.

If after the prescribed hours, the arresting officer who is a public officer or employee did not file charges against the suspect within the ambit of Article 125, he can be charged for “delay in the delivery of the proper persons to the proper judicial authorities” under Article 125 of the Revised Penal Code. If the arresting person is a private individual, the charged can be “illegal detention” under Article 267 of the revised Penal Code.

Arrest After Hot Pursuit

Under the rule on “hot pursuit” arrest, the policeman should have personal knowledge that the suspect committed the crime. The test is probable cause, which the Supreme Court has defined as “an actual belief or reasonable grounds of suspicion.”

Under this rule, the policeman does not need to actually witness the execution or acts constituting the offense. But he must have direct knowledge, or view of the crime, right after its commission.

* Mentally disabled persons on emergency grounds.

* Arrest based on unreasonable suspicion.

The Constitution does not forbid warrantless search; it only forbids unreasonable search. The Rules of Court, Rule 126, Section 13, allows a warrantless search, provided it is incident to a lawful arrest. The law provides: “A person lawfully arrested maybe searched for dangerous weapons or anything which may have been used or constitute proof in the commission of an offense without a search warrant.”

To be valid, the search must have been conducted at about the time of the arrest or immediately thereafter, and only at the place where the suspect was arrested, or the premises or surroundings under his immediate control.

Any evidence obtained during an illegal search (even if it confirms initial suspicion of felonious activity) is considered absolutely inadmissible for any purpose in any proceeding, since it is considered to be the fruit of a poisonous tree.

Stop and Frisk

A warrantless search is allowed if the officers had  probable cause to believe before the search that either the motorist is a law offender, or that they did find the evidence pertaining to the commission of a crime in the vehicle to be searched. The rule for checkpoints is that the inspection of the vehicle should be limited to a visual search. The vehicle itself should not be searched, and its occupants should not be subjected to a body search.

* Seizure of prohibited articles in plain view. The seizure should comply with the following requirements:

(1) A prior valid intrusion based on a valid warrantless arrest, in which the police are legally present in the pursuit of their official duties.

(2) The evidence was inadvertently discovered by the police who had the right to be where they are.

(3) The evidence must be immediately apparent.

(4) Plain view justified mere seizure of evidence without further search.