up 2009 remedial law (criminal procedure)

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CRIMINAL PROCEDURE

Chapter 1: CRIMINALJURISDICTIONA. DEFINITIONB. HOW DETERMINEDC. ESTOPPEL AND LACHES TO

DENY JURISDICTIOND. JURISDICTION OF COURTS

1. Municipal Trial Courts2. Regional Trial Courts3. Sandiganbayan4. Military Courts

Chapter 2: RIGHTS OF THEACCUSEDA. TO BE PRESUMED INNOCENTB. TO BE INFORMED OF THE

NATURE AND CAUSE OFACCUSATION AGAINST HIM

C. TO BE PRESENT AND DEFENDIN PERSON AND BY COUNSEL ATEVERY STAGE OF THEPROCEEDINGS

D. TO TESTIFY IN HIS OWNBEHALF

E. TO BE EXEMPT FROM BEINGCOMPELLED TO BE A WITNESSAGAINST HIMSELF

F. TO CONFRONT AND CROSS-EXAMINE WITNESSES AGAINSTHIM AT THE TRIAL

G. TO HAVE COMPULSORYPROCESS ISSUED TO SECUREATTENDANCE OF WITNESSESAND PRODUCTION OF OTHEREVIDENCE IN HIS BEHALF

H. TO HAVE A SPEEDY, IMPARTIALAND PUBLIC TRIAL

I. TO HAVE THE RIGHT OFAPPEAL IN ALL CASES ALLOWEDAND IN THE MANNERPRESCRIBED BY LAW

Chapter 3: SEARCH AND SEIZUREA. CONCEPT

1. Definition2. Nature of a Search Warrant3. Constitutional safeguard

against unreasonable searchand seizures

4. Constitutional protection isagainst public officers acts, notprivate persons

B. PROCEDURE1. Application2. Exception: Malaloan v. CA

(1994) - subject to R126, Sec. 13. Search guidelines under

Circular No. 19, s. 1987

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4. Substance of application5. Generally6. Issuance and form of search

warrant7. Personal Property to be Seized8. Validity of search warrant9. Service of search warrant10. Search of house, room, or

premise, to be made, inpresence of two witnesses

11. Time of making search12. Post-service13. Delivery of property and

inventory thereof to courtC. WARRANTLESS SEARCHES

1. When allowed2. Probable cause justifying

warrantless arrest andwarrantless search

D. REMEDIES OF PARTY SUBJECTOF SEARCH WARRANT1. Who may avail of remedies2. Remedies3. Effect of failure to quash

warrant4. Effects of illegal search5. Waiver of immunity against

unreasonable searches andseizure [Pasion v. Locsin(1938)]

6. Liability for illegal searchwarrant

E. CIVIL LIABILITY

Chapter 4: ARRESTA. CONCEPTB. PROCEDURE

1. Constitutional requirements onarrest

2. Arrest with warrant3. Arrest without warrant4. Illegal arrest5. Right of attorney or relative to

visit arrested personC. OTHER FORMS OF ARREST

WARRANTS1. Human Security Act, RA No.

93722. BID arrest by virtue of an order

of deportationD. CUSTODIAL INVESTIGATION

1. What is embraced in custodialinvestigations; what is not

2. Custodial rights of the accused3. Consequences of violation of

custodial rights

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Chapter 5: PROSECUTION OFOFFENSESA. INSTITUTION OF CRIMINAL

ACTIONS1. In general2. Prosecution3. Effects4. Complaint or information5. Place where action is to be

instituted6. Intervention of offended party

B. PROSECUTION OF CIVIL ACTION1. In general2. Civil liability3. Suspension of civil action4. Effect of death of accused on

civil action5. Effect of judgment in civil case

on criminal action

Chapter 6: PRELIMINARYINVESTIGATIONA. GENERAL PRINCIPLES

1. Definition2. When required3. Nature4. Purpose

B. RIGHT TO PRELIMINARYINVESTIGATION

C. WHO MAY CONDUCT PI1. Generally2. COMELEC, when vested3. Ombudsman

D. PROCEDURE to be observed byprosecutors in PI1. Filing of the complaint2. Action of the investigating

officer3. Defendants counter-affidavit4. Hearing5. Resolution6. Review7. Filing of information/complaint

in courtE. RIGHTS OF RESPONDENT IN A

PIF. DUTIES OF INVESTIGATING

FISCAL OR PROSECUTOR1. Determine WON there is

probable cause2. Must include all persons guilty

of offense3. Prosecutor cannot file

information without priorapproval of superior

4. Appeal to Secretary of JusticeG. WHEN WARRANT OF ARREST

MAY ISSUEH. WHEN ACCUSED LAWFULLY

ARRESTED WITHOUT WARRANT

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I. RECORD OF PIJ. CASES NOT REQUIRING

PRELIMINARY INVESTIGATIONNOR COVERED BY RULE ONSUMMARY PROCEDURE

Chapter 7: PRELIMINARYREMEDIESA. BAIL

1. Definition2. Purpose3. Conditions of bail4. Availability of bail5. Amount of bail6. Kinds of bail7. Procedural matters in bail8. Arrest of accused out on bail9. Bail required of witnesses

B. MOTION TO QUASH1. Defnition2. Time to file MTQ3. Form and contents4. Grounds5. Procedure upon filing6. Effect of order granting MTQ7. Failure to assert grounds8. Provisional dismissal

C. PROVISIONAL REMEDIES INCRIMINAL CASES1. Availability2. Attachment

Chapter 8: PRE-TRIALA. PRE-TRIAL CONFERENCE

1. Coverage2. Period3. Purposes

B. PRE-TRAIL AGREEMENTS ANDSUBMISSIONS1. Form2. Effect

C. PRE-TRIAL ORDER1. When issued2. Contents3. Effects

D. NON-APPEARANCE

Chapter 9: ARRAIGNMENTA. IN GENERAL

1. Definition2. Purpose: Procedural due

process3. Four-fold duty of the TC before

arraignment4. Issues that may be raised

before arraignmentB. PROCEDURE

1. Where2. Manner3. Types of plea

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4. Withdrawal of plea5. Suspension of arraignment

Chapter 10: TRIALA. GENERAL PROCEDURE FOR

TRIAL1. Notice and commencement2. Time to prepare for trial3. Trial Proper4. Order of trial

B. SPECIAL PROCEDURES1. Trial of several accused jointly

charged2. Consolidation of trials of

related offenses3. Discharge of an accused to be a

state witness4. Other modes of discharge of the

accused to be a state witness5. The Ombudsmans power to

grant immunity. [Sec. 17, RA6770]

6. Effect of discharge7. Re-opening of trial

C. OTHER PROCEDURAL RULES1. When proper offense is not

charged2. Duties of counsels and

prosecutors3. Appointment of acting

prosecutor4. Exclusion of the public from

the courtroom5. Archiving of criminal cases6. Inhibition of judges7. Desistance by the offended

party

Chapter 11: JUDGMENTA. IN GENERAL

1. Requisites2. Conviction3. Acquittal

B. PROMULGATION OF JUDGMENT1. Promulgation where judge is

absent2. Presence of accused required;

exceptionC. MODIFICATION OF JUDGMENT

1. When judgment on convictionbecomes final

2. When judgment of acquittalbecomes final

D. ENTRY OF JUDGMENT1. Manner2. Formalities required3. Existing provisions governing

suspension of sentence

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Chapter 12: POST-JUDGMENTREMEDIESA. MOTION FOR

RECONSIDERATION OR NEWTRIAL (MFR/MNT)1. Definition2. Grounds for MNT3. Ground for MFR4. Procedure5. Effect of granting MNT/MFR

B. ORDINARY APPEAL1. Definition2. Final judgment or order3. Appellate jurisdiction of the CA4. Modes of Review5. Procedure6. Jurisdiction of the TC prior to

expiration of period to appealC. PROCEDURE IN THE DIFFERENT

COURTS1. Procedure in the MTC (incl.

Rule on Summary Procedure)2. Procedure in the CA3. Procedure in the SC

APPENDICESAppendix 1: AVAILABILITY OF BAILAppendix 2: MODES OF REVIEW

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REVIEWER IN REMEDIAL LAW Chapter 1: Criminal Jurisdiction

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Criminal ProcedureFACULTY-STUDENT EDITORIAL BOARD AND LECTURES COMMITTEE

Prof. Theodore O. TeFACULTY EDITOR

ACADEMICS COMMITTEE

Samantha PoblacionDIRECTOR FOR ACADEMICS

EDITOR-IN-CHIEF

Rania JoyaDEPUTY DIRECTOR FOR ACADEMICS

LAYOUT HEAD

REMEDIAL LAWBryan San Juan

SUBJECT EDITOR

CRIMINAL PROCEDURE

Bernice MendozaLEAD WRITER

Kat FabellonDianne Patawaran

Ria CruzRaissa VillanuevaZann Pacificador

WRITERS

LECTURESEdel Cruz

HEAD

--------

Kae GuerreroPRINTING AND DISTRIBUTION

--------

Leo ZuluetaLOGO, COVER AND TEMPLATE DESIGN

Chapter 1: Criminal Jurisdiction

A. DEFINITIONB. HOW DETERMINEDC. ESTOPPEL AND LACHES TO DENY

JURISDICTIOND. JURISDICTION OF COURTS

1. Municipal Trial Courts2. Regional Trial Courts

a. Regular courtsb. Family courtsc. Katarungang Pambarangay

3. Sandiganbayan4. Military Courts

A. DEFINITION

Authority of the court to hear and try aparticular offense and to impose thepunishment provided by law.

Jurisdiction is vested in the court, notin the judges. [People v. Gorospe (1984)]

Inquiries into a courts jurisdiction:WON the court has jurisdiction over the

offense by virtue of the imposablepenalty and its nature;

It is defined by law; determined by theextent of the penalty which lawimposes based on the facts asrecited in the complaint/informationconstitutive of the offense charged.

WON the action has been filed withinthe territorial jurisdiction of thecourt.o Refers to venue or the place

where the case is to be tried. Theaction should be instituted andtried in the municipality orterritory where offense has beencommitted or where any one ofthe essential ingredients thereoftook place.

General rule: The courts jurisdiction totry a criminal action is to be determinedby the law at the time of the institutionof the action. Succeeding legislationplacing jurisdiction in another tribunalwill not affect jurisdiction obtained by acourt.Exception: Where the succeeding

statute expressly provides, or isconstrued that it is intended tooperate to actions pending before itsenactment,

in which case the court where thecriminal action is pending is oustedof jurisdiction and the pendingaction will have to be transferred tothe other tribunal, which willcontinue the proceeding.

B. HOW DETERMINED

Determined by the allegations of thecomplaint or information.

By examination of thecomplaint/information to ascertain thatthe facts set out and punishment fallunder jurisdiction of court. [People v.Ocaya (1978)]

Jurisdiction over Complex Crimes (2003Bar): lodged with the court havingjurisdiction to impose the maximumand most serious penalty imposable onan offense forming part of the complexcrime. [Cuyos v. Hon. Garcia (1988)]

C. ESTOPPEL AND LACHES TO DENYJURISDICTION

General rule: The issue of jurisdictionmay be raised at any stage of theproceedings, even on appeal, and is not


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lost by waiver or by estoppel (J. Nachurain Figueroa vs. People, July 14, 2008)Exception: Estoppel by laches, to bar a

litigant from asserting the courtsabsence or lack of jurisdiction, onlysupervenes in exceptional casessimilar to the factual milieu of Tijamv. Sibonghanoy. Estoppel being inthe nature of forefeiture is notfavored by law. (Figueroa vs.People)s

D. JURISDICTION OF COURTS

1. MTC Exclusive original jurisdiction over all

violations of city/municipal ordinancescommitted within their respectiveterritorial jurisdiction. [Sec. 32 BP 129]

Exclusive original jurisdiction over alloffenses punishable with imprisonmentnot exceeding 6 years irrespective of theamount of fine, and regardless of otherimposable accessory or other penalties,including the civil liability arising fromsuch offenses or predicated thereon,irrespective of kind, nature, value, oramount thereof.

Provided, however, that in offensesinvolving damage to property throughcriminal negligence they shall haveexclusive original jurisdiction thereof.[Sec. 32, BP 129]Exception: Cases falling within the

exclusive original jurisdiction ofRTCs and of the Sandiganbayan.[Sec. 32, BP 129]

Cases classified under the RevisedRules on Summary Proceedings: [SCResolution, October 15, 1991]Violations of traffic laws/rules/

regulations;Violations of rental law;Cases where the penalty prescribed by

law for the offense charged isimprisonment not exceeding 6months, or a fine not exceedingP1,000, or both, irrespective of otherimposable penalties, accessory orotherwise, or of the civil liabilityarising therefrom:

Provided, however, that in offensesinvolving damage to propertythrough criminal negligence, thisRule shall govern where theimposable fine does not exceedP10,000.

Exception: a criminal case falling underthe aforementioned list where theoffense charged is necessarily

related to another criminal casesubject to the ordinary procedure.

2. RTCa. Regular courts

RTCs shall exercise exclusive originaljurisdiction in all criminal cases notwithin the exclusive jurisdiction ofany court/tribunal/body. [Sec. 20,BP 129] Exception: Those now falling

under the exclusive andconcurrent jurisdiction of theSandiganbayan, which shallhereafter be exclusively takencognizance of by the latter. [Sec.20, BP 129]

SC may designate certain RTC branchesto handle exclusively criminal cases,juvenile and domestic relations cases,agrarian cases, urban land reform caseswhich do not fall under the jurisdictionof quasi-judicial bodies and agencies,and/or such other special cases as theSC may determine. [Sec. 23, BP 129]

Criminal cases where 1 or more of theaccused is below 18 y/o but not lessthan 9 y/o, or where 1 or more of thevictims is a minor at the time of thecommission of the offense. [Sec. 5, RA8369]

b. Family courts Criminal cases where one or more of the

accused is below eighteen (18) years ofage but not less than fifteen (15) years(amended by implication of the JuvenileJustice Law), or where one or more ofthe victims is a minor at the time of thecommission of the offense: provided,that if the minor is found guilty, thecourt shall promulgate sentence andascertain any civil liability which theaccused may have incurred.

The sentence, however, shall besuspended without need of applicationpursuant to presidential Decree No.603, the Child and Youth Welfare Code.Cases against minors cognizable under

the Dangerous Drugs Act, asamended.

Violations of Republic Act No. 7610, theChild Abuse Act.

Cases of domestic violence againstwomen and children. If an actcommitted against women andchildren likewise constitute acriminal offense, the accused orbatterer shall be subject to criminalproceedings and the corresponding


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penalties. (Rep. Act No. 8369,Family Courts Act of 1997)

c. Katarungang Pambarangay General Rule: The lupon of each

barangay shall have authority to bringtogether the parties actually residing inthe same city or municipality foramicable settlement of all disputes.

ExceptionsOffenses punishable by imprisonment

exceeding one (1) year or a fineexceeding Five thousand pesos(P5,000.00);

Offenses where there is no privateoffended party;

3. SANDIGANBAYAN General rule: The offense must be

intimately connected with the office ofthe offender and perpetuated while hewas in the performance of officialfunctions. It has also been held to bethe case if it cannot exist without theoffice, or if the office is a constituentelement of the crime as defined in thestatute

Exception: Election offenses, even ifcommitted by public officers with grade27 or higher in relation to their office,shall fall under the RTCs exclusiveoriginal jurisdiction. [Sec. 268, OmnibusElection Code]

Exclusive jurisdiction of SandiganbayanThose expressly enumerated in PD

1606, as amended by RA 8249 -Violations of RA 3019 Anti-Graftand Corrupt Practices Act, RA 1379,Chapter II, Section 2, Title VII, BookII of the RPC

Officials enumerated are the following:o Officials of the executive branch

occupying the positions ofregional director and higher,otherwise classified as Grade '27'and higher, of the Compensationand Position Classification Act of1989 (RA 6758)

o Members of Congress andofficials thereof classified asGrade'27'and up under theCompensation and PositionClassification Act of 1989

o Members of the judiciarywithout prejudice to theprovisions of the Constitution

o Chairmen and members ofConstitutional Commissions,without prejudice to theprovisions of the Constitution

Offenses committed in relation to publicofficeSandiganbayan has exclusive original

jurisdiction over Other offenses orfelonies whether simple orcomplexed with other crimescommitted by public officials andemployees in relation to their office

Requisites that must concur if theoffense is not 3019, 1379, or articles210-212 RPC:o accused is any one of the public

officials enumerated in subsec.(a) of Sec. 4 of Ra 8249, grade 27or higher

o accused commits any otheroffense or felony, than thosespecified in subsec. (a) whethersimple or complexed with othercrimes; and

o offender commits such otheroffense or felony in relation tohis office. Last element must be alleged

in information. If not, it willfall under jurisdiction ofordinary courts and notSandiganbayan

4. MILITARY COURTS General rule: Ordinary courts will have

jurisdiction over cases involvingmembers of the armed forces, and otherpersons subject to military law,including members of the CitizensArmed Forces Geographical Units whocommits crimes under the RPC orspecial laws, regardless of who the co-accused or victims are.

Exception: When, as determined by theordinary court during arraignment, theoffense is service-oriented, then it willbe tried by the court martial. Provided:the President may, in the interest ofjustice, order/direct at any time beforearraignment that any suchcrimes/offenses be tried by the propercivil courts.

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Chapter 2: Rights of the Accused[RULE 115; SEE COMPARATIVE TABLEFOR RELEVANT PROVISIONS FROM THE1987 CONSTITUTION, RA 7438, ANDTHE ROC]

A. TO BE PRESUMED INNOCENTB. TO BE INFORMED OF THE NATURE AND

CAUSE OF ACCUSATION AGAINST HIMC. TO BE PRESENT AND DEFEND IN

PERSON AND BY COUNSEL AT EVERYSTAGE OF THE PROCEEDINGS

D. TO TESTIFY IN HIS OWN BEHALF;E. TO BE EXEMPT FROM BEING

COMPELLED TO BE A WITNESS AGAINSTHIMSELF (2005 BAR);

F. TO CONFRONT AND CROSS-EXAMINEWITNESSES AGAINST HIM AT THETRIAL;

G. TO HAVE COMPULSORY PROCESSISSUED TO SECURE ATTENDANCE OFWITNESSES AND PRODUCTION OFOTHER EVIDENCE IN HIS BEHALF.

H. TO HAVE A SPEEDY, IMPARTIAL ANDPUBLIC TRIAL;

I. TO HAVE THE RIGHT OF APPEAL IN ALLCASES ALLOWED AND IN THE MANNERPRESCRIBED BY LAW.

A. TO BE PRESUMED INNOCENT;

Until contrary is proved beyondreasonable doubt

Accusation is not synonymous withguilt. [People v. Dramayo (1971)]

B. TO BE INFORMED OF THENATURE AND CAUSE OFACCUSATION AGAINST HIM;

Offense must be clearly charged in theinformation. [People v. Ortega (1997)]

Charge must be set forth with sufficientparticularity which will enable him tointelligently prepare his defense.[Balitaan v. CFI of Batangas (1982)]

The pPurpose is served by arraignment.[Borja v. Mendoza (1977)]

C. TO BE PRESENT AND DEFEND INPERSON AND BY COUNSEL ATEVERY STAGE OF THEPROCEEDINGS;

RIGHT TO BE PRESENT; This right may be waived. However,

presence is required:a. For purposes of identification;b. At arraignment; [Rule 116, Sec. 1(b)]c. At the promulgation of judgment;

Exception: If the conviction is for alight offense. [Rule 120, Sec. 6]

Trial in absentia (1998 Bar): Requisites: [Parada v. Veneracion

(1997)]a. Prior arraignment;b. Proper notice of the trial;c. Failure to appear is unjustifiable.

Effects: Waiver of right to be present,right to present evidence and rightto cross-examine witnesses.[Gimenez v. Nazareno (1988)]

Note: This doctrine should be re-examined because the rights waived aredistinct rights guaranteed by theConstitution. [Pamaran]

RIGHT TO COUNSEL;It means reasonably effective legal

assistance. [Gideon v. Wainright(1963)]

It is absolute and may be invoked at alltimes, even on appeal. [Telan v. CA(1991)]

Duty to appoint counsel de oficio ismandatory only at the time ofarraignment. [Sayson v. People(1988)]

Violation of this right entitles theaccused to new trial. [People v.Serzo (1997)]

It may be waived, so long as notcontrary to law, public order, publicpolicy, morals or good customs.

The waiver must be unequivocally,knowingly and intelligently made[People v. Nicandro (1968)]

RIGHT TO DEFEND IN PERSON.Only when it sufficiently appears that

he can protect his rights without theassistance of counsel

D. TO TESTIFY IN HIS OWN BEHALF;

But subject to cross-examination onany matter cited in his directexamination.

E. TO BE EXEMPT FROM BEINGCOMPELLED TO BE A WITNESSAGAINST HIMSELF (2005 BAR);

Compulsion includes not only violencebut also moral coercion. [Chavez v. CA(1968)]

Covers only testimonial compulsion andproduction of incriminating documents.

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It does not include examination of hisbody as evidence when it may bematerial. [US v. Tan Teng (1912)]

If he testified as a witness in his ownbehalf, he cannot refuse to answerquestions on cross-examination on theground that the answer wouldincriminate himself.

The questions should be on mattersrelated to his direct examination.[People v. Judge Ayson (1989)]

F. TO CONFRONT AND CROSS-EXAMINE WITNESSES AGAINSTHIM AT THE TRIAL;

This right is waived by non-appearance.[Carredo v. People (1990)]

Identification by a witness of theaccused is inadmissible if the accusedhad no opportunity to confront witness.[People v. Lavarias (1968)]

G. TO HAVE COMPULSORY PROCESSISSUED TO SECUREATTENDANCE OF WITNESSESAND PRODUCTION OF OTHEREVIDENCE IN HIS BEHALF.

Trial court should not delegate to theaccused the responsibility of getting hiswitnesses.

If a subpoena is issued and the witnessfailed to appear, the court should orderthe arrest of the witness if necessary.[People v. Montejo (1967)]

H. TO HAVE A SPEEDY, IMPARTIALAND PUBLIC TRIAL;

Remedy against denial of right:a) MTD;b) Dismissal subject to rules on double

jeopardy. [SC Circular 38-98]c) Mandamus. [Vide Abadia v. CA

(1994)] This right may be waived. Right to public trial not is violated

where trial was held in chambers[Garcia v. Domingo (1973)] or in theBilibid prison [US v. Mercado (1905)], ifaccused failed to object and as long ashe could have his friends, relatives andcounsel present.

Trial by publicity is not per se asprejudicial to the right of an accused tofair trial. It is prejudicial only if thereare allegations and proof that the judgeshave been unduly influenced, not

simply that they might be, by thebarrage of publicity. [People v.Teehankee (1995)]

I. TO HAVE THE RIGHT OF APPEALIN ALL CASES ALLOWED AND INTHE MANNER PRESCRIBED BYLAW.

a. Right to appeal is a statutory right andthe requirements must be compliedwith; otherwise, the right is lost. [Peoplev. Sabellano (1991)]

b. If accused escapes from confinement,appeal is not allowed unless hevoluntarily surrenders within period forappeal. [People v. Omar (1991)]

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Chapter 3: Search and Seizure

A. CONCEPT1. DEFINITION2. NATURE OF A SEARCH WARRANT3. CONSTITUTIONAL SAFEGUARD

AGAINST UNREASONABLE SEARCHAND SEIZURES

4. CONSTITUTIONAL PROTECTION ISAGAINST PUBLIC OFFICERS ACTS,NOT PRIVATE PERSONS

B. PROCEDURE1. APPLICATION2. EXCEPTION: MALALOAN V. CA (1994)

SUBJECT TO R126, SEC. 13. SEARCH GUIDELINES UNDER

CIRCULAR NO. 19, S. 19874. SUBSTANCE OF APPLICATION5. GENERALLY6. ISSUANCE AND FORM OF SEARCH

WARRANT7. PERSONAL PROPERTY TO BE SEIZED8. VALIDITY OF SEARCH WARRANT9. SERVICE OF SEARCH WARRANT10. SEARCH OF HOUSE, ROOM, OR

PREMISE, TO BE MADE, IN PRESENCEOF TWO WITNESSES

11. TIME OF MAKING SEARCH12. POST-SERVICE13. DELIVERY OF PROPERTY AND

INVENTORY THEREOF TO COURTC. WARRANTLESS SEARCHES

1. WHEN ALLOWED2. PROBABLE CAUSE JUSTIFYING

WARRANTLESS ARREST ANDWARRANTLESS SEARCH

D. REMEDIES OF PARTY SUBJECT OFSEARCH WARRANT1. WHO MAY AVAIL OF REMEDIES2. REMEDIES3. EFFECT OF FAILURE TO QUASH

WARRANT4. EFFECTS OF ILLEGAL SEARCH5. WAIVER OF IMMUNITY AGAINST

UNREASONABLE SEARCHES ANDSEIZURE [PASION V. LOCSIN (1938)]

6. LIABILITY FOR ILLEGAL SEARCHWARRANT

E. CIVIL LIABILITY

A. CONCEPT

1. Definition

It is an order in writing; issued in thename of the People of the Philippines;signed by a judge; and directed to apeace officer, commanding him tosearch for personal property describedin the warrant and bring it before thecourt. [Rule 126, Sec. 1]

if it is not written: it is void. If it is without the judges signature: it

is fatally defective.

2. Nature of a Search Warrant

A search warrant is in the nature of acriminal process akin to a writ ofdiscovery

It is a special and peculiar remedy,drastic in its name, and made necessarybecause of a public necessity

3. Constitutional safeguardagainst unreasonablesearch and seizures

Rule 126 is an implementation of Art. 3,Sec. 2 of the Constitution.The right of the people to be secure in

theirpersons/houses/papers/effectsagainst unreasonable searches andseizures of whatever nature or forany purpose shall not be violated.

No SW or warrant of arrest shall issueexcept upon PC to be determinedpersonally by the judge after theexamination under oath/affirmationof the complaint and the witness hemay produce, and particularlydescribing the place to be searched,and the things/persons to be seized.[Art. 3, Sec. 2, Consti]

The privacy of communication andcorrespondence shall be inviolableexcept upon lawful order of thecourt, or when public safety/orderrequires otherwise, as prescribed bylaw. [Art. 3, Sec. 3, Consti]

Rationale:What is sought to be guarded is mans

prerogative to choose who is allowedentry to his residence. His privacymust not be disturbed by thegovernment except in cases ofoverriding social need, and thenonly under the stringent proceduralsafeguards. [Villanueva v. Querubin(1972)]

A mans house is his castle. However,he may not use his castle as acitadel for aggression against hisneighbors, nor can he within itswalls create such disorders as toaffect their peace. [US v. Vallejo(1908)]

Thus, the government has right tosearch and seize despite the individualsright to privacy. The constitutionalguarantee is not a blanket prohibitionagainst all searches and seizures. Itoperates only against unreasonablesearches and seizures.


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This constitutional guarantee is NOT ablanket prohibition against ALLsearches and seizures. It operates onlyagainst unreasonable searches andseizures.

Art. 3 Sec. 2 protects not only thosewho are innocent but also those whoappear to be guilty but are neverthelessto be presumed innocent until thecontrary is proved.

4. Constitutional protection isagainst public officers acts, notprivate persons

People v. Marti (1991); also People v.Bangcarawan (2002): Search andseizure clauses are restraints upon thegovernment and its agents, not uponprivate individuals.

The Fourth amendment and the caselaw applying it do not require exclusionof evidence obtained through a searchby a private person. Rather, theamendment only proscribes governmentactions. In the case at bar, the evidencewas primarily discovered by a privateperson, acting in a private capacity andwithout the intervention andparticipation of state authorities.

The private person made an inspectionas part of a reasonable standardoperating procedure/a precautionarymeasure before delivery of packages tothe Bureau of Customs. The merepresence of the NBI agents did notconvert the reasonable search into awarrantless search and seizureproscribed by the constitution.

General rule: Search of property isunreasonable unless it has beenauthorized by a valid search warrant.

Exceptions: Warrantless searches.

B. PROCEDURE

1. Application

Where filedAny court within whose territorial

jurisdiction a crime was committed.For compelling reasons stated in the

application: If the place of the commission of

the crime is known, any courtwithin the judicial region wherethe crime was committed.

Any court within the judicialregion where the warrant shallbe enforced.

However, if the criminal action hasalready been filed, the applicationshall only be made in the courtwhere the criminal action is pending

2. Exception: Malaloan v. CA (1994)subject to R126, Sec. 1

Malaloan Ruling: if a case has not yetbeen filed, it may be filed in a court witha territorial jurisdiction other than thatwhere the illegal articles sought to beseized are located.

This is aside from the considerationthat a criminal action may be filed indifferent venues under the rules forcontinuing crimes, or where differenttrial courts have concurrent originaljurisdiction over the same criminaloffense.

Malaloan ruling may be applicable:when the crime is found to have been

committed in a particular placeWITHIN the judicial region

where a particular court, by reason ofits territorial area, has jurisdiction

and where prosecutor, who filed thecomplaint or information in saidcourt, has territorial jurisdictiondifferent from the court within thesame judicial region which actuallyissued the warrant

3. Search guidelines under CircularNo. 19, s. 1987

All applications for search warrantsrelating to violations of the Anti-Subversion Act, crimes against publicorder as defined in the Revised PenalCode, as amended, illegal possession offirearms and/or ammunition andviolations of the Dangerous Drugs Act of1972, as amended, shall no longer beraffled and shall immediately be takencognizance of and acted upon by theExecutive Judge of the Regional TrialCourt, Metropolitan Trial Court, andMunicipal Trial Court under whosejurisdiction the place to be searched islocated.

In the absence of the Executive Judge,the Vice-Executive Judge shall takecognizance of and personally act on thesame. In the absence of the ExecutiveJudge or Vice-Executive Judge, theapplication may be taken cognizance of


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and acted upon by any judge of theCourt where the application is filed.

Applications filed after office hours,during Saturdays, Sundays andholidays, shall likewise be takencognizance of and acted upon by anyjudge of the court having jurisdiction ofthe place to be searched, but in suchcases the applicant shall certify andstate the facts under oath, to thesatisfaction of the judge, and itsissuance is urgent.

Any judge acting on such applicationshall immediately and without delaypersonally conduct the examination ofthe applicant and his witnesses toprevent the possible leakage ofinformation. He shall observe theprocedures, safeguards, and guidelinesfor the issuance of search warrantsprovided for in this Court'sAdministrative Circular No. 13, datedOctober 1, 1985.

4. Substance of application

Requisites for issuing search warrantA SW shall not issue except

a. Upon probable cause inconnection with one specificoffense

b. To be determined personally bythe judge

c. after examination under oath oraffirmation of the complainantand the witness he may produce

d. particularly describing the placeto be searched and the things tobe seized which may beanywhere in the Philippines.[Rule 126, Sec. 4]

Absence of requisites will causenullification of SW

If the judge is satisfied of the existenceof facts upon which the application isbased or that there is probable cause(PC) to believe that they exist, he shallissue the SW. [Rule 126, Sec. 6]

In issuing or not issuing SWs, judgesact according to the evidence presentedto them, and orders of the judge on thematter are not final and do notconstitute res judicata.

Denial of SW on ground of insufficiencyof deposition is not a bar to furtherproceedings.

Issuance of SW is not res judicata as tothe right to the SW. [Cruz v. Dinglasan(1949)]

Courts have declared invalid SW thatdid not comply with these requisites.[Lim v. de Leon (1975)]

A courts disregard for the requirementsconstitutes GAD which may beremedied by certiorari under Rule 65.

5. Generally

Issued upon probable causeProbable cause such facts and

circumstances which would lead areasonably discreet and prudentman to believe that an offense hasbeen committed, and that objectssought in connection with theoffense are in the place sought to besearched.

This probable cause must be shown tobe within the personal knowledge ofthe complainant or the witnesses hemay produce and not based on merehearsay.

Determined by judge himselfin the form of searching questions and

answers, in writing and under oath,the complainant and the witnesseshe may produce on facts personallyknown to them and attach to therecord their sworn statements,together with the affidavitssubmitted. [Rule 126, Sec. 5]

SEARCHING QUESTIONS ANDANSWERS:o Such questions as have the

tendency to show thecommission of a crime andperpetrator thereof. [Luna v.Plaza (1968)]

o In search cases, the applicationmust be supported bysubstantial evidence: that theitems sought are in fact seizableby virtue of being connected withcriminal activity and the itemswill be found in the place to besearched.

o A search warrant issued by ajudge who did not ask searchingquestions but only leading onesand in a general manner isinvalid.

Judge must examine under oath oraffirmation of the complainant andthe witness he may producein the form of searching questions and

answers, in writing and under oath,


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the complainant and the witnesseshe may produce on facts personallyknown to them and attach to therecord their sworn statements,together with the affidavitssubmitted. [Rule 126, Sec. 5]

A warrant issued to an applicantwithout personal knowledge is void.

Examination under oath:o OATH Includes any form of

attestation by which a partysignifies that he is bound inconscience to perform an actfaithfully and truthfully.

o The oath required must refer tothe truth of facts within thepersonal knowledge of thepetitioner/witness, because thepurpose thereof is to convincethe committing magistrate of theexistence of PC. [Alvarez v. CFI(1937)]

o Mere affidavits of thecomplainant/witnesses are notsufficient. The law requiresdepositions. [Prudente v. JudgeDayrit (1989)]

INSTANCES OF INVALID EXAMINATIONThe complainants application for SW

and the witness printed-formdeposition were subscribed andsworn to before the judge, but thelatter did not ask either of the twoany questions, the answer to whichcould possibly be the basis fordetermining WON there was PC. Itcannot be said that the judgepersonally conducted the personalexamination required. [Bache v. Ruiz(1971)]o In reading of the TSN of the

deposition of the applicant andhis witnesses taken by the clerkof court, the judge was not ableto observe the deponentsdemeanor nor to propoundinitial and follow-up questions.[Bache v. Ruiz (1971)]

o Where judge issuing the SWacted solely on the basis of theaffidavits of the complainant andhis witnesses, which were swornto before another judge, withoutpersonally asking the witnessesquestions. [Doce v. CFI (1968)]

INSTANCES OF VALID EXAMINATIONThe validity of the SW and the affidavits

is not impaired by the fact that they

are pre-typewritten by lawenforcement agents, as long as theyare sworn and subscribed to beforethe judge.

In Luna v. Plaza (1974) (regardingwarrants of arrests, but applicableby analogy), the SC said that the lawis complied with where the judgeadopts as his own personalexamination the questions asked bythe police investigator, as appearingin the written sworn statements,which the judge read again to thewitnesses, whether said answerswere his, and whether said answerswere true, to which the witnessesreplied in the affirmative, therebeing no prohibition to the contrary.

Warrant issued must particularlydescribe the place to be searchedand the persons to be seized

DESCRIPTION OF PLACEDescription of place to be searched is

sufficient if the officer with the SWcan, with reasonable efforts,ascertain and identify the placeintended. [People v. Veloso (1925)]

An apparent typographical error will notnecessarily invalidate the SW.[Burgos v. Chief of Staff (1984)]

TEST OF PARTICULARITYThat the executing officers prior

knowledge as to the place intendedin the SW is relevant.

This would seem especially true wherethe executing officer is the affiant onwhose affidavit the SW had issued,and when he knows that the judgewho issued the SW intended thebuilding described in the affidavit.

And it has also been said that theexecuting officer may look to theaffidavit in the official court file toresolve an ambiguity in the SW as tothe place to be searched. [Burgos v.Chief of Staff (1984)]

ParticularlySearch warrant must be for only one

specific offenseo General rule: The offense alleged

must be specific as to enable thejudge to find the existence of aPC.

o Definite provisions of theallegedly violated laws must bereferred to.


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o No SW shall issue for more thanone specific offense. [RPC]Otherwise, warrant is void.

o The fact that the SW does notspecify the specific offense doesnot render it a general warrant.What is important is theapplication for SW states thespecific offense deemed to havebeen violated by the personagainst whom the searchwarrant is addressed.

o Scatter-shot warrant onewhich allows search for morethan one specific offense and isnull and void, violative of theConstitution.

o A SW issued for an illegal trafficof narcotics and contraband isfatally defective. The latter is ageneric term covering all goodsexported from or imported in thecountry contrary to applicablestatutes. Necessarily then, morethan one offense could arisefrom the activity designated asillegal traffic of narcotics andcontraband. [Castro v. Pabalan(1976)]

o Exception: In [People v. Marcos(1990)], the SW was declaredvalid despite lack of mention ofspecific offense because theapplication stated that theowner of the grocery storeagainst whom warrant wasdirected, had in his possessionunadulterated stocks in violationof the provisions Art. 188 and199, RPC, which are closelyallied articles as the punishableacts defined in one of them canbe considered as including or isnecessarily included in theother.

Things to be seized must beparticularly describedThe SW must not suffer from generality.

Otherwise, the search and seizure ofthe items in the implementation ofsuch SW is illegal and the itemsseized are inadmissible in evidence.(Section 2 Article 3 sets theconstitutional requirement.)

Personal property only. SW does notissue for seizure of immovableproperties.

Ownership of the property seized isimmaterial. It is sufficient that the

person against whom SW is directedhas control/possession of theproperty. [Burgos v. Chief of Staff(1984)]

Purpose: To limit the things to beseized to those (and only those)particularly described in the SW,leaving the officers no discretionregarding what articles they shallseize, to the end that unreasonablesearches and seizures may not bemade and that abuses may not becommitted. [Uy Kheytin v. Villareal(1920)]

General rule: Things to be seized mustbe described particularly. GeneralSWs are not allowed.

SWs authorizing the seizure of books ofaccounts and records showing allthe business transactions of certainpersons, regardless of whether thetransactions were legal or illegal, aregeneral warrants prohibited by law.[Stonehill v. Diokno (1967)]

Likewise, a description of things to beseized as subversive documents,propaganda materials, FAs, printingparaphernalia and all othersubversive materials hardlyprovided a definite guideline to theexecuting officers. [Dizon v. Hon.Castro]

And where the language used is too all-embracing as to include all theparaphernalia of petitioner in theoperation of its business, the SW isconstitutionally objectionable[Columbia Pictures v. Flores (1993)]

Exceptions:o But where, by the nature of the

goods to be seized, theirdescription must be rathergeneral, it is not required that atechnical description be given,for this would mean that no SWcould issue. [People v. Rubio(1932)]

o The general description of thedocuments listed in the SW doesnot render the SW void if the SWis severable, and those items notparticularly described may becut off without destroying thewhole SW. [Uy v. BIR (2001)]

6. Issuance and form of searchwarrant

It is an order in writing; issued in thename of the People of the Philippines;


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signed by a judge; and directed to apeace officer, commanding him tosearch for personal property describedin the warrant and bring it before thecourt. [Rule 126, Sec. 1]

A search warrant shall not issue exceptupon probable cause in connection withone specific offense to be determinedpersonally by the judge afterexamination under oath or affirmationof the complainant and the witness hemay produce, and particularlydescribing the place to be searched andthe things to be seized which may beanywhere in the Philippines. [Rule 126,Sec. 4]

If the judge is satisfied of the existenceof facts upon which the application isbased or that there is probable cause tobelieve that they exist, he shall issuethe warrant, which must besubstantially in the form prescribed bythese Rules.[Rule 126, Sec. 6]

SW must be in writing and contain:Name of person against whom it is

directed;Offense for which it was issued;The place to be searched and the

specific things to be seized;A directive to law enforcement officers to

search and seize;And for them to bring in court the

things seized;Signature of the judge issuing it.

7. Personal Property to be Seized

WHAT MAY BE SEIZED [Rule 126, Sec.3]Personal property subject of the offense.Personal property stolen/embezzled and

other proceeds/fruits of the offense.Personal property used or intended to

be used as the means of committingan offense.

8. Validity of search warrant

Period of validity 10 days from itsdate. Thereafter, it shall be void. [Rule126, Sec. 10]

9. Service of search warrant

Right to break door or window to effectsearch

The officer, if refused admittance to theplace of directed search after givingnotice of his purpose and authority,may break open any outer or inner door

or window of a house or any part of ahouse or anything therein to executethe warrant to liberate himself or anyperson lawfully aiding him whenunlawfully detained therein. [Rule 126,Sec. 7]

10. Search of house, room, orpremise, to be made, in presenceof two witnesses

Search of house, room, or premises tobe made in presence of two witnesses. No search of a house, room, or anyother premises shall be made except inthe presence of the lawful occupantthereof or any member of his family orin the absence of the latter, twowitnesses of sufficient age anddiscretion residing in the same locality.[Rule 126, Sec. 8]

11. Time of making search

The warrant must direct that it beserved in the day time, unless theaffidavit asserts that the property is onthe person or in the place ordered to besearched, in which case a direction maybe inserted that it be served at any timeof the day or night. [Rule 126, Sec. 9]

A SW violates Rule 126, Sec. 9 if thetime for making the search is left blank,thus enabling the officers to conductthe search in the evening of theappointed search. [Asian Surety v.Herrera]

Where a search is to be made duringthe night time, the authority forexecuting the same at that time shouldappear in the directive on the face of theSW. [Asian Surety v. Herrera]

12. Post-service

Receipt of property seizedReceipt for the property seized. The

officer seizing the property underthe warrant must give a detailedreceipt for the same to the lawfuloccupant of the premises in whosepresence the search and seizurewere made, or in the absence ofsuch occupant, must, in thepresence of at least two witnesses ofsufficient age and discretionresiding in the same locality, leave areceipt in the place in which hefound the seized property. [Rule 126,Sec. 11]


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How receipt is givenIf lawfuloccupantwaspresent

The officer seizing the propertyunder the SW must give a detailedreceipt for the same to the lawfuloccupant of the premises in whosepresence the search and seizurewere made

If he wasnotpresent

The officer seizing the propertyunder the SW must, in the presenceof at least 2 witnesses of sufficientage and discretion residing in thesame locality, leave a receipt in theplace in which he found the seizedproperty

13. Delivery of property andinventory thereof to court

The officer must forthwith deliver theproperty seized to the judge who issuedthe warrant, together with a trueinventory thereof duly verified underoath [Rule 126, Sec. 12].

Ten (10) days after issuance of thesearch warrant, the issuing judge shallascertain if the return has been made,and if none, shall summon the personto whom the warrant was issued andrequire him to explain why no returnwas made.

If the return has been made, the judgeshall ascertain whether section 11 ofthis Rule has been complied with andshall require that the property seized bedelivered to him. The judge shall see toit that subsection (a) hereof has beencomplied with.

The return on the search warrant shallbe filed and kept by the custodian of thelog book on search warrants who shallenter therein the date of the return, theresult, and other actions of the judge.

A violation of this section shallconstitute contempt of court.

Goods seized remain under the courtscustody until institution of theappropriate criminal action with theproper court. [Tenorio v. CA]

RE: REQUEST OF POLICE DIRECTORGENERALAVELINO I. RAZON FORAUTHORITY TO DELEGATE THE

ENDORSEMENT OF APPLICATION FORSEARCH WARRANT.A.M. No. 08-4-4-SC

The request of P/Dir. Gen. Jesus A. Verzosa forleave to delegate to the Director of theDIDM, PNP, the authority to endorseapplications for search warrants to be filedbefore the RTCs of Manila and Quezon City,is hereby GRANTED in accordance with Sec.12, Chapter V of A.M. No. 03-8-02-SC, as it is

hereinafter amended; and

(2) Sec. 12, Chapter V of the Guidelines on theSelection and Appointment of Executive Judgesand Defining their Powers, Prerogatives andDuties, as embodied in A.M. No. 03-8-02-SC, asapproved by the Court in its Resolution of 27January 2004, is hereby AMENDED to read asfollows:

SEC. 12. Issuance of search warrants in specialcriminal cases by the Regional Trial Courtsof Manila and Quezon City. The ExecutiveJudges and, whenever they are on official leaveof absence or are not physically present in thestation, the Vice-Executive Judges of the RTCsof Manila and Quezon City shall have authorityto act on applications filed by the NationalBureau of Investigation (NBI), the PhilippineNational Police (PNP) and the Anti-Crime TaskForce (ACTAF), for search warrants involvingheinous crimes, illegal gambling, illegalpossession of firearms and ammunitions aswell as violations of the ComprehensiveDangerous Drugs Act of 2002, the IntellectualProperty Code, the Anti-Money Laundering Actof 2001, the Tariff and Customs Code, asamended, and other relevant laws that mayhereafter be enacted by Congress, and includedherein by the Supreme Court.

The applications shall be endorsed by theheads of such agencies or their respectiveduly authorized officials and shallparticularly describe therein the places to besearched and/or the property or things to beseized as prescribed in the Rules of Court. TheExecutive Judges and Vice-Executive Judgesconcerned shall issue the warrants, if justified,which may be served outside the territorialjurisdiction of the said courts.

The Executive Judges and the authorizedJudges shall keep a special docket book listingnames of Judges to whom the applications areassigned, the details of the applications and theresults of the searches and seizures madepursuant to the warrants issued.

This Section shall be an exception to Section 2of Rule 126 of the Rules of Court. (Emphasissupplied.)

This amendment shall apply to all current, aswell as succeeding heads of the PNP, NBI, andACTAF of the AFP. It shall take effect on 20July 2009 and shall be published in anewspaper of general circulation inthe Philippines not later than 5 July 2009.


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C. WARRANTLESS SEARCHES

1. When allowed

Warrantless searches allowed as incidentof lawful arrestGenerally, Rule 126, Sec. 13, as

illustrated by jurisprudenceA person lawfully arrested may be

searched for dangerous weapons oranything which may have been usedor constitute proof in the commissionof an offense without a searchwarrant. [Rule 126, Sec. 13]

The rule assumes that the arrest is legal.If the arrest is illegal, then the searchis illegal and as a result, the thingsseized are inadmissible as evidence.

The search is confined to his person, butas an incident of an arrest, the placeor premises where the arrest wasmade can also be searched without asearch warrant. The extent andreasonableness of the search must bedecided on its own facts andcircumstances. [Nolasco v. Pao(1985); note: the MR was partiallygranted in 1987 and held that thearrest was unlawful, thus the searchwas likewise unlawful.]o An officer making an arrest may

take from the person arrested anymoney or property found uponhis person which was used in thecommission of the crime or wasthe fruit of the crime or whichmight furnish the prisoner withthe means of committing violenceor of escaping or which may beused as evidence in the trial of thecause. [People v. Musa (1997)]

o In People v. Leangsiri (1996), theaccused were lawfully arrested inRm 504 of a hotel and awarrantless search was conductedin Rm 413. The search was held tobe illegal.

o In Chimel v. California (1969), theUS SC said that there is nojustification for searching throughall of the desks drawers or otherclosed and concealed areas in theroom where arrest was made. SWwas needed.

o When one is legally arrested for anoffense, whatever is found in hispossession/control may be seizedand used in evidence against him.[Alvero v. Dizon (1946)]

o Where the arrest was illegal, thensearch and seizure incidentalthereto are also illegal. [People v.Aruta (1998)]

o Where a search is firstundertaken, and an arrest waseffected based on evidenceproduced by such search, bothsearch and arrest are illegal. [Luiv. Matillano (2004)]

Plain view doctrine (2008 Bar)Rationale: Authorities do not consider a

mere observation of what is in plainview, a search.

Thus, objects falling in the plain view of apolice officer who has a right to be inthe position to have that view are notproducts of a search, may be seizedand may be introduced in evidence.[Harris v. US (1968)]

Requisites: [People v. Valdez (1999)]o A prior valid intrusion based on

the valid warrantless arrest inwhich the police are legallypresent in the pursuit of theirofficial duties;

o Evidence was inadvertentlydiscovered by the police who havea right to be where they are;

o Evidence must be immediatelyapparent;

o Plain view justified mere seizure ofevidence without further search.

Limitations: [People v. Musa (1993)]o It may not be used to launch

unbridled searches andindiscriminate seizures.

o does not extend to a generalexploratory search made solely tofind evidence of defendants guilt.

o The doctrine is usually appliedwhere a police officer is notsearching for evidence against theaccused, but nonethelessinadvertently comes across anincriminating object.

o Even if an object is in plain view,before it can be seized without aSW, its incriminating nature mustfirst be apparent.

Where police officers are on the premisespursuant to a valid consent to asearch, an item falling into their plainview may properly be seized even ifthe item is not connected with theirpurpose in entering.

Search of moving vehicleRationale: Peace officers may lawfully

conduct searches of moving vehicleswithout need of a warrant as it isimpracticable to secure a judicialwarrant before searching a vehiclesince it can be quickly moved out ofthe locality or jurisdiction in whichthe warrant may be sought.


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However, these searches would be limitedto visual inspection and the vehiclesor their occupants cannot besubjected to physical or bodysearches, except where there isprobable cause to believe that theoccupant is a law offender or thecontents of the vehicles areinstruments or proceeds of somecriminal offense.

Search and seizure without warrant ofvessel and aircrafts for violation ofcustoms laws has been a traditionalexception to the requirement of SW.[Roldan v. Hon. Arca (1975)]

Nonetheless, in all cases falling under thiscategory, there must be a showing of aPC of a violation of the law. [Caroll v.US (1924)]

Where a vehicle is stopped and subjectedto an extensive search, thewarrantless search is valid only aslong as the officers conducting thesearch have reasonable or probablecause to believe before the search thatthey will find theinstrumentality/evidence pertaining toa crime, in the vehicle to be searched.[People v. CFI (1980)]

Searches conducted in checkpoints [Peoplev. Vinecario (2004)]They are valid as long as they are

warranted by the exigencies of publicorder and conducted in a way leastintrusive to motorists.

The vehicle is neither searched nor itsoccupants subjected to a body search(i.e. inspection of the vehicle is limitedto a visual search).

Consented warrantless searchRationale: Right of privacy may be waived.When one voluntarily submits to a search

or consents to have it made of hisperson/premises, he is precludedfrom later complaining thereof.[Peoplev. Kagui Malasugui (1936)]

When is consented search reasonable:Only if kept within the bounds of theactual consent.o A persons consent may limit the

extent/scope of a warrantlesssearch in the same way that thespecifications of a warrant limitthe search pursuant thereto.

o Officers may not use a personslimited consent to get inside hishome and conduct a generalsearch.

o The US SC said that a search for astolen TV set cannot extend to

search of an individuals otherpapers and documents.

On the other hand, where there is a nexusbetween the crime for which theevidence is sought and the item thatis seized, there is no abuse of theconsent to a search.

Customs searchFor the enforcement of customs duties

and tariff laws, the Collector ofCustoms is authorized to effectsearches and seizure. [General TravelServices v. David (1966)]

The Tariff Code authorizes customsofficers to:o Enter, pass through or search any

land, enclosure, warehouse;o Inspect / search / examine any

vessel/aircraft and any trunk /package / box / envelope or anyperson on board, or stop andexamine any vehicle/beast/personsuspected of holding/conveyingany dutiable/prohibited articleintroduced into the Philippinescontrary to law.

General rule: The Tariff and CustomsCode does not require a warrant forsuch searches.

Exception: In the search of a dwellinghouse, SW is required.

Stop and friskSTOP AND FRISK A limited protective

search of outer clothing for weapon.[Malacat v. CA (1997)]

Where a police officer observes unusualconduct which leads him reasonablyto conclude in the light of hisexperience that criminal activity maybe afoot, and that a person with whomhe is dealing may be armed andpresently dangerous,

where in the course of investigating thisbehavior he identifies himself as apoliceman and makes reasonableinquiry, and where nothing in theinitial stage of the encounter serves todispel his reasonable fear for his ownor others safety, he is entitled for theprotection of himself and others in thearea to conduct a carefully limitedsearch of outer clothing of suchpersons in an attempt to discoverweapons which might be used toassault him. [Terry v. Ohio (1968)]

Under this theory, PC is not required toconduct a stop and frisk but,nevertheless, mere suspicion/hunchwill not validate a stop and frisk.

A genuine reason must exist, in light ofthe police officers experience and


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surrounding condition, to warrant thebelief that the person has weaponsconcealed about him.

Exigent and emergency circumstancesThere was a prevailing general chaos and

disorder because of an ongoing coup,and the raid of the office/building wasprecipitated by intelligence report thatsaid office was being used as HQ bythe RAM. Also, the surveillance teambefore the raid was fired upon by thepeople inside.

The raiding team had no opportunity toapply for warrant as the court thenwas closed. There was urgency andexigency that warrant was lawfullydispensed with. [People v. de Gracia(1994)]

2. Probable cause justifyingwarrantless arrest and warrantlesssearch

Probable cause justifying warrantlessarrest and warrantless searchDefinition: Such facts and circumstances

which could lead a reasonable,discreet and prudent man to believethat an offense has been committedand that the objects sought inconnection with the offense are in theplace sought to be searched.

This implies probability of guilt andrequires more than bare suspicion butless than evidence which would justifyconviction. It is not determined by afixed formula but is resolvedaccording to the facts of each case.

D. REMEDIES OF PARTY SUBJECTOF SEARCH WARRANT

1. Who may avail of remedies

SWs illegality may be contested only bythe party whose rights have been impairedthereby. It cannot be availed by 3rdparties. [Lim v. Ponce de Leon (1975)]

Hence, when a corporations documentswere seized, the corporate officers cannotquestion the legality of the search as theirpersonalities are separate and distinctfrom that of the corporation. [Stonehill v.Diokno (1967)]

2. Remedies

a. Employ any means to prevent the search. Without a SW, the officer cannot insist on

entering a citizens premises. If he doesso, he becomes an ordinary intruder.

The person to be searched may resist thesearch and employ any means necessaryto prevent it, without incurring anycriminal liability. [People v. Chan Fook(1921)]

b. File criminal action against officer. A public officer/EE who procures a SW

without just cause is criminally liableunder Art. 129, RPC.

c. File a MTQ the illegal SW. This remedy is employed if search is not

yet conducted. General rule: The motion must be filed

before the sala of the judge who issued it.Only the court that issued the SW mayorder revocation of SW or release of thingsseized. [Pagkalinawan v. Gomez (1967)]

Exception: Where the SW is issued by onecourt and the criminal action based onthe results of the search is afterwardsfiled in another court, the motion may befiled in either court. [People v. CA (1999)]

What may be raised in the MTQ: Only theissues of existence or non-existence of PCat the time of the SWs issuance;compliance with requisites.Matters of defense are to be raised in the

criminal action. [DOH v. Sy Chi Siong(1989)]

d. File a motion to return seized things. This is the remedy used if the search was

already conducted and goods were seizedas a consequence thereof.

Where the motion will be filed follows thesame rules as 2(c) above.

e. Motion to quash a search warrant or tosuppress evidence (2005, 2007 Bar)

Rule 126, Sec. 14 Where to fileIf criminal action hasbeen filed

Court where the actionhas been instituted

If no criminal actionhas been instituted

Court that issued SW

If no criminal action isfiled and motion isfirst filed with thecourt that issued theSW, but it failed toresolve the motionand a criminal case issubsequently filed inanother court

Court where thesubsequent criminalaction has beeninstituted

Grounds for a Motion to Quash [Bache &Co. v. Ruiz (1971)]o No personal examination by the

judgeo More than one specific offenseo No particular description

Who may file


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o Person injuredo Person searchedo Owner of the property

An accused may file a Motion to SuppressEvidence if he is not among thepersons who can file a Motion toQuash.

3. Effect of failure to quash warrant

Where no MTQ the search warrant wasfiled in or resolved by the issuing court,the interested party may move in thecourt where the criminal case is pendingfor the suppression of the personalproperty seized IF the same is offeredtherein as evidence (REGALADO).

The MTQ a search warrant and Motion toSuppress Evidence are alternative, notcumulative remedies.

4. Effects of illegal search

Illegally seized evidence may not beadmitted in evidence in any proceeding.[Art. 3, Sec. 2, 1987 Consti]

DISPOSITION OF ILLEGALLY SEIZEDPROPERTYGeneral rule: Goods seized by virtue of an

illegal warrant must be returned[Castro v. Pabalan (1976)]

Exception: If possession of the thingsseized is prohibited by law, theyshouldnt be returned.

However, where the accused obtainedgoods from another through paymentof bouncing checks and thereaftersold said goods to a buyer in goodfaith, but said goods were taken fromthe purchaser with the use of a SWalthough the criminal case for estafaagainst the accused was still pending,the goods should be returned to thebuyer.

The buyer is entitled to possession ofgoods until restitution is ordered bythe court in the criminal case. [Yu v.Honrado (1980)]

5. Waiver of immunity againstunreasonable searches andseizure [Pasion v. Locsin (1938)]

The constitutional immunity againstunreasonable searches and seizure is apersonal right that may be waivedexpressly/impliedly.

Waiver cannot be made just by anyone,except the person whose right is beinginvaded or one who is expresslyauthorized to do so in his behalf.

Requisites of a valid waiver:

o It must appear that the right exists;o That the person involved had

knowledge, (actual or constructive) ofthe existence of such right;

o That the person had an actualintention to relinquish the right.

6. Liability for illegal search warrant

Criminal Liability Violation of the following:

Violation of domicile (RPC Art. 128)SW maliciously obtained (Art. 129)Searching domicile without witnesses (Art.

130)Unjust interlocutory order (Art. 206)

Grounds:Against public officer or employer:

o Entering without authority;against the will; refuses to leave

o SW procured without just causeor if with just cause, exceeds isauthority or use of unnecessaryseverity

o Without required witnessesAgainst judge

o For knowingly rendering an unjustinterlocutory order

o Inexcusable negligence orignorance

E. CIVIL LIABILITY

Violation of the followingViolation of rights and liberties (Art. 32,

CC)Malicious prosecution and acts referred

to Art. 32. (Art. 2218, CC) Malice or bad faith is not required Not only official actions, but makes all

persons who are responsible for theviolation liable for damages [MHPGarments v. CA (1994)]

REVIEWER IN REMEDIAL LAW Chapter 4: Arrest

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Chapter 4: Arrest

A. CONCEPTB. PROCEDURE

1. CONSTITUTIONAL REQUIREMENTS ONARREST

2. ARREST WITH WARRANT3. ARREST WITHOUT WARRANT4. ILLEGAL ARREST5. RIGHT OF ATTORNEY OR RELATIVE TO

VISIT ARRESTED PERSONC. OTHER FORMS OF ARREST WARRANTS

1. HUMAN SECURITY ACT, RA NO. 93722. BID ARREST BY VIRTUE OF AN ORDER

OF DEPORTATIOND. CUSTODIAL INVESTIGATION

1. WHAT IS EMBRACED IN CUSTODIALINVESTIGATIONS; WHAT IS NOT

2. CUSTODIAL RIGHTS OF THE ACCUSED3. CONSEQUENCES OF VIOLATION OF

CUSTODIAL RIGHTS

A. CONCEPT

ARREST Taking of a person intocustody in order that he may bebound to answer for the commissionof an offense. [Rule 113, Sec. 1]

Ordinarily, an invitation to attend ahearing and answer some questions,which the person invited may heed orrefuse at his pleasure, is not illegal orconstitutionally objectionable.

However, where the invitation comesfrom a powerful group composedpredominantly of ranking militaryofficers issued at a time when thecountry has just emerged from martialrule and when the suspension of theprivilege of the writ of habeas corpushas not entirely been lifted, and thedesignated interrogation site is amilitary camp, the same can be easilytaken, not as a strictly voluntaryinvitation which it purports to be, butas an authoritative command which onecan only defy at his peril. Although inthe guise of a request, it was obviouslya command or an order of arrest that aperson could hardly be expected to defy.[(Sanchez v. Demetriou (1993)]

Immunity from arrestSenators and Members of the House of

Representatives, while Congress isin session and for offensespunishable by not more than 6years imprisonment. [Art. 6, Sec. 11,Consti]

Ambassadors and ministers of foreigncountries. [RA 75]

B. PROCEDURE

1. Constitutional requirements onarrest

The right of the people to be secure intheir persons, houses, papers, andeffects against unreasonable searchesand seizures of whatever nature and forany purpose shall be inviolable, and nosearch warrant or warrant of arrestshall issue except upon probable causeto be determined personally by thejudge after examination under oath oraffirmation of the complainant and thewitnesses he may produce, andparticularly describing the place to besearched and the persons or things tobe seized. [Art. 3, Sec. 2, Consti]

2. Arrest with warrant (2008 Bar)

IssuanceEssential Requisites of a Valid Arrest

Warrant [Art. 3, Sec. 2, Consti]o It must be issued upon PC

which must be determinedpersonally by a judge afterexamination under oath oraffirmation of the complainantand the witnesses he mayproduce.

o The warrant must particularlydescribe the person to be seized.

Instances When Judge Issues Warrant ofArrestUpon the filing of the information by the

public prosecutor and after personalevaluation by the judge of theprosecutors resolution andsupporting evidence. [Rule 112, Sec.6(a)]o The judge does not have to

personally examine thecomplainant and his witnesses.The prosecutor can perform thesame functions. [Soliven v.Makasiar (1988)]

o Bare certification by the fiscal isnot enough. It should besupported by a report andnecessary documents. [Lim v.Felix (1991)]

Upon application of a peace officer andafter personal examination by thejudge of the applicant and thewitnesses he may produce. [Rule112, Sec. 6(b)]


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o Rationale: There is yet noevidence on record upon whichjudge may determine theexistence of PC.

o Conditions: The investigating judge must

have examined in writingand under oath thecomplainant and hiswitnesses by searchingquestions and answers.

He must be satisfied that PCexists;

There is a need to place therespondent under immediatecustody in order not tofrustrate the ends of justice.[Samulde v. Salvani (1988)]

A warrant of arrest has no expiry date.It is only subject to therequirements found in Section 4,Rule 113.

How arrest is madeNo violence or unnecessary force shall

be used in making an arrest. Personarrested shall not be subject to agreater restraint than necessary.[Rule 113, Sec. 2, par. 2]

Application of actual force, manualtouching of the body, physicalrestraint or a formal declaration ofarrest is not required.

It is enough that there be an intent onthe part of one of the parties toarrest the other and an intent onthe part of the other to submit,under the belief and impression thatsubmission is necessary. [Sanchez v.Demetriou (1993)]

Time to make arrestArrest may be made on any day and at

any time of the day or night [Rule113, Sec. 6]

Duties of the arresting officerExecution of warrant (section 4, Rule

113)o The head of the office to whom

the warrant of arrest wasdelivered shall cause thewarrant to be executed withinten (10) days from its receipt

To make a report to the judge whoissued the warrant within 10 daysafter expiration of the period toexecute.

o In case of his failure to execute,he shall state the reasonstherefore

To arrest the accused and deliver him tothe nearest police station or jailwithout unnecessary delay. [Rule113, Sec. 3]

Rights of the arresting officerTo summon assistance. [Rule 113, Sec.

10]o He may orally summon as many

persons as he deems necessaryto assist him in effecting thearrest.

o Persons summoned shall assistin effecting the arrest when hecan do so without detriment tohimself.

To break into any building/enclosurewhere the person to be arrested is oris reasonably believed to be. [Rule113, Sec. 11]o If he is refused admittance after

announcing his authority andpurpose.

o Also applicable where there is avalid arrest without a warrant.

o Rationale: Person to be arrestedcannot use hishouse/building/enclosure as ashelter for crime. Theinviolability of domicile cannotbe used to shield arrest.

To break out from thebuilding/enclosure when necessaryto liberate himself. [Rule 113, Sec.12]o Also applicable where there is a

valid arrest without a warrant.To search the person arrested for

dangerous weapons or anythingwhich may have been used orconstitute proof in the commissionof an offense. [Rule 126, Sec. 13]o Without need of a search

warrant.

3. Arrest without warrant (1997,2000, 2003, 2004 Bar)

IN FLAGRANTE DELICTO Literally,caught in the act of committing a crime.When the person to be arrested hascommitted, is actually committing or isattempting to commit an offense in thepresence of the peace officer or privateperson who arrested him. [Rule 113, Sec.5(a)]In his presence means: [People v.

Evaristo (1992)]


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He sees the offense, even thoughat a distance;

He hears the disturbances createdby the offense and proceeds atonce to the scene;

Offense is continuing or has beenconsummated at the time arrest ismade.

Entrapment and instigation An arrest made after an

entrapment does not require awarrant inasmuch as it isconsidered a valid warrantlessarrest pursuant to Rule 113, Sec.5(a) of the Rules of Court.[Teodicio v Court of Appeals (2004)]

Buy-bust operation When the appellant is caught in

flagrante as a result of the buy-bust operation, the policemen arenot only authorized but are alsounder obligation to apprehend thedrug pusher even without awarrant of arrest. [People v deLara (1994)]

HOT PURSUIT ARREST - When an offensehas just been committed and the officer orprivate person has probably cause tobelieve based on personal knowledge offacts or circumstances that the person tobe arrested has committed it [Rule 113,Sec. 5(b)]Officer / private person must have

personal knowledge of offense justcommittedo Personal knowledge must be

based on probable cause whichmeans an actual belief orreasonable grounds of suspicion.

o The grounds of suspicion arereasonable when, in the absenceof actual belief of the arrestingofficer, the suspicion that theperson to be arrested is probablyguilty of committing the offense isbased on actual facts, i.e.,supported by circumstancessufficiently strong in themselves tocreate the probable cause of guiltof the person to be arrested.

o A reasonable suspicion thereforemust be founded on probablecause, coupled with good faith onthe part of the peace officersmaking the arrest.. [Posadas v.Ombudsman (2000)]

Meaning of offense has in fact just beencommitted: implies immediacy inpoint of time

Arrest of escaped prisonerWhen the person to be arrested is a

prisoner who has escaped: [Rule 113,Sec. 5(c)]o From a penal establishment or

place where he is: Serving final judgment; Temporarily confined while his

case is pending.o While being transferred from one

confinement to another.Escapee may be immediately pursued or

re-arrested without a warrant at anytime and in any place within thePhilippines. [Rule 113, Sec. 13]

Rationale: At the time of arrest, theescapee is in continuous commissionof a crime (i.e. evasion of service ofsentence).

Duties of arresting officer without warrantThe officer shall inform the person to be

arrested of his authority and thecause of the arrest. [Rule 113, Sec. 8]

Exceptions:o The person to be arrested is

engaged in the commission of theoffense;

o He is pursued immediately afterits commission;

o He escapes, flees or forcibly resistsbefore the officer has theopportunity to so inform him;

o Giving such information willimperil the arrest.

Duties of private person effecting an arrestThe private person shall inform the

person to be arrested of the intentionto arrest him and the cause of thearrest. [Rule 113, Sec. 9]

Exceptions (same as those for arrest by anofficer)o The person to be arrested is

engaged in the commission of theoffense;

o He is pursued immediately afterits commission;

o He escapes, flees or forcibly resistsbefore the officer has theopportunity to so inform him;

o Giving such information willimperil the arrest.

The private person must deliver thearrested person to the nearest policestation or jail, and he shall beproceeded against in accordance withRule 112, Sec. 7.

Otherwise, the private person may be heldliable for illegal detention.


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4. Illegal arrest

If the arrest of a person is not justified byany of the instances of a warrantlessarrest under Rule 113, Sec. 5.

The fact that the person arrested did notactually commit the crime does not renderthe arrest illegal.

Consequences of illegal arrestThe documents/things/articles seized

following the illegal arrest are notadmissible in evidence. They areconsidered fruits of the poisonoustree.

The arresting person/officer may be heldcriminally liable for illegal arrest.o Unlawful arrest; [Art. 269, RPC]o Arbitrary detention. [Art. 124, RPC]

The arresting officer may be held civillyliable for damages. [Art. 32, CC]

It is not necessary that there should bebad faith or malice. Such requisitewould defeat the main purpose of theprovision which is the effectiveprotection of individual rights.

The fact that the arrest was illegal doesnot render the subsequentproceedings void and deprive the Stateof its right to convict when all thefacts point to the culpability of theaccused.

Waiver of illegal arrestThe accused may waive the illegality of his

arrest either expressly or impliedly.The objection to illegality of arrest must

be made before arraignment in amotion to quash; otherwise it isdeemed waived. [Rule 117, Sec. 9]

Application for or admission to bail doesnot amount to waiver. [Rule 114, Sec.26]

5. Right of attorney or relative tovisit arrested person [rule 113,sec. 14]

At the request of the arrested person or ofanother acting in his behalf, anymember of the Philippine Bar shallhave the right to visit and conferprivately with such person in the jailor any other place of custody at anyhour of the day or night.

A relative of the person can also exercisethis right, subject to reasonableregulations.

C. OTHER FORMS OF ARRESTWARRANTS

1. Human Security Act, RA No. 9372

Suspected terrorists may be detainedwithout judicial warrant or arrest for upto 3 days, without the police or lawenforcement personnel incurring anycriminal liability [Sec 18, RA 9372]

2. BID arrest by virtue of an order ofdeportation

Aliens shall be arrested upon the warrantof the Commissioner of Immigration or ofany other officer designated by him for thepurpose and deported upon the warrant ofthe Commissioner of Immigration after adetermination by the Board ofCommissioners of the existence of theground for deportation as charged againstthe alien. [Sec. 37, CA No. 613 (ThePhilippine Immigration Act of 1940)]

D. CUSTODIAL INVESTIGATION

Involves the questioning initiated by lawenforcement officers after a person hasbeen taken into custody or otherwisedeprived of his freedom of action in anysignificant way.

Custodial investigation begins where theinvestigation is no longer a general inquiryinto an unsolved crime but has began tofocus on a particular suspect, the suspecthas been taken into police custody, andthe police carry out a process ofinterrogation that lends itself to elicitingincriminating statements. [People v.Rodriguez]

1. What is embraced in custodialinvestigations; what is not

Included in custodial investigationThe practice of issuing an "invitation" to a

person who is investigated inconnection with an offense he issuspected to have committed. [Sec. 2,last par., RA 7438]

RE-ENACTMENT A demonstration bythe accused of how he committed thecrime. It is a police contrivancedesigned to test the truthfulness ofthe statements of the witness who hadconfessed to the commission of thecrime.

One-on-one confrontation. This method isas tainted as confession without thepresence of counsel. [People v. Teves(2001)]


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Statements or admissions not covered bycustodial investigationPOLICE LINE-UP conducted before the

custodial investigation, the purpose ofwhich is to identify the suspect amongmany persons lined up.

The stage of the investigation wherein aperson is asked to stand in a policeline-up is outside the mantle ofprotection of the right to counselbecause it involves a general inquiryinto an unsolved crime and is purelyinvestigatory in nature. [People v.Pavillare (2000)]

TOTALITY OF CIRCUMSTANCES TEST test employed in resolving theadmissibility of out-of-courtidentification of suspects; requires thefollowing factors to be considered:[People v. Teehankee (1995)]o The witness opportunity to view

the criminal at the time of thecrime;

o The witness degree of attention atthat time;

o The accuracy of any priordescription given by the witness;

o The level of certaintydemonstrated by the witness atthe time of identification;

o The length of time between thecrime and the identification;

o The suggestiveness of theprocedure.

ULTRAVIOLET RAY EXAMINATION itspurpose is to determine the presenceof ultraviolet powder and does notrequire presence of counsel.

2. Custodial rights of the accused[Sec. 2, RA 7438]

To be assisted by counsel at all times.Waiver of the right to counsel must be

made with the assistance of counsel.[Art. 3, Sec. 12(1), Consti]

Specifically in the following instances:o Signing of the written custodial

report;o Signing of the written extra-

judicial confession (2008 Bar)o In the absence of counsel and

upon valid waiver, it may be madein the presence of any his parents,elder brothers and sisters, spouse,the municipal mayor, themunicipal judge, district schoolsupervisor, or priest/minister ofthe gospel as chosen by him.

Signing of the waiver to the provisions ofArt. 125, RPC.

To be informed, in a language known toand understood by him, of his rights toremain silent and to have competent andindependent counsel, preferably of his ownchoice, who shall at all times be allowed toconfer privately with the person arrested,detained or under CI.If he cannot afford to have his own

counsel, he must be provided with acompetent and independent counselby the investigating officer.

Assisting counsel may be any lawyer,except those:o Directly affected by the case;o Charged with conducting PI;o Charged with the prosecution of

crimes; [Sec. 3, RA 7438]

To be allowed visits by or conferenceswith:any member of his immediate family, or

any medical doctor orpriest orreligious ministerchosen by him or by any member of his

immediate family or by his counsel, orby any national NGO duly accreditedby the Commission on Human Rightsor by any international NGO dulyaccredited by the Office of thePresident.

"Immediate family" includes his or herspouse, fianc or fiance, parent orchild, brother or sister, grandparentor grandchild, uncle or aunt, nephewor niece, and guardian or ward.

3. Consequences of violation ofcustodial rights

Failure to inform.o Any arresting public officer or

employee, or any investigatingofficer, shall suffer a fine ofP6,000.00 or a penalty ofimprisonment of not less than 8years but not more than 10 years,or both.

o The investigating officer who hasbeen previously convicted of asimilar offense shall suffer thepenalty of perpetual absolutedisqualification.

Obstruction, prevention or prohibition ofright to visits or conferenceso Any person guilty thereof shall

suffer the penalty of imprisonmentof not less than 4 years nor morethan 6 years and a fine ofP4,000.00

Inadmissibility of evidence does notpreclude conviction on other evidence

REVIEWER IN REMEDIAL LAW Chapter 5: Prosecution of Offenses

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Chapter 5: Prosecution ofOffenses

A. INSTITUTION OF CRIMINAL ACTIONS1. IN GENERAL2. PROSECUTION3. COMPLAINT OR INFORMATION4. EFFECTS5. COMPLAINT OR INFORMATION6. PLACE WHERE ACTION IS TO BE

INSTITUTED7. INTERVENTION OF OFFENDED PARTY

B. PROSECUTION OF CIVIL ACTION1. IN GENERAL2. CIVIL LIABILITY3. SUSPENSION OF CIVIL ACTION4. EFFECT OF DEATH OF ACCUSED ON

CIVIL ACTION5. EFFECT OF JUDGMENT IN CIVIL CASE

ON CRIMINAL ACTION

A. INSTITUTION OF CRIMINALACTIONS

1. In general

Before preliminary investigation, theremust first be a determination ofwhether or not there is a crime.

Otherwise, there is no need to proceedto the preliminary investigation todetermine the culpability of a person sohe could be held for trial.

How actions are instituted Criminal actions shall be instituted as

follows:For offenses where preliminary

investigation is required pursuant tosection 1 of Rule 112 (where thepenalty prescribed by law is at leastfour (4) years, two (2) months andone (1) day without regard to thefine) by filing the complaint with theproper officer for the purpose ofconducting the requisite preliminaryinvestigation therein;

For all other offenses, by filing thecomplaint or information directlywith the Municipal Trial Courts andMunicipal Circuit Trial Courts, orthe complaint with the office of theprosecutor. In Manila and otherchartered cities, the complaint shallbe filed with the office of the publicprosecutor unless otherwiseprovided in their charters. [Rule110, Sec. 1]

Institution of criminal actioninterrupts prescriptive period

The institution of a criminal action shallinterrupt the running of the period ofprescription of the offense chargedunless otherwise provided in speciallaws. [Rule 110, Sec. 1]

2. Prosecution

Criminal prosecution may not berestrained; exceptions

General rule: Writs of injunction/prohibition will not lie to restrain (eitherthrough preliminary or final injunctionor writ of prohibition) a criminalprosecution.

Rationale: Public interest requires thatcriminal acts be immediatelyinvestigated and prosecuted for theprotection of society.

Exceptions (1999 Bar):When injunction is justified by

necessity to afford protection to theconstitutional rights of the accused;

When necessary for the orderlyadministration for justice or to avoidmultiplicity of actions;

When there is a prejudicial questionwhich is sub judice;

When the acts of the officer are withoutor in excess of authority;

Where the prosecutions is under aninvalid law/ordinance/regulation;

When double jeopardy is clearlyapparent;

Where the court has no jurisdiction overthe offense;

Where it is a case of persecution ratherthan prosecution;

Where the charges are manifestly falseand motivated by the lust forvengeance;

Where there is clearly no prima faciecase against the accused and MTQon that ground has been denied;

Preliminary injunction has been issuedby the SC to prevent the threatenedunlawful arrest of petitioners.

Prosecutor has control of prosecution(1999 Bar)

The public prosecutor is a quasi-judicialofficer and a representative of asovereignty whose obligation to governimpartially is as compelling

up 2009 remedial law (criminal procedure)

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