history on warrantless arrest; changes under the present rules; discussion about section 5(b) Rule 113

I. Brief history on warrantless arrests

The organic laws of the Philippines, specifically, the Philippine Bill of 1902,19 and the 1935,20 197321 and 198722Constitutions all protect the right of the people to be secure in their persons against unreasonable searches and seizures. Arrest falls under the term "seizure. "23

This constitutional mandate is identical with the Fourth Amendment of the Constitution of the United States. The Fourth Amendment traces its origins to the writings of Sir Edward Coke24 and The Great Charter of the Liberties of England (Magna Carta Libertatum), sealed under oath by King John on the bank of the River Thames near Windsor, England on June 15, 1215.25 The Magna Carta Libertatum limited the King of England's powers and required the Crown to proclaim certain liberties26 under the feudal vassals' threat of civil war.27 The declarations in Chapter 29 of the Magna Carta Libertatum later became the foundational component of the Fourth Amendment of the United States Constitution.28 It provides:

No freeman shall be taken, or imprisoned, or be disseised29 of his Freehold, or Liberties, or free Customs, or be outlawed, or exiled, or any otherwise destroyed; nor will we not pass upon him, nor condemn him, but by lawful Judgment of his Peers, or by the Law of the Land, We will sell to no man, we will not deny or defer to any man either Justice or Right.30 [Emphasis supplied]

In United States v. Snyder,31 the United States Supreme Court held that this constitutional provision does not prohibit arrests, searches and seizures without judicial warrant, but only those that are unreasonable.32 With regard to an arrest, it is considered a seizure, which must also satisfy the test of reasonableness.33

In our jurisdiction, early rulings of the Court have acknowledged the validity of warrantless arrests. The Court based these rulings on the common law of America and England that, according to the Court, were not different from the Spanish laws.34 These court rulings likewise justified warrantless arrests based on the provisions of separate laws then existing in the Philippines.35

In 1905, the Court held in The United States v. Wilson36 that Section 3737 of Act No. 183, or the Charter of Manila, defined the arresting officer's power to arrest without a warrant, at least insofar as the City of Manila was concerned.

In The United States v. Vallejo, et al.,38 the Court held that in the absence of any provisions under statutes or local ordinances, a police officer who held similar functions as those of the officers established under the common law of England and America, also had the power to arrest without a warrant in the Philippines.

The Court also ruled in The United States v. Santos39 that the rules on warrantless arrest were based on common sense and reason.40 It further held that warrantless arrest found support under the then Administrative Code41 which directed municipal policemen to exercise vigilance in the prevention of public offenses.

In The United States v. Fortaleza,42 the Court applied Rules 27, 28, 29 and 3043 of the Provisional Law for the Application of the Penal Code which were provisions taken from the Spanish Law.

These rules were subsequently established and incorporated in our Rules of Court and jurisprudence. Presently, the requirements of a warrantless arrest are now summarized in Rule 113, Section 5 which states that: Section 5. Arrest without warrant; when lawful. - A peace officer or a private person may, without a warrant, arrest a person:

(a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense;

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

(c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or is temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another.

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

A warrantless arrest under the circumstances contemplated under Section 5(a) above has been denominated as one "in flagrante delicto," while that under Section 5(b) has been described as a "hot pursuit" arrest.44

For purposes of this case, we shall focus on Section 5(b) – the provision applicable in the present case. This provision has undergone changes through the years not just in its phraseology but also in its interpretation in our jurisprudence.

We shall first trace the evolution of Section 5(b) and examine the applicable American and Philippine jurisprudence to fully understand its roots and its appropriate present application.

II. Evolution of Section 5(b), Rule 113

A. Prior to the 1940 Rules of Court

Prior to 1940, the Court based its rulings not just on American and English common law principle on warrantless arrests but also on laws then existing in the Philippines. In Fortaleza,45 the Court cited Rule 28 of the Provisional Law for the Application of the Penal Code which provided that:

Judicial and administrative authorities have power to detain, or to cause to be detained, persons whom there is reasonable ground to believe guilty of some offense. It will be the duty of the authorities, as well as of their agents, to arrest:

First. Such persons as may be arrested under the provisions of rule 27.

Second. A person charged with a crime for which the code provides a penalty greater than that of confinamiento.

Third. A person charged with a crime for which the code provides a penalty less than that of confinamiento, if his antecedents or the circumstances of the case would warrant the presumption that he would fail to appear when summoned by the judicial authorities.

The provisions of the preceding paragraph shall not apply, however, to a defendant who gives sufficient bond, to the satisfaction of the authority or agent who may arrest him, and who it may reasonably be presumed will appear whenever summoned by the judge or court competent to try him.

Fourth. A person coining under the provisions of the preceding paragraph may be arrested, although no formal complaint has been filed against him, provided the following circumstances are present:

First. That the authority or agent had reasonable cause to believe that an unlawful act, amounting to a crime had been committed.

Second. That the authority or agent had sufficient reason to believe that the person arrested participated in the commission of such unlawful act or crime." [Emphasis and underscoring supplied]

In the same decision, the Court likewise cited Section 3 7 of the Charter of Manila, which provided that certain officials, including police officers may, within the territory defined in the law, pursue and arrest without warrant, any person found in suspicious places or under suspicious circumstances, reasonably tending to show that such person has committed, or is about to commit any crime or breach of the peace.

In Santos,46 the Court cited Miles v. Weston,47 which ruled that a peace officer may arrest persons walking in the street at night when there is reasonable ground to suspect the commission of a crime, although there is no proof of a felony having been committed.

The Court ruled in Santos that the arresting officer must justify that there was a probable cause for an arrest without a warrant. The Court defined probable cause as a reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves as to warrant a reasonable man in believing that the accused is guilty. Besides reasonable ground of suspicion, action in good faith is another requirement. Once these conditions are complied with, the peace officer is not liable even if the arrested person turned out to be innocent.

Based on these discussions, it appears clear that prior to the 1940 Rules of Court, it was not necessary for the arresting officer to first have knowledge that a crime was actually committed. What was necessary was the presence of reasonably sufficient grounds to believe the existence of an act having the characteristics of a crime; and that the same grounds exist to believe that the person sought to be detained participated in it. In addition, it was also established under the old court rulings that the phrase "reasonable suspicion" was tantamount to probable cause without which, the warrantless arrest would be invalid and the arresting officer may be held liable for its breach.48

In The US. v. Hachaw,49 the Court invalidated the warrantless arrest of a Chinaman because the arresting person did not state in what way the Chinaman was acting suspiciously or the particular act or circumstance which aroused the arresting person's curiosity.

It appears, therefore, that prior to the establishment in our Rules of Court of the rules on warrantless arrests, the gauge for a valid warrantless arrest was the arresting officer's reasonable suspicion (probable cause) that a crime was committed and the person sought to be arrested has participated in its commission. This principle left so much discretion and leeway on the part of the arresting officer. However, the 1940 Rules of Court has limited this discretion.

B. The 1940 Rules of Court
(Restricting the arresting
officer's determination of
probable cause)

Rules 27 and 28 of the Provisional Law for the Application of the Penal Code were substantially incorporated in Section 6, Rule 109 of the 1940 Rules of Court as follows:50

SEC. 6. Arrest without warrant - When lawful. - A peace officer or a private person may, without a warrant, arrest a person:

(a) When the person to be arrested has committed, is actually committing, or is about to commit an offense in his presence;

(b) When an offense has in fact been committed, and he has reasonable ground to believe that the person to be arrested has committed it;

(c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another. [Emphasis and underscoring supplied]

These provisions were adopted in toto in Section 6, Rule 113 of the 1964 Rules of Court. Notably, the 1940 and 1964 Rules have deviated from the old rulings of the Court. Prior to the 1940 Rules, the actual commission of the offense was not necessary in determining the validity of the warrantless arrest. Too, the arresting officer's determination of probable cause (or reasonable suspicion) applied both as to whether a crime has been committed and whether the person to be arrested has committed it.

However, under the 1940 and the 1964 Rules of Court, the Rules required that there should be actual commission of an offense, thus, removing the element of the arresting officer's "reasonable suspicion of the commission of an offense." Additionally, the determination of probable cause, or reasonable suspicion, was limited only to the determination of whether the person to be arrested has committed the offense. In other words, the 1940 and 1964 Rules of Court restricted the arresting officer's discretion in warrantless arrests under Section 6(b), Rule 113 of the 1964 Rules of Court.

C. The more restrictive 1985 Rules of Criminal Procedure

Section 6, Rule 113 of the 1964 Rules of Court again underwent substantial changes and was re-worded and re-numbered when it became Section 5, Rule 113 of the 1985 Rules of Criminal Procedure, to wit:

Sec. 5. Arrest without warrant; when. lawful. - A peace officer or a private person may, without a warrant, arrest a person:

(a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense;

(b) When an offense has in fact just been committed, and he has personal knowledge of facts indicating that the person to be arrested has committed it; and

(c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another. In cases falling under paragraphs (a) and (b) hereof, the person arrested without a warrant shall be forthwith delivered to the nearest police station or jail, and he shall be proceeded against in accordance with Rule 112, Section 7. [Emphasis and underscoring supplied]

As amended, Section 5(b ), Rule 113 of the 1985 Rules of Court retained the restrictions introduced under the 1964 Rules of Court. More importantly, however, it added a qualification that the commission of the offense should not only have been "committed" but should have been "just committed." This limited the arresting officer's time frame for conducting an investigation for purposes of gathering information indicating that the person sought to be arrested has committed the crime.

D. The Present Revised Rules of Criminal Procedure

Section 5(b ), Rule 113 of the 1985 Rules of Criminal Procedure was further amended with the incorporation of the word "probable cause" as the basis of the arresting officer's determination on whether the person to be arrested has committed the crime.

Hence, as presently worded, Section 5(b), Rule 113 of the Revised Rules of Criminal Procedure provides that:

When an offense has just been committed, and he has probable cause to believe based on personal knowledge of facts or circumstances that the person to be arrested has committed it.

From the current phraseology of the rules on warrantless arrest, it appears that for purposes of Section S(b ), the following are the notable changes: first, the contemplated offense was qualified by the word "just," connoting immediacy; and second, the warrantless arrest of a person sought to be arrested should be based on probable cause to be determined by the arresting officer based on his personal knowledge of facts and circumstances that the person to be arrested has committed it.

It is clear that the present rules have "objectified" the previously subjective determination of the arresting officer as to the (1) commission of the crime; and (2) whether the person sought to be arrested committed the crime. According to Feria, these changes were adopted to minimize arrests based on mere suspicion or hearsay.51

As presently worded, the elements under Section 5(b), Rule 113 of the Revised Rules of Criminal Procedure are: first, an offense has just been committed; and second, the arresting officer has probable cause to believe based on personal knowledge of facts or circumstances that the person to be arrested has committed it.

For purposes of this case, we shall discuss these elements separately below, starting with the element of probable cause, followed by the elements that the offense has just been committed, and the arresting officer's personal knowledge of facts or circumstances that the person to be arrested has committed the crime.

i) First Element of Section 5(b), Rule 113 of the Revised Rules of Criminal Procedure: Probable cause

The existence of "probable cause" is now the "objectifier" or the determinant on how the arresting officer shall proceed on the facts and circumstances, within his personal knowledge, for purposes of determining whether the person to be arrested has committed the crime.

i.a) U.S. jurisprudence on probable cause in warrantless arrests

In Payton v. New York,52 the U.S. Supreme Court held that the Fourth Amendment of the Federal Constitution does not prohibit arrests without a warrant although such arrests must be reasonable. According to State v. Quinn,53 the warrantless arrest of a person who was discovered in the act of violating the law is not a violation of due process.

The U.S. Supreme Court, however indicated in Henry v. United States54 that the Fourth Amendment limited the circumstances under which warrantless arrests may be made. The necessary inquiry is not whether there was a warrant or whether there was time to get one, but whether at the time of the arrest probable cause existed. The term probable cause is synonymous to "reasonable cause" and "reasonable grounds."55

In determining the existence of probable cause, the arresting officer should make a thorough investigation and exercise reasonable judgment. The standards for evaluating the factual basis supporting a probable cause assessment are not less stringent in warrantless arrest situation than in a case where a warrant is sought from a judicial officer. The probable cause determination of a warrantless arrest is based on information that the arresting officer possesses at the time of the arrest and not on the information acquired later.56

In evaluating probable cause, probability and not certainty is the determinant of reasonableness under the Fourth Amendment. Probable cause involves probabilities similar to the factual and practical questions of everyday life upon which reasonable and prudent persons act. It is a pragmatic question to be determined in each case in light of the particular circumstances and the particular offense involved.57

JOEY M. PESTILOS, DWIGHT MACAPANAS, MIGUEL GACES, JERRY FERNANDEZ and RONALD MUNOZ,Petitioners, vs. MORENO GENEROSO and PEOPLE OF THE PHILIPPINES, SECOND DIVISION,G.R. No. 182601 ,November 10, 2014