Consti Transcription

8/21/2019 Consti Transcription

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CONSTITUTIONAL LAW II (Bill of Rights)SY 2013-2014

Transcription for the lectures of Atty. Rovyne Jumao-as

A mans house is his castle It is a hallmark of a free and democratic society of the right to be left alone. So this is the right to be left alone; the right to privacy; the most honored of

all individual rights. Take it away from a person, and you take away almost

all of his liberties.

It is said that no man is an island, but sometimes, a man needs to haveprivacy in his own island.

Under the Constitution, this right to privacy is protected. Take note that the Consti. is a guarantee against governmental

instrusion. That is, when the govt or state intrudes against our privacy. Q: Do we have a to invoke the Constitutional right to privacy as against

another (ex: your classmate)? A: None. You use the Civil Code provisions for

that matter and not the Constitutional law provisions.

o Meaning, you cannot claim that the act of your classmate is invalid.But you can claim damages because of certain violations of certain

provisions in the Civil Code.

VIOLATIONS OF THE STATE AS AGAINST THE INDIVIDUAL (Governmental

Intrusion)

Sec. 2 Right Against Unreasonable Searches and Seizures and

Unreasonable Arrests

The right of the people to be secure in their persons, houses, papers, and effectsagainst unreasonable searches and seizures of whatever nature and for any

purpose shall be inviolable, and no search warrant or warrant of arrest shall issueexcept upon probable cause to be determined personally by the judge afterexamination under oath or affirmation of the complainant and the witnesses he may

produce, and particularly describing the place to be searched and the persons orthings to be seized.

Section 2 recognizes the RIGHT TO PRIVACY . There may be governmental intrusion, provided that there is warrant. There may be reasonablesearch and seizure. This right under Section 2 protects all persons, even aliens and corporations.

SEARCH AND SEIZURE

When is serach and seizure unreasonable?

Constitutional Law IIBill of Rights)


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2 instances:

W/ a warrant- when obtained or implemented illegally. W/o a warrant- there are certain instances w/c allow searches and seizures

w/o a warrant.

-it is unreasonable if it does not fall under ceratin exceptions allowed byjurisprudence/law.

SEARCH WARRANT (Check Rule 126, Rules of Court)

A search warrant is an order in writing issued in the name of the People of the

Philippines, signed by a judge and directed to a peace officer, commanding him

to search for personal property described therein and bring it before the court.

NOTE:

Only PEACE OFFICERS are assigned to conduct searches and seizures.Q: Who may issue a search warrant?

Salazar v. Achacoso

There is a provision in the Labor Code w.c was enacted in the 1987 Consti. andthere are several ammendments coming from the PDs of Marcos wherein the Sec.Of Labor or the POEA through the Sec. Of Labor, is vested w/ the authority to issuea search warrant or arrest warrant in relation to the provision in that coderegarding prohibition on illegal recruitment.

Under the Consti., in Sec. 2 of Art. 3, it says, No search warrant or warrant ofarrest shall issue except upon probable cause to be determined personally by the

judge...

Now in this case, the law authorizes the Sec. Of Labor to issue a search warrant if itinvolves illegal recruitment.

Q: Is that provision valid under the Consti?

*Take note that under the Consti., only a judge may issue a search warrant

and a warrant of arrest. The issuance of a warrant, therefore, is aJUDICIAL PROCESS.

HELD:

The provision in the Labor Code is UNCONSTITUTIONAL.


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The authorities if it is to implement the recruitment pursuant to the Labor Code,MUST UNDERGO THE JUDICIAL PROCESS.

PRINCIPLE IN THIS CASE: It is only the JUDGES and no other who mayissue warrants of arrest and search

That provision in the LC is invalid for being UNCONSTITUTIONAL.

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GENERAL RULE: Only a judge may issue a search and arrest warrants.

EXCEPTION: Deportation of illegal and undesirable alien/s, whom the Pres. Or theCommissioner of Immigration may order arrested following the order of deportationfor the purpose of deportation. Connect this regarding the powers of the ChiefExecutive under his FOREIGN RELATIONS POWER.

REMEMBER: It is under jurisprudence that the President is recognized hasthe authority even w/o court order to deport an alien if he/she finds thatalien to be undesirable. That is w/in his EXECUTIVE PREROGATIVE.

Therefore, there is NO NEED FOR WARRANT OF ARREST IF THE PURPOSEIS FOR DEPORTATION.

WHERE WILL YOU APPLY FOR A SEARCH WARRANT?

(Check: Rule 126, Sec. 2, Rules of Court)

Sec. 2. Court where application for search warrant shall be filed. An

application for search warrant shall be filed with the following:

(a) Any court within whose territorial jurisdiction a crime was committed.

(b) For compelling reasons stated in the application, any court within the judicial

region where the crime was committed if the place of the commission of the crime

is known, or any court within the judicial region where the warrant shall be

enforced.

However, if the criminal action has already been filed, the application shall only

be made in the court where the criminal action is pending.

Brief discussion of the provision:

(a) It can be filed w/ the MTC, RTC, CA but not the SC.


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CRIMLAW: Venue is jurisdictional. only the courts where

the crime was committed will have the jurisdiction over that

particular crime.

-You take into consideration the place where the crime was

committed. Why? Availability of witnesses and evidence.This is in favor of the accused.

Ex: If a crime was committed in Davao City, only the courts

in Davao City will have jurisdiction over the case.

CIVIL LAW: You take into consideration the residence of the

parties.

NOTE: Because this is just a judicial process, there are EXCEPTIONS forcompelling reasons.

The following are the exceptions to the GENERAL RULE:

It may be any court WITHIN THE JUDICIAL REGION where thecrime was committed.

o Ex: When a crime was committed in Davao City and forcompelling reasons, you may apply for a warrant in any ofthe courts within the same judicial region as Davao

o Take note that the Phils. has several judicial regions.o Davao,Tagum and Mati belongs to the XVI judicial region.o Q: If a crime was committed in Davao and due to compelling

reasons, you cannot apply in Davao, can you apply in the

court of Mati?o A: Yes! As long as it is w/in the same judicial region where

the crime was committed. Or if not, the other considerationis in the place where the warrant shall be enforced.

In the place where the warrant shall be enforced.o Ex: When the crime was committed in Davao and the

accused is in Mati, you can still apply in Mati for compellingreasons.

Kenneth Roy v. Taypan

Facts:

The NBI here apply for a SW to seize several pieces of furniture belonging topetitioner. The alleged offense is a violation of the Intellectual Property Code, thatis on unfair competiton.


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Now there are what we call as special courts like family courts. In this case, wehave a special court for violation of intellectual properties.

In this case, the NBI applied for a SW w/ the RTC Br. 12 which is not a special courtfor intellectual property.

Q: Does that branch have jurisdiction to issue a SW?

Held:

Yes. Remember that what is filed here is not a case. Its merely a court processof ISSUING A SW.

ALL COURTS HAVE THE AUTHORITY TO ISSUE SW, even though it is filedw/ the special court w/c has jurisdiction w/ regard to the case.

PRINCIPLE: SW is merely a process issued by the court in its exercise of itsANCILLIARY JURISDICTION.

-It is not a criminal action which it may entertain pursuant to its orig.Jurisdiction.

-the authority to issue SW is INHERENT IN ALL COURTS, AND MAY BEAFFECTED OUTSIDE THEIR TERRITORIAL JURISDICTION.

Sony Computer v. Supergreen

Facts:

This is with regard to a violation of the Intellectual Property Code.

The NBI applied w/ the RTC of Manila. But the SW is to be effected in respondentspremises in Cavite.

a. Manila belongs to the NCR judicial region.b. Cavite belongs to the 4thjudicial region.

It seems that it does not fall in letter b.

Here, application was in Manila. It would be implemented in Cavite. Both belong todiff. judicial regions.

Held:

The application and the issuance of the SW in Manila is VALID because what wehave here is a CONTINUING OFFENSE.


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Production of the immitated goods was in Cavite. So thats the place to besearched.

The goods that are reproduced are sold in Manila.

We have here a CONTINUING OFFENSE.

PRINCIPLE: The SW may be applied in any court where any of the elementsof the continuing offense was committed.

-if the criminal action has already been filed, the application shall be madein the court where the criminal action is pending.

-so if there is already a pending case, only the court w.c has acquired orig.Jurisdiction of the case may issue the SW.

REQUIREMENTS FOR A VALID SW:

(Check: Sec. 2, Art. 3, 1987 Consti. + additional requirements by the Rules

of Court STATUTORY REQUIREMENTS)

Sec. 4, Rule 126, Rules of Court:

Sec. 4. Requisites for issuing search warrant. A search warrant shall not

issue except upon probable cause in connection with one specific offense to be

determined personally by the judge after examination under oath or affirmation of

the complainant and the witness he may produce, and particularly describing the

place to be searched and the things to be seized which may be anywhere in thePhilippines.

Brief discussion of the provision:

in connection with one specific offensean additional requirementprovided by the Rules of Court; cannot be found in the Consti.

NOTE:There is an expiration date for each SW.

- Under the rules, it shall be valid only for 10 days from its date ofissuance.- A SW that is being implemented on the 12th day is no longer alegal SW. Its already considered as UNREASONABLE.

THE FF. ARE THE REQUIREMENTS FOR A VALID SW:

1.) The SW must be based on probable cause;2.) The probable cause must be determined personally by the judge;


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3.) The determination of the existence of probable cause must bemade after examination by the judge of the complainant and thewitnesses he may produce; and

4.) The warrant must particularly describe the place to be searched,and the persons or things to be seized; the searching officer islimited to what is provided in the SW.

5.) It must be issued w/ one specific offense. a STATUTORYREQUIREMENT NOT FOUND IN THE CONSTI.

6.) It must be used within the 10th-day validity period anotherSTATUTORY REQUIREMENT NOT FOUND IN THE CONSTI.

PROBABLE CAUSE A search warrant must be issued upon probablecause what does this mean? NOT BASED ON MERE SUSPICION! ORMERE ASSUMPTION! OR MERE GUESS!

Ex: Youre suspecting that your boyfriend is seeing somebody else.

It must be more than that! It must be based upon probable cause!

-Youre suspecting that your boyfriend is not calling you anymore asoften as he used to call you. Is that probable cause?

PROBABLE CAUSE (Defn) such facts and circumstances as would leada reasonably prudent man to believe that an offense has beencommitted, and that the documents and things sought to be searched orseized, is in the possession of the person against whom the warrant is

issued.

NOTE: There must be certain proof that will lead to a conclusion that anoffense has probably been committed.

-So in the example that the boyfriend does not call anymore, is not asufficient circumstance to conclude that your boyfriend is seeingsomeone else. Its just SUSPICION! If we categorize it accor. toevidence, it is just CIRCUMSTANCIAL. Its not enough to engender thatwell-founded belief that the crime has been committed.

Q: So what are examples of probable cause?

NOTE: One principle to remember is that, because when you apply, youhave to prove to the judge the existence of these facts andcircumstances and would convince the judge that a crime has probablybeen committed, and the objects/things of the crime is in thepossession of this particular person, or in this particular place. So, youpresent evidence.


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WHAT KIND OF EVIDENCE?

The first thing to remember is that facts and circumstances must be theBEST EVIDENCE to be obtained under the circumstances.

PICOP v. Asuncion

Facts:

The PNP applied for SW for a search of PICOP (in Bislig before) of some illegalarmalight rifles and other certain firearms.

Now, the applicant however, did not allege before the trial court that Picop hasno license to possess the firearms. Nor has he attached a certification on theFirearms and Explosives Unit on the lack of license. Meaning, when he went tothe judge, he said, Judge, Picop has some illegal firearms. But thats it. Thereis no proof to show that Picop is in possession of these firearms w/c are illegal.

Q: Now what could be the best evidence that could be obtained under thecircumstances to prove to the judge that probably theres probable cause tobelieve that Picop is in posession of illegal firearms?

A:A CERTIFICATION from the police or the Firearms and Explosives Unit onlack of license.

If the Firearms and Explosives Unit will certify that Picop has no license topossess firearms, and if you can present someone who saw, or you yourself sawthat Picop has firearms, that what could be the best evidence to show probable

cause, especially if this is a negative ingredient in the offense, like there is nolicense? How can you prove that there is no license? When there is aCERTIFICATION to the fact that Picop has no license.

People v. Estrada

Facts:

Here the applicant is the BFAD. This time, there is no license to sell thedrugs/medicines. Now the applicant merely said that the accused has beenselling drugs and medicines w/ no license.

How did the applicant know that he has no license. Accor. to the applicant. Hehas verified it from BFAD, and BFAD said that he has no license.

Q: Is that the BEST EVIDENCE available?


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A: Its your word. Its only your word, and how can you convince the judge tobelieve your word. In other words, as it is, it has no bearing. Its self-serving.Its your word.

How can you prove that you verified it with BFAD? The best evidence that youcould obtain is a CERTIFICATION that that partic. Accused has no license to

sell the medicines.

*NOTE: If there is no punishable offense alleged, there can no beprobable cause.

Ex: Judge, I believe that my boyfriend is seeing someone else. I havethis picture. I can present to you some witnesses to prove that theyhave seen my boyfriend being intimate w/ someone else.

If that is the application, will the judge isssue the SW?

-The judge will say, there is no offense for seeing someone else. Thatsyour problem.

-Even if you present the best evidence that you have, if theres nooffense punishable by law, then there will be no probable cause to issuethe SW.

Coca-Cola v. Gomez

Facts:

Coca-Cola filed for a SW against Pepsi Cola. Pepsi has been hoarding bottles ofCoke in their premises, and Coke would want to search the premises and seizethe bottles. Their allegation is UNFAIR COMPETITION under the IntellectualProperty Code.

Held:

The Intellectual Property Code does not punish hoarding of bottles as unfaircompetition. Theres nothing in the IPC , because it only refers to trademarks,

tradenames, etc. Pepsi did not pass on the bottles as an imitation of Coke. Theydid not, in fact, use the bottles.

Looking in the IPC, the SC said that there is nothing in the code w/c penalizessuch action of Pepsi. Therefore, there is no probable cause being that there is nooffense that is committed. There seems to be no violation of law.

People v. Salanguit


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Facts:

A SW was issued.

The court determines the ff. are to be searched:

1.) Undetermined quantity of shabu; and2.) Drug paraphernalia

Perusing the records of the examination of the applicant, it was shown thatno one/ no witness testified as to the probable existence of DRUGPARAPHERNALIA but only SHABU.

In the SW, search for shabu and drug paraphernalia.

Q: Is the SW invalid? Since there was no probable cause to issue a SW fordrug paraphernalia.

Held:

No. A SW is separable. It may be separated in parts. The invalidity of theportion may still retain the validity of the other portion.

The fact that there was no probable cause to support the seizure of drugparaphernalia does not warrant the conclusion that the entire SW is invalid.It is only relevant if the police officers searched and seized drugparaphernalia, so you question that.

In this case, if the police officers only searched and seized for shabu, thenthere is no issue.

Now, even if they searched and seized drug paraphernalia, you can onlyquestion that portion.

It is void only insofar as it authorizes the seizure of drug paraphernalia. Asto the search and seizure of shabu, if there are witnesses and existence ofprobable cause, then that is valid.

PRINCIPLE: A SW is separable. It may be void in some parts. But the

other parts may retain their validity if there is probable cause tosupport such.

HOW IS PROBABLE CAUSE DETERMINED?


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Art. 3, Sec. 2, 1987 Consti. provides that the judge mustPERSONALLY determine the existence of probable cause. This isunderstood as literal PERSONAL DETERMINATION. meaning, thejudge himself must listen to the application, and determine theexistence of probable cause. This func. is a JUDICIAL FUNC. andcannot be delegated even to the judges clerk of court.

Ruiz Case

Facts:

The judge was then conducting a hearing, when someone came to apply for aSW. The judge asked his clerk of court to take theevidence/deposition/testimony and thereafter to tell the judge what werepresented. And the judge reviewed the application in writing and theevidence available, and thereafter, issued a SW.

Held:

The taking of deposition and the taking of evidence is a personal task of thejudge w/c he canno delegate to the clerk of court. The Consti. requirespersonal determination by the judge.

So here, the SW was said to be INVALID!

*The examination must be made after affirmation under oath and

examination of the complainant and the witnesses he may produce.what is contemplated here is the requirement of a HEARING but it

is an EX PARTE HEARING. It is a hearing only of the applicant.

*This means that the judge must conduct questioning PERSONALLY!

*It must be in the form of SEARCHING QUESTIONS AND ANSWERS!meaning, probing questions not LEADING QUESTIONS.

What do you mean by LEADING QUESTIONS?

-Questions that are answerable by a YES or NO. The judge is merelyleading the applicant.

The judge will be asking, Why are you here? not, Are you here toapply for a SW? Why are you applying for a SW? not, Are youapplying for a SW because you believe that there are illegal firearmsbeing possessed by this person?


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*The application must be in WRITING meaning that the applicantmust swear to the truth of his testimony. Why? Remember that theaccused or the person who owns/occupies the premises is not thereto rebut your application. So one must be under oath when heapplies for a SW and the witnesses he may produce, and it must be inWRITING. Why in writing? This is to allow, later on, the person whomay be affected of the SW to review whether the Constitutional andstatutory requirements have been complied w/. Otherwise, he caninvoke invalidity of the SW. And the facts testified to by the applicantand witnesses, if any, must based on PERSONAL KNOWLEDGE. Theexamination must be attached to the records of the case, includingall the statements and affidavits submitted to by the applicant,complainants and the witnesses, if any.

Silva v. Presiding Officer

Facts:

The examination here was reduced into writing as required by theConstitution. Perusing the examination, it consisted merely of 4 leadingquestions, answerable by yes or no.

Held:

The determination must be in the form of searching questions and answers.

Thus, the examination failed to conform w/ the requirement.

The question must be probingnot merely routinary. Not repetitious.

It is repetitious if the judge merely asked, What is in the affidavit? Thejudge must go further than what is written in the affidavit.

Prudente v. Dayrit

Facts:

The SW was questioned by the petitioner on the ground that it was issuedbased on facts and circumstances which were not within the personalknowledge of the applicant and his witnesses. But merely based on hearsay

testimony. What does the record show?

The first applicant Maj. Dinagmalig, stated that he has been informed thatthe accused has in his possession the firearms and explosives.

Does that statement prove that he has personal knowledge of thepossession of firearms?


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The witness of the applicant said that he has verified the report and he foundit to be a fact. But he does not show how he verified it. He also said that hegathered info. from verified sources Are these statements proof ofpersonal knowledge of the fact? Where do you usually hear thesestatements? The BUZZ! Because these not based on the personalknowledgeof the reporter! Merely hearsay statements!

Just like this applicant. He has no personal knowledge that the accused is inpossession of illegal firearms.

As far as he knows, someone told him from a verified source that theaccused in possessing illegal firearms.

So what is personal knowledge?

It is the narration of facts by the applicant or the witness, should be basedon what they personally see/perceive/heard/smell.

Q: If your classmate said, Is saw your boyfriend seeing somebody.Personal knowledge or hearsay? PERSONAL KNOWLEDGE!

If your classmates says, X says that she saw your boyfriend seeingsomeone else. Personal knowledge or hearsay? HEARSAY!

Whats the test? The test is when one may be held liable for perjury!

As to the 1st classmate, if if turns out not to be true, she would beliable for perjury! As to the 2ndclassmate, if it turns out later on that

it is not true, she cannot be held liable for perjury. Why? Because herdefense would be that she did not saw the boyfriend w/ someoneelse but someone just relay the info. to her.

ULTIMATE TEST TO DETERMINE WHETHER THE STATEMENT IS FROMONES PERSONAL KNOWLEDGE: Whether one will be held liable forperjury!

Held:

The facts and circumstances to show probable cause were not based on the

personal knowledge of the applicant nor of his witnesses.

It may be that the applicant has no personal knowledge but he must be ableto show witnesses to have personal knowledge of the application.

Besides, the judge in this case, issued a SW merely on the affidavitpresented and the evidence.


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Whats lacking here? The judge did not judge the probing questions.

Mere affidavits therefore, and documentary evidence without probingquestions is not sufficient to comply w/ the constitutional requirement ofdetermination of probable cause.

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*The examination must be attched in the records of the case. thisis in the interest of fair-play and due process. Remeber that theapplication is ex parte. Meaning, one sided. So the rules and theConsti. require that the examination must be attached to the recordsof the case. Why? To give the person affected by the SW anopportunity to review the validity of the issuance of the SW.

People v. Mamaril

Facts:

A SW was issued by the judge and it was stated in the SW that it was issuedafter examination of the witnesses in the form of searching questions andanswers. But it turned out that there was no record of that examination.There was no record in fact of the application.

The clerk of court when he was asked about it, he said that when he cameinto office, the records of the court was in topsy turvy situation, so he cannot

find the record.

Held:

It may be true that there was in fact an examination of the witness and theapplicant. But the fact remains that there was no evidence or document toshow that there was such examination, because it was not attached to therecords of the case. Therefore, the presumption is, there was noexamination, and the SW was declared to be invalid!

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*Particularity of the person to be searched or the things to be seized.

PLACE TO BE SEARCHED

-Jurisprudence has already estab. this rule that the description of theplace is sufficient if the officer w/ the warrant can w/ reasonableeffort, ascertain the place intended to be searched, and can


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distinguish it from other places in the community. If you canseparate that partic. place from the rest of the places in thecommunity, then there is sufficient description, that there is alreadyparticularity of the description of the place to be searched. It allowstherefore for any designation or description that points out to theplace, to the exclusion of others.

Uy v. BIR

Facts:

We have this SW. In the heading, the SW says that it is a search againstUnifish Packing Corp. The caption in the heading in its address is HernanCortes St., Cebu City.

In the body, it is written as Hernan Cortes St., Mandaue City.

So there seems to be a clerical error.

Q: Will this automatically invalidate the SW for non-compliance of theConstitutional requirement of Particularity of the person to besearched or the things to be seized???

Held:

No. Reviewing the facts and circumstances of what happened in the case, itwas shown that the intention was in Mandaue City, the police officers had noproblem looking for the place in Mandaue City. There is no Hernan Cortes St.

In Cebu City. It is clearly therefore a clerical error that will not automaticallyinvalidate the SW.

Uy v. BIR

Facts:

There are 2 SWs that were actually issued. Apparently, it was for the purposeof correcting the 1stSW.

The 1stSW indicated that the search is for Uy Ching Ho, alias Frank Uy.

Then it was ammended to Uy Ching Ho, alias Frank Uy and Unifish PackingCorp.

Now, is there a defect in that description of that place to be searched?

PRINCIPLE: If the search is not against a particular person, if thesearch is meant only for a particular place, there is no need to writethe name of the owner or occupant of that place. If the name is


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wrongly or mistakenly written, it DOES NOT INVALIDATE THE SW! Solong as the description of the place is sufficient. If the officer, withreasonable effort can ascertain and indentify the place intended to besearched.

Held:

The name therefore of the owner/occupant of the place is irrelevant if thesearch is intended for a partic. place.

Kelnan v. People

Facts:

The SW was issued against a certain Bernard Lim of Room 615, City LandCondominium, South Super Highway, Makati.

The police officers went to 615, but they did not find Bernard Lim. Instead,they find Kelnan and found him to be in possession of illegal drugs. Theyarrested him after they searched his person.

Kelnan questioned the SW as against him because accor. to him, the SWnames only Bernard Lim and not him.

Held:

The intention of the SW is to search for the place owned by Bernard Lim,only that Bernard Lim was not there.

Can they also search Kelnan? He was caught inflagrante delicto.

Thus, the search maybe had in this case, even w/o a SW.

Principle: The name is not relevant in the search to be conducted inthe place and not against a person.


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ARRESTS AND WARRANTS OF ARRESTS

What is arrest?

It is the taking of a person into custody in order that he may be bound to

answer for the commission of an offense.

Sec. 2, Art. 3, 1987 Consti:

Section 2. The right of the people to be secure in their persons, houses,papers, and effects against unreasonable searches and seizures ofwhatever nature and for any purpose shall be inviolable, and no searchwarrant or warrant of arrest shall issue except upon probable cause to bedetermined personally by the judge after examination under oath oraffirmation of the complainant and the witnesses he may produce, andparticularly describing the place to be searched and the persons or thingsto be seized.

NOTE: Now, the Constitutional protection of the persons againstarbitrary arrests is implicit in unreasonable seizures. For after all,arrest is seizure of a person.

Since the Constitutional provision did not distinguish bet. SW andwarrants of arrest, it is implicit also that both SW and WOA have thesame requirement. They must satisfy the same requirements as toprobable cause and particularity of the description, in case of seizure

of the items to be searched and seized; and in case of arrest, thedescription of the person.

So what is PROBABLE CAUSE when it comes to the issuance of a SWor WOA?

Facts and circumstances which would lead a reasonably discreet and prudentman to believe that an offense has been committed by the person sought tobe arrested. 2 things:

a.)An offense has been committedb.)

The person to be arrested is that person who probablycommitted that offense

Discreet and prudent man Man of reasonable caution/ordinarilyprudent and cautious man reference is not to a person w/ a training inlaw, as prosecutors and judges.


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NOTE: A Discreet and prudent manwould refer to that ordinary man inthe street. no requirement for the reasonably prudent man to apply hisknowledge in law. Much less the technicalities involvingevidence/presentation of evidence. What is required here is COMMONSENSE!

*To determine probable cause, there is no need to use the technical use ofevidence or knowledge of law must be applied. Same also w/ the case ofthe issuance of a WOA.

OVERVIEW OF THE CRIMINAL PROCEDURE IN THE PHILIPPINES

1. Starts when there is a COMPLAINT/AFFIDAVIT OF COMPLAINT2. When you recieve a copy of the AFFIDAVIT OF COMPLAINT, say that

your neighbor is charging you for estafa, would that mean that thereis already a criminal case against you? The answer is NO! Becausethat complaint will still undergo investigation, which in the rules we

call, PRELIMINARY INVESTIGATION.3. When there is probable cause to indict you for trial, the prosecutor,

who conducted the preliminary investigation, will file the case beforethe court. Only then you call it INFORMATION, thats the formalcharge. Only will it be docketed as a criminal case against you.

PRELIMINARY INVESTIGATION- is that inquiry or proceeding to determingwhether there is sufficient ground to engender a well-founded belief that a crimehas been committed, and the respondent is probably guilty thereof and should beheld for trial. there is yet NO TRIAL HERE. What is to be determined is WON heshould be held for trial.

Who conducts premilinary investigation?

It is the function of the prosecutor.

NOTE: The prosecutor is under the DOJ. Therefore he does not belong tothe judiciary dept. but rather to the executive dept.

Therefore, the prosecutor is the lawyer for the RP.

The prosecutor must support the accusation b4 he can proceed to the case,

because he is the one who will prove b4 the judge that guilt beyondreasonable doubt of the accused.

At this point, the person subj. of the complaint is not yet called an accused.Hes called a respondent.

He is not an accused because there is no crime, having no charge yet.


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If the investigating prosecutor finds cause to hold the respondent for trial,then he shall prepare the resoln and information. Thereafter, he shall fileit w/ the court.

Q: Through these proceedings, when shall a WOA be issued?

NOTE: The general rule is that, it is the prosecutor (or safe to say, wepresume) who conducted the criminal investigation b4 it is filed b4 thecourt. Because there are instances that there is no prosecutor in the case,and the judge may conduct the preliminary investigation. Thats anexceptional circumstance.

When shall a WOA be issued?

-After the filing of the complaint or information.

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-When the complaint/info. is filed, the judge shall personally evaluate the resolutionof the prosecutor and its supporting evidence. REMEMBER: The prosecutor hasdetermined probable cause to indict the accused or to hold the accused for trial.Theres already the determination by the prosecutor.

-The judge now will have to evaluate the resoln. or info. of the prosecutor,including the supporting evidence.

-After evaluating it, the judge has the ff. options:

a. He may dismiss the case if the evidence on record clearly fails to estab. probablecause; or

b. If he finds probable cause, meaning he agrees w/ the prosecutor, he shall aWOA.

c. In case of doubt of the existence of probable cause, the judge may order theprosecutor to present additional evidence. Rule 112, Sec. 6

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In a CRIMINAL PROCEDURE, preliminary investigation is conducted, agianby the prosecutor, to determine the existence of probable cause of filingthe info. in court.

The duty to determine w/n probable cause exists to hold/indict a personfor trial for a commission of an offense is w/ the prosecution, not thejudge.


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iThe judge comes in only after the complaint/info. has been filed. Onlyafter the prosecutor has determined probable cause to hold the accused fortrial. That is when the judge comes in to determine w/n he could issue theWOA.

NOTE: Under Sec. 6, Rule 112 The judge must satisfy himself of the existence

of probable cause b4 issuing a WOA.

If on the face of the resolution, he finds that there is no probable cause, he willimmediately dismiss the case.

2 KINDS OF PRELIMINARY INQUIRY PRIOR TO TRIAL:

A. DETERMINATION OF PROBABLE CAUSE IN A PRELIMINARYINVESTIGATION PROPER

B. DETERMINATION OF PROBABLE CAUSE IN THE ISSUANCE OF A WOAExplanation :

a.)Inquiry of the determination of probable cause w/n there isreasonable ground to believe that the accused is guilty of the offensecharged. And w/n he should be subjected to the expense, the rigorsand the humiliation and embarassment of trial this is the func. ofthe PROSECUTOR!

b.)Inquiry of w/n a WOA shall be issued. W/n there is probable cause,based on the previous number that we mentioned that will induce areasonable and prudent man to believe that an offense has beencommitted, and the person to be arrested committed it. Thats the

func. of the prosecutor.

NOTE: Based on these proceedings, there is already an initialdetermination of probable cause by the prosecutor.

-When the Consti. requires personal determination of probable cause, it issaid that whether it is for SW or WOA, the issuance of the warrant mustsatisfy the requirement of probable cause. Under the Consti., it requirespersonal determination.

-Personal determination by the judge in the issuance of a WOA takes a diff.

meaning.

Q: When a judge issues a SW, what does personal determination mean?

A: He must himself PERSONALLY conduct the hearing. PERSONALLY ask thewitnesses and the complainants probing questions.


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But here when you say personal determination for the issuance of a WOA,in the case of Soliven v. Makasiar, the SC said that though the Consti.underscores is the exclusive and personal responsibility by the judge tosatisfy himself of the existence of probable cause for the issuance of aWOA. THE JUDGE IS NOT REQUIRED TO PERSONALLY EXAMINE THECOMPLAINANT AND HIS WITNESSES.

So what is required of the judge?

Webb v. De Leon

Facts:

The accused assiled the issuance of a WOA by the judge by saying that the judgedid not personally determineprobable cause for the issuance of a WOA becausethe accused contends that after the filing of the complaint/info. before the judge, in

just a few hours/ an hour, the judge already issued a WOA.

According to him, under the rules, w/in 10 days from the filing of thecomplaint/info., the judge may issue the WOA.

Here its just a matter of an hour.

Held:

There is no violation by the judge. We stressed the b4 issuing the WOA, judgesmerely determine personally the probability and not the certainty of guilt by theaccused. The judges do not conduct a de novo hearing to determine the existence

of probable cause in the issuance of a WOA.

They just personally review the initial determination of the prosecutor findingprobable cause to say it is supported by substantial evidence.

This is dictated by sound policy. Since there was already an initialdetermination by the prosecutor, he already determined probable causebased on the documents submitted by the complainant. He already askedhe respondent to file his counter-affidavit and supporting documents.Otherwise, judges will be unduly laden w/ preliminary investigations incriminal complaints w/c is not his func. Instead of concentrating on the

hearing and deciding cases that are already filed b4 the courts. Its thesame inquiry, so he might as well hear the case and leave thedetermination of probable cause initially w/ the prosecutor.

Is this now a meaningless requirement by the Consti. of the personaldetermination?


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People v. Grey

Facts:

Must the judge personally examine the complainant and his witnesses b4 issuing an

arrest warrant?

Held:

No. What the law requires of the personal determination on the part of the judge isthat he should not rely solely on the resolution/info./certification by the fiscal thatthere is probable cause that a crime has been committed and the accused isprobably guilty thereof.

He should not rely solely on the findings of the prosecutor. The judge is stillrequired to review not only the certification by the prosecutor, but also theattaching documents; that means the affidavit complaint, the evidence/documents

in support of that complaint, the counter-affidavit, the supporting documents of therespondent, even the transcript of stenographic notes, the judge must revieweverything in the records.

In this case, it is not indispensable, personal examination, like in thenature of the issuance of a SW, is not indispensable in the issuance of aWOA.

Lim v. Felix

Facts:

This is a case involving Moises Espinosa w/c is a well-known political personality inMasbate. The crime was committed in Masbate but because of his personality or hisnotoreity or hes famous, the venue was transferred to Makati. So when it wastransferred to Makati, the judge merely recieved the info. and the certification thatthere is probable cause to hold the accused for trial. The judge in Makatiimmediately issued the WOA.

Now it appears that that was the only document forwarded to the judge in Makati.All of the rest of the records of the case were still in Masbate.

Therefore, what happened in the issuance of the WOA?

Apparently, the judge merely relied on the certification/info. by the prosecutor.

Held:

That does not comply w/ the constitutional requirement of personal determination.


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The ruling in Soliven v. Makasiar has been reiterated that the judge does notpersonally have to examine the complainant and his witnesses, the prosecutor canperform the same func. However, there should be a report and necessarydocuments supporting the prosecutors bare certification.

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The preliminary investigation will determine probable cause whether a personshould be held for trial for the commission of an offense is the func. of theprosecutor. Its an executive func.

The preliminary inquiry to determine probable cause whether a WOA shouldbe issued is the func. of the judge like the issuance of SWs This is ajudicial func.

NOTE: The findings of the prosecutor does not bind the judge. The judgeshould still go over the documents and personally review it himself.

To personally determine the existence of probable cause, the judge coulddo either of 2 ways:

a.) He can personally evaluate the reports and documentssubmitted by the fiscal/prosecutor; or

b.) Disregard the report and require the submission of additionalor supporting affidavit or evidence.

Q: Why personal determination diff. in case of a SW than in a WOA?

A: In SW, in the personal determination is that the judge must ask the

question himself. This cannot be done in the issuance of SWs. Becauseunlike SWs, which are relatively pure and far between and there is noduplication of work. Remember in the issuance of SW, you have to file itdirectly to the judge. Now when it comes to the issuance of a WOA, there isalready duplication because the prosecutor makes the initial determinationof probable cause. That is why by reason of policy of practicality and soundpolicy, there is no need for the judge to personally ask probing questionsb4 the applicant and his witnesses.

ISSUANCE OF A SW ISSUANCE OF A WOA

With regard to probable cause...

1. 2 conclusions must be supportedby substantial evidence. theremust be substantial evidence toshow probable cause.

First is that, the itemssought are in fact seizable

1. There must be a probable causethat a crime has been committedand that the person to be arrestedcommitted it.


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by virtue of it being

connected w/ a criminalactivity Remember that ifthere is no offense, there isno probable cause to issue

the SW. Second, that the items will

be found in the place to besearched during theapplication for SW.

2. There is no need to name theowner of the place to besearched/ owner of the things tobe seized

As to procedure...

3. The procedure to be followed isprovided in Rule 126 by that wemean, personal determination bythe judge, he must ask probingquestions, the probing questionsmust be in writing and thecomplainant and the witnessesmust be under oath oraffirmation, and all these must bein the records of the case.

4. It requires personal determinationby the judge as to the existenceof probable cause.

2. There is no need of any showingthat evidence of the crime will befound @ the premises under thepersons control because youare not looking for the things, youare arresting a person.

3. Sec. 6, Rule 122 simply providesthat upon filing of an information,the court may then issue awarrant for the arrest of theaccused automatic; howeverthere is still that personaldetermination of probable cause

4. The judge is not required topersonally examine thecomplainant and his witnesses,only that he must personallyreview the certification and thesupporting documents of theprosecutor.

Abdula v. Guiani

Facts:

This is a murder case. The accused filed a petition for certiorari claiming that theWOA issued is null and void because the judge did not personally examine theevidence, nor did he call on the complainants and his witnesses in the face of theirincredible accounts.


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Now, there is no need for personal determination, there is no need to call thewitnesses. But when the judge made his comment to the certiorari/petition, the

judge said, there was no reason for him to doubt the validity of the certificationmade by the prosecutor. When the preliminary investigation was conducted and the

probable cause was found to exist, as against those charged in the info. filed.

Held:

In this case, there was an admission by the judge that he merely relied on thecertification of the prosecutor, which falls short of compliance of the constitutionalrequirement of personal determination of probable cause.

Here, the warrant is invalid!

Talingdan v. Eduarte

Facts:

Upon the filing of the complaint for libel directly with the RTC, which should be filedfirst w/ the prosecutor.

The judge then issued a WOA to the accused.

It appears that there was no preliminary investigation that was conducted.

The judge said, he merely signed the warrant filed by his clerk.

Held:

The judge fails in his duty of he relies merely relied on the info. of the investigatingofficer as to the existence of probable cause, and he may be held administrativelyliable. More so, when in this case there was not even an info. or certification to relyon. He relied not on the prosecutor but on his clerk. It was his clerk who issued theWOA.

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Now there are instances where the issuance of the WOA may not benecessary; or circumstances w/c makes it impossible to obtain a WOA.

Justified by exigency or lack of time in obtaining a WOA, certain instancesof valid warrantless arrests are recognized in this judrisdiction. These aresummarized in Rule 113, Sec. 5, Sec. 13; Rule 114, Sec. 23.


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To summarize these rules, these are the instances of valid warrantlessarrests:

Section 5.Arrest without warrant; when lawful. A peace officer or a privateperson may, without a warrant, arrest a person:

(a) When, in his presence, the person to be arrested has committed, isactually committing, or is attempting to commit an offense; inflagrante delicto/caught in the act

(b) When an offense has just been committed, and he has probable cause tobelieve based on personal knowledge of facts or circumstances that theperson to be arrested has committed it; and

(c) When the person to be arrested is a prisoner who has escaped from apenal establishment or place where he is serving final judgment or istemporarily confined while his case is pending, or has escaped while being

transferred from one confinement to another.

In cases falling under paragraph (a) and (b) above, the person arrested without awarrant shall be forthwith delivered to the nearest police station or jail and shall beproceeded against in accordance with section 7 of Rule 112. (5a)

Section 13.Arrest after escape or rescue.

(d) If a person lawfully arrested escapes or is rescued, any person mayimmediately pursue or retake him without a warrant at any time and in any placewithin the Philippines. (13)

Section 23.Arrest of accused out on bail.

(e) For the purpose of surrendering the accused, the bondsmen may arresthim or, upon written authority endorsed on a certified copy of the undertaking,cause him to be arrested by a police officer or any other person of suitable age anddiscretion.

An accused released on bail may be re-arrested without the necessity of a warrantif he attempts to depart from the Philippines without permission of the court wherethe case is pending. (23a)

Not only is a peace officer allowed to make a warrantlessarrest, under these circumstances, but even private persons.

NOTE: c, d and e relates to escaped prisoners.

Q: Why does jurisprudence allow valid warrantless arrests under thesecircumstances?


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People v. Malasugui

Held:

To hold that no criminal can in any case be arrested and searched of evidence and

tokens of his crime w/o a warrant will be to leave society to a large extent at themercy of the shrewdest, the most expert and the most deprave of criminals,facilitating their escape in many instances.

NOTE: What we are talking here is to understand this in the context ofTime is of the element. Time is crucial! But where there is sufficienttime to obtain a SW, these instances of warrantless arrests cannot bevalidated!

IN FLAGRANTE DELICTO CASES When in his presence the person to be

arrested has committed, is actually committing or is attempting to commitan offense.

*Take note of the phrase When in his presence. What do we understandw/ this? The arresting person is a WITNESS to the commission of theoffense, whether the person to be arrested has committed, is actuallycommitting or is attempting to commit an offense!

BOTTOMLINE: The arresting person is a witness to the commission of theoffense.

LONG STANDING RULE: Reliable info. alone is not sufficient to justifywarrantless arrest under these circumstance. Why? bcoz it has to becommitted in his presence. The arresting officers must have personalknowledge of the facts indicating that the person to be arrested hadcommitted, was committing or is about to commit an offense. Also the rulerequires that the accused perform some OVERT ACT that would indicatethat the person to be arrested has committed, is actually committing or isattempting to commit an offense.

Usually in drugs cases, police officers, apparently in our set-up here is w/ the PDEA,they will hire an agent that will pose as buyer, usually an ex-addict, supposedly

who will transact w/ the seller of the drugs, and then they will conduct a buy-bustoperation.

People v. Racho

Facts:


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The agent made an arrangement w/ the seller of the drugs.

The police officers positioned themselves on the stated date and time when theaccused would come in by bus, that was the following day. When the accusedalighted from the bus, the confidential agent told the police officers, Hes the onewhom Ive talkedon the phone. He pointed to the person whom he transacted w/.

Having alighted from the bus, the accused stood near the highway and awaited fora tricycle. The accused is about to board the tricycle when the team approachedhim and invited him to the police station.

Now, first thing that we need to know is an invitation by the police for the purposeof an investigation is already an arrest. Now you relate that in the context of theBinay incident, wherein Binays camp said that they merely invited the securityguards for the police to determine w/n their firearms were licensed. Its alreadyin the context of an arrest.

So the accused was invited to the police station. The accused immediately deniedthe accusation. What does he do? He placed his hands into his pocket. A whiteenvelope slipped therefrom w/c hand-opened a small sachet containing thesuspected drugs.

Is the shabu admissible?

Before answering that, the first question is, was the arrest valid? Again, reliableinfo. alone is not sufficient the police must PERSONALLY know that the crime hasbeen committed. The rule also requires that the accused performs some OVERTACT! What happened here is, na-atat ang police. Nagmadali sila.

What was the accused doing at the time they invited him to the police station?Waiting for a tricyle. He was just about to board the tricycle.

Held:

There was NO OVERT ACT to show that he has committed an offense. They onlyknew that he was carrying shabu because of some reliable info. which is notacceptable in these cases.

So that was an INVALID WARRANTLESS ARREST and therefore an INVALID

WARRANTLESS SEARCH.

People v. Bolasa

Facts:

The police was tipped from an anonymous caller that a certain man and a womanwere coming w/ drugs at a certain house in Valenzuela. So the police went to the


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place. He peeped inside thru a window and saw a man and a woman repackinginside the suspected marijuana.

He immediately went inside and hold an arrest and searched and seized themarijuana.

Is the arrest valid?

Held:

1.)He only knew that an offense has been committed because of a reliableinformation. this is not actually a caught in the act case. He deliberatelywent to the place because of an information. What does the rules requirehere? He must a SW or a WOA. Even the PDEA officers b4 they apply for SW,they conduct surveillance even if they already saw that there was repackingof illegal drugs. But why would they not just barge in and arrest the accused?Bcoz the rules require that they must first obtain a SW or if they want to

make an arrest they must first obtain a WOA.

Now we know that a WOA can only be obtained when there is already a casefiled b4 the court.

People v. Kimura

Facts:

There was a buy-bust operation. The police was able to arrest one of the accusedand while he was waiting for his companions, one of them was arrested and the

others were able to escape.

2 days after, these accused who escape 2 nights b4 was seen in a restaurant eatingw/ his friends. The police came in to arrest him.

Q: Is this in flagrante delicto case?

Held:

No. He was not committing or attempting to commit an offense in their presence.He was eating in a restaurant!

What about that 2 days b4 the policemen saw him carrying the drugs and selling it?

That was 2 days ago. It does not qualify under in flagrante delicto.

Because it happened 2 days ago, there is reasonable time for them to abtain aWOA.


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It is already not time is of the essence. Unlike kng ngayon mo cya nakita, then it istime is of the essence. Alangan nman nakita mo na cya nag-commit ng offensepunta ka muna sa judge. So in that case a valid warrantless arrest may be had.

HOT PURSUIT CASES when an offense has just been committed and hehas probable cause to believe based on his personal knowledge of the facts

and circumstances that the person to be arrested has committed it.

Now this exceptional circumstance warrantless arrest can be effected when:

1.)An offense has just have been committed.2.)The person making the arrest has personal knowledge of the facts indicating

that the person to be arrested has committed it.

What is the difference w/ this frim in flagrante delicto cases? Here, the offense hasbeen committed not in his presence but the offense has just beencommitted.

So what do you mean that an offense has just been committed?

Jurisprudence require that there must be a large measure of _____between the offense has been committed and the time of the arrest.

People v. Gerente

Facts:

The victim was killed at around 2 pm. There was immediately a report made to thepolice so the police immediately at around 4 pm went to the hospital, and therethey personally saw the victim dead and his skull was fractured. They went to theplace where the incident happened and they found piece of wood w/ blood stainsand hollowblock and 2 remnants of marijuana cigars. There was also an eyewitnesswho pointed to her neighbor, the accused as one of the assailants.

Has the offense been just been committed?

Take note, the offense has been committed 2pm, the police went to the place 4pm

and 5pm they arrested the accused. only 3 hrs have lapsed.

Held:

The offense has just been committed. The warrantless arrest may be effected.


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Prudente v. Malulu

Facts:

The victim was stabbed and shot around 1am. The arrest and consequent search

and seizure came around 7pm. After the investigation, it pointed to the accused asthe assailant.

18 hrs have lapsed.

Held:

It does not qualify that an offense has just been committed. There is a period oftime to obtain a WOA.

People v. Olivares

Facts:

The deceased body of the victim was found in Dec. 26. After investigation, 2 daysafter, or on Dec. 28, the police arrested the accused w/o a warrant.

Held:

While 18 hrs. has not qualified, much more w/ 2 days.

People v. Del Rosario

Facts:

The robbers snatched the bag of the woman and thereafter they boarded a tricycle.That happened @ 6pm. Another tricycle driver recognized the accused reported it tothe police.

At lunch time the ff. day, the accused was arrested w/o a warrant.

17 hrs. had lapsed.

Held:

No. the offense has not just been committed.

People v. Posadas

Facts:


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Students of UP were arrested after some students were killed in a rumble betweenfraternities. The arrest was made 2 days after.

Held:

It is not sufficient.

So far in the cases discussed, it is only up to 3 hrs.

OBSERVATION: As long as their is no reasonable opportunity toapply/obtain a WOA. But if under the circumstances there is reasonableopportunity to apply WOA, then this case should not apply.


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