riano crim 2 no edit

Appeals under Rule 43 and Rule 45
1.	From the Office of the President, the aggrieved party may file an appeal with the Court of Appeals pursuant to Rule 43. Under Sec. 1 of Rule 43, the final orders or resolutions of the Office of the President is appealable to the Court of Appeals by filing a verified petition for review following the procedure set by Sec. 5 and 6 of Rule 43.
2.	The party aggrieved by the judgment, final order or resolution of the Court of Appeals may avail of an appeal by certiorari (petition for review on certiorari) to the Supreme Court under Rule 45.
Records supporting the information or complaint filed in court
1.	It is not only the complaint or the information that is filed in court. The rule requires in the clearest of terms that an information or complaint filed in court shall be supported by the affidavits and counter-affidavits of the parties and their witnesses, together with the other supporting evidence and the resolution on the case (Sec. 7[a], Rule 112, Rules of Court).
2.	The record of the preliminary investigation shall not form part of the record of the case. This rule applies not only to the preliminary investigation conducted by the prosecutor but also to a preliminary investigation made by other officers as may be authorized by law. Although not part of the record of the case, the court, on its own initiative or on motion of any party, may order the production of the record or any of its part when the court considers it necessary in the resolution of the case or any incident therein, or when it is introduced as an evidence in the case by the requesting party (Sec. 7[b], Rule 112, Rules of Court).
Action of the judge upon the filing of the complaint or information
1.	Within ten (10) days from the filing of the complaint or information, the judge shall personally evaluate the reso
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lution of the prosecutor. In conducting the evaluation of the resolution, the judge shall look into its supporting evidence (Sec. 5, Rule 112, Rules of Court).
2.	The judge may make some findings after personally evaluating the resolution of the prosecutor. The judge may find that the evidence (a) fails to establish probable cause; (b) establishes probable cause; or (c) engenders a doubt as to the existence of probable cause.
If the evidence on record clearly fails to establish probable cause, the judge may immediately dismiss the case.
If he finds probable cause, he shall issue a warrant of arrest. If a complaint or information was already filed pursuant to a lawful warrantless arrest under Sec. 6 of Rule 112, the court shall issue a commitment order instead of a warrant of arrest. The same rule applies if the accused has already been arrested pursuant to a warrant previously issued.
In case the judge doubts the existence of probable cause, the judge may order the prosecution to submit additional evidence within five (5) days from notice. The issue must be resolved by the court within thirty (30) days from the filing of the complaint or information (Sec. 5, Rule 112, Rules of Court as amended by AM. 05-08-26-SC, August 30,2005).
3.	Jurisprudence reiterates the rule thus: The options available to the RTC upon the filing of an information before it by the public prosecutor or any prosecutor of the Secretary of Justice, are the following: (1) dismiss the case if the evidence on record clearly failed to establish probable cause; (2) if the RTC finds probable cause, issue a warrant of arrest; and (3) in case of doubt as to the existence of probable cause, order the prosecutor to present additional evidence within 5 days from notice, the issue to be resolved by the court within thirty (30) days from the filing of the information. The Supreme Court held that dismissal of the case by the RTC judge in a case did not amount to grave abuse of discretion. Rather, it clearly showed his compliance with his duty to personally evaluate the resolution of the prosecutor and its supporting evidence
(Elvira O. Ongv. Jose Casim Genio, G.R. No. 182336, December 23, 2009).
When warrant of arrest is not necessary
1.	A warrant of arrest is not required in the following instances:
(a)	When a complaint or information has already been filed pursuant to a lawful warrantless arrest, i.e., if the accused is already under detention and was lawfully arrested without a warrant and a complaint or information has been filed pursuant to Sec. 6, Rule 112 (Sec. 5[c], Rule 112, Rules of Court); also when a warrant has already been issued by the MTC judge pursuant to Sec. 5[b] of Rule 112 and the accused is already detained (Sec. 5(c), Rule 112).
(b)	When the accused is charged for an offense punishable only by fine (Sec. 5[c], Rule 112); or
(c)	When the case is subject to the Rules on Summary Procedure (Sec. 16, 1991 Rule on Summary Procedure).
2.	It is within the discretion of the judge to issue a warrant for the arrest of an accused in a criminal case. A judge is required to personally evaluate the resolution of the prosecutor and its supporting evidence. He may immediately dismiss the case if the evidence on record clearly fails to establish probable cause. However, if he finds probable cause, then he is mandated by law to issue such warrant. While before it was mandatory for the investigating judge to issue a warrant for the arrest of the accused if he found probable cause, the rule is that the investigating judge's power to order the arrest of the accused is limited to instances in which there is a necessity for placing him in custody "in order not to frustrate the ends of justice." The arrest of the accused can be ordered only in the event that the prosecutor files the case and the judge of the RTC finds probable cause for the issuance of the warrant of arrest (Pangan v. Ganay, 445 SCRA 574 citing Concerned Citizens of Maddela v. De la Torre-Yadao, 39&SCRA 217).
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Withdrawal of the information already filed in court (Bar 1990; 2003)
1.	In Crespo v. Mogul, 151 SCRA 462, the issue raised is whether the trial court acting on a motion to dismiss a criminal case filed by the Provincial Fiscal upon instructions of the Secretary of Justice to whom the case was elevated for review, may refuse to grant the motion and insist on the arraignment and trial on the merits.
Grappling with the issue, the Court unequivocally held that the rule in this jurisdiction is that once a criminal complaint or information is filed in court, any disposition of the case or dismissal or acquittal or conviction of the accused rests within the exclusive jurisdiction, competence, and discretion of the trial court. Although the fiscal retains the direction and control of the prosecution of criminal cases even while the case is already in court, he cannot impose his opinion on the trial court. The trial court is the best and sole judge on what to do with the case before it. The determination of the case is within its exclusive control and competence. A motion to dismiss the case filed by the public prosecutor should be addressed to the court which has the option to grant or deny the same. Crespo likewise ruled that it does not matter if this is done before or after arraignment of the accused or that the motion was filed after a reinvestigation or upon instructions of the Secretary of Justice who reviewed the records of the investigation. The court, in the exercise of its discretion may deny the motion and require that the trial on the merits proceed for the proper determination of the case.
2.	It is vital to bear in mind that in resolving a motion to dismiss the case or to withdraw the information filed by the public prosecutor on his own initiative or pursuant to the directive of the Secretary of Justice, either for insufficiency of the evidence or for lack of probable cause, the trial court should not rely solely on the findings of the public prosecutor or the Secretary of Justice that no crime was committed or that the evidence is insufficient to support a conviction. The triaLeourt must make an independent evaluation or assessment tff the
merits of the case and the evidence on record of the prosecution (Santos v. Orda, Jr., 437 SCRA 504). The dismissal cannot be merely based on the findings of the Secretary of Justice that no crime was committed. Reliance cannot be placed solely on the conclusion of the prosecution that there is no sufficient evidence against the accused. The grant of the motion to dismiss cannot be based upon considerations other than the judge's own and personal conviction that there was no case against the accused. In other words, the judge himself must be convinced that there was, indeed, no sufficient evidence against the accused, and this conclusion can be arrived at only after an assessment of the evidence in the possession of the prosecution (Martinez v. Court of Appeals, 237 SCRA 575; Gandarosa v. Flores, G.R. No. 167910,17July 2007,527 SCRA 776; Co v. Lim, G.R. Nos. 164669-70, October 30,2009; Harold V. Tamargo v. Romulo Awingan, Lloyd Antiporda and Licerio Antiporda, Jr., G.R. No. 177727, January 19, 2010; Leonardo U. Flores v. Hon. Raul S. Gonzales, G.R. No. 188197, August 3,2010).
3.	The trial court should not rely solely and merely on the findings of the public prosecutor or the Secretary of Justice that no crime was committed (Santos v. Orda, Jr., 437 SCRA 504). The trial court has the option to grant or deny the motion to dismiss filed by the fiscal (Ledesma v. Court of Appeals, 278 SCRA 656).
It may either agree or disagree with the recommendation of the Secretary. Reliance alone on the resolution of the Secretary would be an abdication of the trial court's duty and jurisdiction to determine a prima facie case (Summerville General Merchandising & Co., Inc. v. Eugenio, Jr., G.R. No. 163741, August 7, 2007, 529 SCRA 274).
4.	Once a criminal action has been instituted by the filing of the Information with the court, the latter acquires jurisdiction and has the authority to determine whether to dismiss the case or convict or acquit the accused. Where the prosecution is convinced that the evidence is insufficient to establish the guilt of an accused, it cannot be faulted for
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moving for the withdrawal of the Information. However, in granting or denying the motion to withdraw, the court must judiciously evaluate the evidence in the hands of the prosecution. The court must itself be convinced that there is indeed no satisfactory evidence against the accused and this conclusion can only be reached after an assessment of the evidence in the possession of the prosecution (Ramos v. People, G.R. No. 171565, July 13,2010).
5.	The court must itself be convinced that there is indeed no sufficient evidence against the accused. The judge must not also ignore relevant pieces of evidence necessary to resolve the motion and must look at everything made available to the judge such as affidavits and counter-affidavits, documents or evidence appended to the information, the records of the public prosecutor or any evidence already adduced before the court at the time the motion is filed (Tamargo v. Awingan, G.R. No. 177727, January 19, 2010).
6.	It bears emphasizing that when the trial court grants a motion of the public prosecutor to withdraw the Information in compliance with the directive of the Secretary of Justice, or to deny the said motion, it does so not out of compliance to or defiance of the directive of the Secretary of Justice, but in sound and faithful exercise of its judicial prerogative. The trial court is the best and sole judge on what to do with the case before it. The rule applies to a motion to withdraw the Information or to dismiss the case even before or after the arraignment of the accused. The prior determination of probable cause by the trial court does not in any way bar a contrary finding upon reassessment of the evidence presented before it (Ramos v. People, G.R. No. 171565, July 13,2010).
7.	In a fairly recent case, a motion to withdraw an information filed by the city prosecutor was denied by the trial court. Without moving for a reconsideration of the order denying the motion, the accused filed a petition for mandamus with the Supreme Court to seek a reversal of the order of the trial court. The Court also ruled, as it had done in past cases, that the trial court, when confronted with a motion to withdraw an information on the ground of lack of probable

cause, is not bound by the resolution of the prosecuting arm of the government, but is required to make an independent assessment of the merits of such motion (Hipos, Sr. v. Bay, G.R. No. 174813-15, March 17, 2009;
Baltazar v. Chua, G.R. No. 177583, February 27, 2009).
8.	In Lee v. KC Bank, N.V., G.R. No. 164673, January 15, 2010, the trial court was confronted with a motion to withdraw an information for estafa filed against the respondents. The court granted the motion in an order stating that it had made "an in-depth scrutiny of the arguments raised by the prosecution and private complainant" and that it "finds the contentions of the prosecution to be sufficient and meritorious." An order of this tenor was ruled to be insufficient. The Supreme Court declared the judge must in his order, positively state that the evidence presented against the respondents was insufficient for a prima facie case. It must include a discussion of the merits of the case based on an evaluation or assessment of the evidence on record, look at the basis of the recommendation of the prosecution, and state the reasons for granting the motion to withdraw the information and must embody the assessment in the order.
If these requirements are not complied with, Lee v. KC Bank, N.V., concludes that a dismissal of the case would then be based upon considerations other than the judge's own personal individual conviction that there was no case against the respondents and showed that the trial judge improperly relinquished the discretion that he was bound to exercise.
9.	In another case, the petitioner laments the trial court's denial of the Motion to Withdraw Information filed by the investigating prosecutor due to the latter's finding of lack of probable cause to indict him. He argues that such denial effectively deprived him of his substantive rights.
Still, petitioner's argument fails to persuade. There is nothing procedurally improper on the part of the trial court in disregarding the result of the preliminary investigation it itse]|jordered. Judicial action on the motion rests in the sound exercise of judicial discretion. In denying the motion, the
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trial court just followed the jurisprudential rule laid down in Crespo v. Judge Mogul, 235Phil. 465, that once a complaint or information is filed in court, any disposition of the case as to its dismissal or the conviction or acquittal of the accused rests on the sound discretion of the court (Evangelista v. People, G.R. No. 163267, May 5,2010).
10.	The basic rule is simple: While the Secretary of Justice has the power to alter or modify the resolution of his subordinate and thereafter direct the withdrawal of the case, he cannot, however, impose his will on the court (Dumlao v. Ponferrada, 508 SCRA 426).
11.	In a case on appeal, petitioner argues that the filing of the informations in the MTCC had already removed the cases from the power and authority of the prosecution to dismiss the same in accordance with the doctrine laid down in Crespo v. Mogul (Crespo). In denying the petition, the Supreme Court ruled that Crespo does not foreclose an appeal made of the resolution of a prosecutor in the determination of probable cause notwithstanding that informations had already been filed in court. The Supreme Court clarified that Crespo did not foreclose the power or authority of the Secretary of Justice to review resolutions of his subordinates in criminal cases. The Supreme Court recognized that in Crespo, the action of the investigating fiscal or prosecutor in the preliminary investigation is subject to the approval of the provincial or city fiscal or chief state prosecutor. Thereafter, it may be appealed to the Secretary of Justice. The justice secretary's power of review may still be availed of despite the filing of an information in court (FilemonA. Verzano, Jr. v. Francis Victor D. Paro, G.R. No. 171643, August 8, 2010).
Some judicial pronouncements on preliminary investigation
1. One case (Sierra v. Lopez, A.C. 7549, August 29, 2008) makes important judicial pronouncements on prelimi- nary investigation.
In Sierra the complainant in an administrative case^filed a complaint with the Supreme Court for dereliction of duty and

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gross ignorance of the law against certain prosecutors. The complainant raised the following questions of law: (1) whether the parties must appear together before the investigating prosecutor during preliminary investigation; (2) whether the counter-affidavits of the respondents should be sworn to only before the investigating prosecutor; and (3) whether the investigating prosecutor erred in denying the request of the complainant for clarificatory questioning.
Ruled the Court:
"We find no merit in the complaint. Rule 112, particularly Section 3 of the Rules of Court, lays down the basic procedure in preliminary investigation x x x
"This provision of the Rules does not require a confrontation between the parties. Preliminary investigation is ordinarily conducted through submission of affidavits and supporting documents, through the exchange of pleadings. x x x
"Since confrontation between the parties is not imperative, it follows that it is not necessary that the counter-affidavit of respondent be sworn to before the investigating prosecutor himself. It can be sworn to before another prosecutor. In fact, this is specifically provided in paragraph (c) of Sec. 3, which states that the "counter- affidavit shall be subscribed and sworn to and certified as provided in paragraph (a) of this section x x x;" and paragraph (a), provides: the affidavits shall be subscribed and sworn to before any prosecutor or government official or in their absence or unavailability, before a notary public
xxx.
"Lastly, we hold that the investigating prosecutors did not abuse their discretion when they denied the request of the complainant for the conduct of clarificatory questioning. Under paragraph (e) of Section 3 above, the conduct of clarificatory questioning is discretionary upon the prosecutor. Indeed, we already held in Webb v. De Leon (G.R. Nos. 121245 & 121297, August 23,1995), that the decision to call witnesses for clarificatory questions
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is addressed to the sound discretion of the investigator, and the investigator alone" (Sierra v. Lopez, A.C. 7549, August 29,2008).
2. The principle of estoppel was once applied in a preliminary investigation in the Ombudsman in a much earlier case (Bautista v. Sandiganbayan, G.R. No. 136082 May 12, 2000).
In Bautista, an anonymous, unverified and unsigned let- ter-complaint purportedly emanating from certain named associations, was filed with the Office of the Ombudsman against the petitioner for violation of Sec. 3, par. (e), of R.A. 3019, as amended, otherwise known as the Anti-Graft and Corrupt Practices Act for among others, causing the hiring of one hundred and ninety-two (192) casual employees in the municipal government for political considerations and that the payment of their honoraria and salaries was charged to the peace and order fund despite meager savings of the municipality.
The petitioner was directed to submit his counter-affidavit to the letter-complaint which petitioner did. Thereafter, an information for violation of Sec. 3, par. (e), of R.A. 3019, as amended, was filed against petitioner before the Sandiganbayan. The petitioner assailed the Ombudsman for failing to direct the complainants to reduce their evidence into affidavits before requiring him to submit his counter-affidavit. Petitioner invoked Sec. 4, Rule II, of the Rules of Procedure of the Ombudsman which requires that for purposes of conducting a preliminary investigation, the complainant must submit his affidavit and those of his witnesses before respondent can be required to submit his counter-affidavit and other supporting documents. Conformably with such rule, the petitioner argued that the Ombudsman should have first required the associations to submit their respective affidavits before requiring him as respondent to submit his counter-affidavit, especially since the letter-complaint was unsigned and unverified; hence, there was no valid cause of action against petitioner.
The arguments ofthe petitioner failed to impress the Court. While it was true that he was directed to submit his counter-
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affidavit thereto without requiring the complainants to verify their letter-complaint, however, despite the Ombudsman's noncompliance with the affidavit requirement, the petitioner filed his counter-affidavit and answered the charges against him. Hence, according to the Court, having submitted himself to the jurisdiction of the Ombudsman and having allowed the proceedings to go on until the preliminary investigation was terminated and the information filed at the Sandiganbayan, the petitioner was deemed to have waived whatever right he may otherwise have to assail the manner in which the preliminary investigation was conducted. Consequently, petitioner was likewise estopped from questioning the validity of the information filed before the Sandiganbayan (Bautista v. Sandiganbayan, G.R. No. 136082, May 12, 2000).
3. May a complaint affidavit notarized in a foreign jurisdiction be the basis for a preliminary investigation? This question was answered by the Court in Sasot v. People, G.R. No. 143193, June 29,2005.
The case involved a criminal prosecution against petitioners for unfair competition under Article 189 of the Revised Penal Code, filed before the Regional Trial Court. Petitioners were alleged to be engaged in the manufacture, printing, sale, and distribution of counterfeit "NBA" garment products.
In a Special Power of Attorney the President of NBA Properties, Inc., constituted a local law firm, as the company's attorney-in-fact, to act for and its behalf in the filing of criminal, civil and administrative complaints, among others. The Special Power of Attorney was notarized by a notary public of New York County and certified by the County Clerk and Clerk of the Supreme Court of the State of New York. A Philippine Consul of the Consulate General of the Philippines in New York, authenticated the certification. The company president also executed a Complaint-Affidavit before the same notary public of the State of New York.
Before they entered their pleas, the petitioners moved to quash the information arguing among others, that the fiscal should have dismissed the complaint filed during the
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preliminary investigation because under the rules, the complaint must be sworn to before the prosecutor. The trial court sustained the prosecution and denied petitioners' motion to quash.
The special civil action for certiorari with the Court of Appeals was dismissed. Petitioners sought reconsideration of the dismissal of the petition but the same was likewise denied.
The petition for review on certiorari under Rule 45 of the Rules of Court filed before the Supreme Court now reiterates the argument that the complaint filed is defective and should have been dismissed by the fiscal because it should have been personally sworn to by the complainant before the investigating prosecutor.
The petition was denied by the Supreme Court, which declared emphatically that a complaint is substantially sufficient if it states the known address of the respondent, it is accompanied by complainant's affidavit and his witnesses and supporting documents, and the affidavits are sworn to before any fiscal, state prosecutor or government official authorized to administer oath, or in their absence or unavailability, a notary public who must certify that he personally examined the affiants and that he is satisfied that they voluntarily executed and understood their affidavits. All these have been duly satisfied in the complaint filed before the prosecutor. The Court added that the absence of an oath in the complaint does not necessarily render it invalid. Want of oath is a mere defect of form, which does not affect the substantial rights of the defendant on the merits. Note: The case was decided under Sec. 3 of Rule 112 of the 1985 Rules of Criminal Procedure which has substantially the same provisions as Sec. 3 of Rule 112 of the 2000 Rules of Criminal Procedure.
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Chapter V
ARREST, SEARCH AND SEIZURE
I. ARREST (RULE 113)
Arrest; how arrest made
Law enforcement officers are entrusted with the power to conduct investigations, make arrests, perform searches and seizures of persons and their belongings, and occasionally use lethal force in the line of duty. This authority must be exercised within the boundaries of the law because when officers exceed those boundaries, they jeopardize the admissibility of any evidence collected for prosecution.
1.	An arrest is the taking of a person into custody in order that he may be bound to answer for the commission of an offense (Sec. 1, Rule 113, Rules of Court). Under this definition, a person is arrested for a specific and definite purpose — to make him answer for the commission of an offense.
2.	To make an arrest, a person need not be actually restrained by the person making the arrest. Under the Rules of Court, a submission to the custody of the person making the arrest already constitutes an arrest (Sec. 2, Rule 113, Rules of Court). Whichever means is used to make an arrest, the term necessarily implies control over the person under custody and as a consequence, a restraint on his liberty to the extent that he is not free to leave on his own volition.
3.	Knowing whether or not an arrest has been made is oftentimes crucial to the analysis of the legality of the acts of the arresting officer. For instance, if an arrest has actually
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been made and at the time of the apprehension a crime has already been committed, the arrest may be deemed infirm unless it be based on a probable cause that the person arrested committed the offense. Sec. 5(b) of Rule 113 further requires that the probable cause must be based on the personal know- ledge by the arresting officer of facts and circumstances that the arrestee is indeed the perpetrator of the criminal act. If the act of the officer does not amount to an arrest, the requirements of probable cause and personal knowledge of facts and circumstances will certainly not be prerequisites to the legality of the said act and said act would be reviewed on the basis of some other standards.
As will be seen later, the legality of an arrest is of vital importance when subsequent to the arrest a seizure of evidence follows because the admissibility of the evidence would hinge on the legality of the prior arrest. It is not surprising that most criminal cases reaching the Supreme Court involve prayers for the suppression of evidence obtained after alleged illegal arrests.
Requisites for the issuance of a warrant of arrest
Sec. 2 of Article III (Bill of Rights) of the Constitution of the Philippines in part declares:
"Sec. 2 . . . . no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized."
1. It is constitutionally mandated that a warrant of arrest shall issue only upon finding of probable cause personally determined by the judge after examination under oath or affirmation of the complainant and the witnesses he/ she may produce, and particularly describing the person to be seized (Tabujara III v. People, G.R. No. 175162, October 29, 2008).
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An arrest without a probable cause is an unreasonable seizure of a person, and violates the privacy of persons which ought not to be intruded by the State (Borlongan v. Peha, G.R. No. 143591, May 5, 2010).
Probable cause in connection with the issuance of a warrant of arrest, assumes the existence of facts that would lead a reasonably discreet and prudent man to believe that a crime has been committed and that it was likely committed by the person sought to be arrested. The test for issuing a warrant of arrest is less stringent than that used for establishing the guilt of the accused (People v. Tan, G.R. No. 182310, December 9, 2009). It is such set of facts and circumstances as would lead a reasonably discreet and prudent man to believe that the offense charged in the Information, or any offense included therein, has been committed by the person sought to be arrested. In determining probable cause, the average man weighs the facts and circumstances without resorting to the calibrations of the rules of evidence of which he has no technical knowledge. He relies on common sense. A finding of probable cause needs only to rest on evidence showing that, more likely than not, a crime has been committed and that it was committed by the accused. Probable cause demands more than suspicion; it requires less than evidence that would justify conviction (People v. Gabo, G.R. No. 161083, August 3, 2010).
2. While it seems to appear that the constitution requires the judge to personally examine the complainant and his witnesses under oath by asking searching questions, the case of AAA v. Carbonell, G.R. No. 171465, June 8, 2007, is enlightening.
In AAA v. Carbonell, the petitioner, the alleged victim, assailed the orders of the trial court dismissing the rape case filed against the private respondent for lack of probable cause and another order denying the petitioner's motion for reconsideration. The facts show that after an information for rape was filed with the trial court, the accused filed a motion for the determination of probable cause. The court granted the motion and directed the petitioner and her witnesses to
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take the witness stand. But instead of taking the witness stand, the petitioner filed a motion for reconsideration claiming that the documentary evidence already sufficiently established the existence of probable cause. The petitioner contends that the judge is not required to personally examine the complainant and her witnesses in satisfying himself of the existence of probable cause for the issuance of a warrant of arrest. She argues that the respondent should have taken into consideration the documentary evidence as well as the transcript of stenographic notes which sufficiently established the existence of probable cause.
The respondent judge in his comment submitted to the Highest Court, argued that the finding of probable cause by the investigating prosecutor is not binding or obligatory upon him. He claimed that he was justified in requiring the petitioner and her witnesses to take the witness stand in order to determine probable cause since under Section 2, Article HI of the 1987 Constitution, no warrant of arrest shall issue except upon probable cause "to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce " He contended that the refusal of the petitioner to sit on the stand and be examined negated the existence of probable cause.
The records, as discovered by the Court, disclosed that the respondent judge dismissed the case without evaluating the evidence in support of the resolution of the Assistant Provincial Prosecutor, the convened Panel of Prosecutors, and the Department of Justice which all sustained a finding of probable cause against the accused. The respondent judge's finding of lack of probable cause was premised only on the complainant's and her witnesses' absence during the hearing scheduled by the respondent judge for the judicial determination of probable cause.
The Supreme Court found the respondent to have committed a grave abuse of discretion for dismissing the criminal case on the ground that petitioner and her witnesses failed to comply with his orders to take the witness stand.
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Citing the leading case of Soliven v. Makasiar, G.R. Nos. L-82585, L-82827, November 14, 1988, the Court explained that this constitutional provision does not mandatorily require the judge to personally examine the complainant and her witnesses. Instead, he may opt to personally evaluate the report and supporting documents submitted by the prosecutor or he may disregard the prosecutor's report and require the submission of supporting affidavits of witnesses. The argument that the Constitution now requires the judge to personally examine the complainant and his witnesses in his determination of probable cause for the issuance of warrants of arrest is not an accurate interpretation.
The Court adds:
"What the Constitution underscores is the exclusive and personal responsibility of the issuing judge to satisfy himself of the existence of probable cause. In satisfying himself of the existence of probable cause for the issuance of a warrant of arrest, the judge is not required to personally examine the complainant and his witnesses. Fol- lowing established doctrine and procedure, he shall: (1) personally evaluate the report and the supporting documents submitted by the fiscal regarding the existence of probable cause and, on the basis thereof, issue a warrant of arrest; or (2) if on the basis thereof he finds no probable cause, he may disregard the fiscal's report and require the submission of supporting affidavits of witnesses to aid him in arriving at a conclusion as to the existence of probable cause.
"Sound policy dictates this procedure, otherwise judges would be unduly laden with the preliminary examination and investigation of criminal complaints instead of concentrating on hearing and deciding cases filed before their courts.'Tunderscoring supplied)
We reiterated the above ruling in the case of Webb v. De Leon, 247 SCRA 653, where we held that before issuing warrants of arrest, judges merely determine the probability, not the certainty, of guilt of an accused. In doing so, judges do not conduct a de novo hearing to determine the existence
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of probable cause. They just personally review the initial determination of the prosecutor finding a probable cause to see if it is supported by substantial evidence.
X X X
True, there are cases where the circumstances may call for the judge's personal examination of the complainant and his witnesses. But it must be emphasized that such personal examination is not mandatory and indispensable in the determination of probable cause for the issuance of a warrant of arrest. The necessity arises only when there is an utter failure of the evidence to show the existence of probable cause. Otherwise, the judge may rely on the report of the investigating prosecutor, provided that he likewise evaluates the documentary evidence in support thereof." (underscoring supplied)
Indeed, what the law requires as personal determination on the part of the judge is that he should not rely solely on the report of the investigating prosecutor. In Okabe v. Gutierrez, G.R. No. 150185, May 27, 2004, we stressed that the judge should consider not only the report of the investigating prosecutor but also the affidavit and the documentary evidence of the parties, the counter-affidavit of the accused and his witnesses, as well as the transcript of stenographic notes taken during the preliminary investigation, if any, submitted to the court by the investigating prosecutor upon the filing of the Information. If the report, taken together with the supporting evidence, is sufficient to sustain a finding of probable cause, it is not compulsory that a personal examination of the complainant and his witnesses be conducted, x x x."
3.	Talingdan v. Eduarte, 366 SCRA 559 declares in categorical terms:
"Interpreting the words personal determination ... it does not thereby mean that judges are obliged to conduct the personal examination of the complainant and his witnesses themselves, x x x. Rather what is emphasized merely is the exclusive and personal responsibility of the issuing judge to
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satisfy himself as to the existence of probable cause, x x x. What he is never allowed to do is follow blindly the prosecutor's bare certification as to the existence of probable cause .. (See also Lim, Sr. v. Felix, 194 SCRA 292).
4.	In Borlongan v. Pefia, G.R. No. 143591, May 5,2010, reiterating the case of Soliven v. Makasiar, 167 SCRA 293, it was ruled that the words "personal determination," in the Constitution, does not thereby mean that judges are obliged to conduct the personal examination of the complainant and his witnesses themselves. To require thus would be to unduly laden them with preliminary examinations and investigations of criminal complaints instead of concentrating on hearing and deciding cases filed before them. Rather, what is emphasized merely is the exclusive and personal responsibility of the issuing judge to satisfy himself as to the existence of probable cause. To this end, he may: (a) personally evaluate the report and the supporting documents submitted by the prosecutor regarding the existence of probable cause and, on the basis thereof, issue a warrant of arrest; or (b) if on the basis thereof he finds no probable cause, disregard the prosecutor's report and require the submission of supporting affidavits of witnesses to aid him in determining its existence. What he is never allowed said the Court, is to follow blindly the prosecutor's bare certification as to the existence of probable cause. Much more is required by the constitutional provision. Judges have to go over the report, the affidavits, the transcript of stenographic notes if any, and other documents supporting the prosecutor's certification. Although the extent of the judge's personal examination depends on the circumstances of each case, to be sure, he cannot just rely on the bare certification alone but must go beyond it. This is because the warrant of arrest issues not on the strength of the certification standing alone but because of the records which sustain it. He should even call for the complainant and the witnesses to answer the court's probing questions when the circumstances warrant.
5.	In yet another recent case, respondents questioned the alleged lack of personal determination of probable cause by the judge in issuing the warrants for their arrest. The
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Court explained that the duty of the judge to determine probable cause to issue a warrant of arrest as mandated by Sec. 2, Article HI of the 1987Philippine Constitution does not mandatorily require the judge to personally examine the complainant and her witnesses. Instead, he may opt to personally evaluate the report and supporting documents submitted by the prosecutor or he may disregard the prosecutor's report and require the submission of supporting affidavits of witnesses. What the law requires as personal determination on the part of a judge is that he should not rely solely on the report of the investigating prosecutor. This means that the judge should consider not only the report of the investigating prosecutor but also the affidavit and the documentary evidence of the parties, the counter-affidavit of the accused and his witnesses, as well as the transcript of stenographic notes taken during the preliminary investigation, if any, submitted to the court by the investigating prosecutor upon the filing of the information (People of the Philippines v. Gray, G.R. No. 180109, July 26,2010).
6. If the complaint or information is directly filed with the MTC under Sec. 8(b) of Rule 112 in relation to Sec. 1(b) of Rule 110, the judge shall personally evaluate the evidence or personally examine in writing and under oath the complainant and his witnesses in the form of searching questions and answers.
Preliminary inquiry (examination) versus preliminary investigation
1.	There is a distinction between the preliminary inquiry which determines probable cause for the issuance of a warrant of arrest and the preliminary investigation proper which ascertains whether the offender should be held for trial or be released. The determination of probable cause for purposes of issuing the warrant of arrest is made by the judge. The preliminary investigation proper — whether or not there is reasonable ground to believe that the accused is guilty of the offense charged — is the function of the investigating prosecutor (AAA v. Carbonell, G.R. No. 171465, June 8,2007).
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2.	A more recent case supports the declarations in AAA v. Carbonell and holds that "it is well to remember that there is a distinction between the preliminary inquiry, which determines probable cause for the issuance of a warrant of arrest, and the preliminary investigation proper, which ascertains whether the offender should be held for trial or be released. The determination of probable cause for purposes of issuing a warrant of arrest is made by the judge. The preliminary investigation proper — whether or not there is reasonable ground to believe that the accused is guilty of the offense charged — is the function of the investigating prosecutor.
"The task of the presiding judge when the information is filed with the court is first and foremost to determine the existence or non-existence of probable cause for the arrest of the accused. The purpose of the mandate of the judge to first determine probable cause for the arrest of the accused is to insulate from the very start those falsely charged with crimes from the tribulations, expenses and anxiety of a public trial" (People v. Gabo, G.R. No. 161083, August 3,2010).
Method of arrest with a warrant; warrant need not be in possession of the officer
1.	When a warrant of arrest is issued by a judge, the warrant is delivered to the proper law enforcement agency for execution.
The head of the office to whom the warrant of arrest was delivered shall cause the warrant to be executed within ten (10) days from its receipt. Within ten (10) days after the expiration of the period, the officer to whom it was assigned for execution shall make a report to the judge who issued the warrant. In case of his failure to execute the warrant, he shall state the reasons for its non-execution (Sec. 4, Rule 113, Rules of Court).
2.	When making an arrest by virtue of a warrant, the officer shall (a) inform the person to be arrested of the cause of his arrest, and (b) inform him of the fact that a warrant has been issued for his arrest. The information need not be made when the person to be arrested (a) flees, (b) forcibly resists, or
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(c) the giving of the information will imperil the arrest (Sec. 7, Rule 113, Rules of Court).
3.	The officer need not have the warrant in his possession at the time of the arrest. However, after the arrest, the warrant shall be shown to him as soon as practicable, if the person arrested so requires (Sec. 7, Rule 113, Rules of Court).
4.	The officer assigned to execute the warrant of arrest has the duty to deliver the person arrested to the nearest police station or jail without unnecessary delay (Sec. 3, Rule 113, Rules of Court).
No unnecessary violence
An underlying rule whenever an arrest is made is that no violence or unnecessary force shall be used in making an arrest. The person arrested shall not be subject to a greater restraint than is necessary for his detention (Sec. 2, Rule 113, Rules of Court).
Authority to summon assistance
It sometimes happens that an officer cannot on his own effectively make the arrest. Hence, the authority to effect an arrest carries with it an authority to orally summon as many persons as he deems necessary to assist him in effecting the arrest. Every person summoned by an officer is required to give the assistance requested provided he can do so without detriment to himself (Sec. 10, Rule 113, Rules of Court). The duty of the person summoned does not arise when rendering assistance would cause harm to himself. (Sec. 10, Rule 113, Rules of Court).
When person to be arrested is inside a building
If the person to be arrested is or is reasonably believed to be within any building or enclosure, the Rules authorize the officer, in order to make an arrest, to break into any building or enclosure in case he is refused admittance after announcing his authority and purpose (Sec. 11, Rule 113, Rules of Court).
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After entering the building or enclosure, he may break out from said place if necessary to liberate himself from the same place (Sec. 12, Rule 113, Rules of Court).
When a warrantless arrest is lawful (Bar 1988; 1989; 1996; 1997; 2000; 2004; 2010)
1.	The general rule as regards arrests, searches and seizures is that a warrant is needed in order to validly effect the same. The Constitutional prohibition against unreasonable arrests, searches and seizures refers to those effected without a validly issued warrant (Malacat v. Court of Appeals, 283 SCRA 159). Hence, the doctrine is that a warrant of arrest is required before an arrest is made. A warrantless arrest is the exception.
2.	The pertinent provisions of Rule 113 of the Rules on Criminal Procedure provide for the instances when a warrantless arrest may be made:
"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 (in flagrante exception);
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
{hot pursuit exception); 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" (escapee exception).
A peace officer or a private person may, without a warrant, arrest a person when, in his presence, the person to be arrested has committed, is actually committing, or is attempt
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ing to commit an offense (People v. Garcia, 529 SCRA 519, August 8,2007).
3.	Section 5 of Rule 113 provides three (3) instances when warrantless arrest may be lawfully effected: (a) arrest of a suspect in flagrante delicto; (b) arrest of a suspect where, based on personal knowledge of the arresting officer, there is probable cause that said suspect was the author of a crime which had just been committed (called hot pursuit.); (c) arrest of a prisoner who has escaped from custody serving final judgment or temporarily confined while his case is pending.
There is another ground for a warrantless arrest other than those provided for under Sec. 5 of Rule 113 of the Rules of Court. That ground is when a person previously lawftdly arrested escapes or is rescued. Under the Rules, any person may immediately pursue or retake him without a warrant at any time and in any place within the Philippines (Sec. 13, Rule 113, Rules of Court).
4.	A bondsman may arrest an accused for the purpose of surrendering him to the court. Also, an accused released on bail may be re-arrested without a warrant if he attempts to depart from the Philippines without permission of the court where the case is pending (Sec. 23, Rule 114, Rules of Court).
Who may make the warrantless arrest; duty of officer; citizen's arrest
1.	The warrantless arrest may be made not only by a peace officer but also by a private person. When the latter makes the arrest under the circumstances provided for under the Rules, the arrest is called "citizen's arrest"
A peace officer or a private person may, without a warrant, arrest a person when, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense (People v. Garcia, 529 SCRA 519, August 8,2007).
2.	When an accused is caught in flagrante delicto, the police officers are not only authorized but are duty-bound to arrest him even without a warrant.
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The basis of the in flagrante delicto exception; requisites
1.	Under Sec. 5(a), Rule 113, mere "suspicion" and "reliable information" are not justifications for a warrantless arrest. The rule requires that the accused perform some overt act that would indicate that he has committed, is actually committing, or is attempting to commit an offense.
2.	The basis of this rule is the exception provided for in Sec. 5(a), Rule 113, thus:
" * * * When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense * * * "
3.	For a warrantless arrest of a person caught in flagrante delicto under paragraph (a) of Section 5 to be valid, two requisites must concur:
(a)	the person to be arrested must execute an overt act indicating that he has just committed, is actually committing, or is attempting to commit a crime; and
(b)	such overt act is done in the presence or within the view of the arresting officer (People v. Racko, G.R. No. 186529, August 3, 2010; People v. Laguio, G.R. No. 128587, March 16, 2007; Zalameda v. People, G.R. No. 183656, September 4,2009).
4. Section 5(a) provides that a peace officer or a private person may, without a warrant, arrest a person when, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit, an offense. Section 5(a) refers to arrest in flagrante delicto. In flagrante delicto means caught in the act of committing a crime. This rule, which warrants the arrest of a person without warrant, requires that the person arrested has just committed a crime, or is committing it, or is attempting to commit an offense, in the presence within view of the arresting officer (People v. Alunday, G.R. No. 181546, September 3, 2008). For instance, the rule is settled that an arrest made after an entrapment
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does not require a warrant inasmuch as it is considered a valid warrantless arrest pursuant to Rule 113, Section 5(a) of the Rules of Court (People v. Cabugatan, 515 SCRA 537, February 12,2007).
Existence of an overt act of a crime in the presence of the person making the arrest
1.	Consider an experienced officer who upon noticing the characteristic outlines of the handle of a pistol bulging from the waistline of a pedestrian, stops him in the street, introduces himself as a policeman and without asking any questions immediately arrests him, cuffs him and forces him inside a waiting patrol car. Inside the car, the officer fishes out the firearm from the arrestee's waist, asks him whether or not he has a license to possess and a permit to carry the firearm, and after an admission from the person arrested that his gun has neither a license nor any other permit, books him for illegal possession of firearms. Whether or not the acts of the officer are permissible under the law and the Rules will necessarily be determined by the requisites provided for by Sec. 5(a) of Rule 113. The crucial issue to be laid before the court would be whether or not having the butt of a pistol bulge from one's waist plainly within the view of the officer conclusively constitutes an overt act of the crime of illegal possession of firearm which would justify an immediate arrest. The defense counsel would certainly argue that mere carrying of a pistol does not in itself indicate a violation of the law since illegal possession of a gun cannot be inferred from its mere possession. When the apprehension was made, the officer had no awareness that a crime is being committed in his presence since he had no prior knowledge that the person carrying the same had no license for the firearm, a knowledge that came to him only after the arrest. In short, it may be argued that there was absolutely nothing under the facts that would show an overt act of a crime other than the mere suspicion that the gun was unlicensed at the time of the arrest. The gun, under the circumstances may become a "fruit of the poisonous tree" and would possibly be held inadmissible in evidence.
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On the other hand, the prosecutor may insist on the application of the "plain view" doctrine to convince the Court to render a verdict of guilty. A hypothetical situation like the above indicates that sometimes a thin line exists between a legal and an illegal arrest and search.
2.	Thus, it was ruled that a flagrante delicto arrest is not justified when no one among the accused was committing a crime in the presence of the police officers, more so if the police officers did not have personal knowledge of the facts indicating that the persons to be arrested had committed an offense. The searches conducted cannot be said to be merely incidental to a lawful arrest. Reliable information alone is not sufficient to justify a warrantless arrest under Section 5(a), Rule 113. The rule requires, in addition, that the accused perform some overt act that would indicate that he has committed, is actually committing, or is attempting to commit an offense (People v. Nuevas, G.R. No. 170233, February 22, 2007).
3.	A 1988 case, People v. Aminnudin, 163 SCRA 402, demonstrates the legal infirmity of an arrest for noncompliance with the requisites of the flagrante delicto exception. Here, more than two days before the arrest, constabulary officers received a tip from an informer that the accused was on board an identified vessel on a particular date and time and was carrying marijuana. Acting on the information, they waited for the accused and approached him as he descended the gangplank of the ship and arrested him. A subsequent inspection of his bag disclosed the presence of three kilos of marijuana leaves. The Court declared as inadmissible in evidence the marijuana found in the possession of the accused as a product of an illegal search since it was not an incident to a lawful arrest. Emphatically, the Supreme Court declared that the accused was not, at the moment of his arrest, committing a crime nor was it shown that he was about to do so or that he had just done so. He was merely descending the gangplank of the ship and there was no outward indication that called for his arrest. To all appearances, he was like any of the other
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passengers innocently disembarking from the vessel. It was only when the informer pointed to him as the carrier of the marijuana that he suddenly became a suspect and so subject to apprehension. The court added that from the information received by the officers, they could have obtained a warrant since they had at least two days to apply for the same but the officers made no efforts to comply with the bill of rights. They chose to ignore the law.
Then too, in People v. Molina, 352 SCRA 174, the conviction by the trial court was reversed and set aside when the Supreme Court declared as invalid an arrest made merely on the basis of reliable information that the persons arrested were carrying marijuana. The accused were arrested while inside a pedicab despite the absence of any outward indications of a crime being committed.
Similarly, in Malacat v. Court of Appeals, 283 SCRA 159, the Supreme Court declared that a warrantless arrest cannot be justified where no crime is being committed at the time of the arrest because no crime may be inferred from the fact that the eyes of the person arrested were "moving fast" and "looking at every person" passing by.
4.	A classic case that illustrates an invalid arrest and a subsequent illegal search and seizure is People v. Mengote, 210 SCRA 174. The issue on the legality of the arrest, search and seizure stemmed from a telephone call to the police from an alleged informer that suspicious looking men were at a street corner in Tondo shortly before noon. The police operatives dispatched to the place saw three men one of whom who turned out to be Mengote, was "looking from side" to side clutching his abdomen. The operatives approached the three men and introduced themselves as policemen. Two of them accordingly tried to run away but the attempt was foiled. The search yielded a revolver in the possession of Mengote and a fan knife in the pocket of another. Mengote contends that the revolver should not have been admitted in evidence because its seizure was a product of an illegal search and made not as an incident to a lawful arrest.
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Speaking through Justice Isagani A. Cruz, the Court ruled that the requirements of a warrantless arrest were not complied with. There was no offense which could have been suggested by the acts of Mengote of looking from side to side while holding his abdomen. Observed the Court: "These are certainly not sinister acts. * * * He was not skulking in the shadows but walking in the clear light of day. There was nothing clandestine about his being on that street at that busy hour in the blaze of the noonday sun. * * * By no stretch of the imagination could it have been inferred from these acts that an offense had just been committed, or was at least being attempted in their presence."
5.	A much later case People v. Laguio, Jr., G.R. No. 128587, March 16, 2007, and which drew much from the ruling in Aminnudin likewise aptly illustrates the application of the doctrine. In this case, two men were arrested while they were about to hand over a bag of shabu to a policer officer. Questioned, the arrested men told the officers that they knew of a scheduled delivery of shabu by their employer, WW early the following morning and that he could be found at a certain apartment building in Malate, Manila. The police operatives decided to look for WW to shed light on the illegal drug activities of his alleged employees and proceeded to the location of the apartment and placed the same under surveillance.
When WW came out of the apartment towards a parked car, two other police officers approached him, introduced themselves to him as police officers, asked his name and, upon hearing that he was WW, immediately frisked him and asked him to open the back compartment of the car. When frisked, there was found inside the front right pocket of WW an unlicensed pistol with live ammunitions. At the same time, the other members of the operatives searched the car and found inside it were the following items: (a) transparent plastic bags with shabu; (b) cash in the amount of P650,000.00; (c) electronic and mechanical scales; and (d) another unlicensed pistol with magazine. Then and there, WW resisted the warrantless arrest and search.
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The Supreme Court, in very lucid terms, declared that the facts and circumstances surrounding the case did not manifest any suspicious behavior on the part of WW that would reasonably invite the attention of the police. He was merely walking from the apartment and was about to enter a parked car when the police operatives arrested him, frisked and searched his person and commanded him to open the compartment of the car. He was not committing any visible offense then. Therefore, there can be no valid warrantless arrest in flagrante delicto under paragraph (a) of Section 5. It is settled, said the Court that reliable information alone, absent any overt act indicative of a felonious enterprise in the presence and within the view of the arresting officers, is not sufficient to constitute probable cause that would justify an in flagrante delicto arrest (Citing People v. Binad Sy Chua, 444 Phil 757 and People v. Molina, 352 SCRA 174).
What is clearly established from the testimonies of the arresting officers said the Court, is that WW was arrested mainly on the information that he was the employer of the two men who were previously arrested and charged for illegal transport of shabu. They did not in fact identify WW to be their source of the shabu when they were caught with it in flagrante delicto. Upon the duo's declaration that there will be a delivery of shabu on the early morning of the following day and that WW may be found in an apartment building in Malate, the arresting officers conducted what they termed was a "surveillance" operation in front of said apartment, hoping to find a person who will match the description of WW, the employer of the arrested men.
The conclusion of the trial court that the warrantless arrest was illegal and that ipso jure, the warrantless search incidental to the illegal arrest is likewise unlawful, was sustained by the Supreme Court.
6.	Warrantless arrests were upheld in some cases. The much earlier case of People v. Anita Claudio, 160 SCRA 646, is an example of a warrantless arrest made under the in flagrante delicto exception. Here the accused who was carrying a woven
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buri-like plastic bag which appeared to contain camote tops, boarded a bus bound for the province. Instead of placing the bag by her side, which is the usual practice of a traveler, she placed the same on the back seat where a trained anti- narcotics agent was seated. Since the act of the accused was unusual for a traveler, the suspicion of the agent was aroused. Feeling that something was unusual, the agent inserted his finger inside the bag where he felt another plastic bag in the bottom from which emanated the smell of marijuana. Right after she got off the bus, the agent arrested the accused.
7.	Not all cases were however, decided in the mold of Amminudin. People v. Tangliben, 184 SCRA 220, is a case with facts which do not fall squarely with the standards set by Amminudin, because of the differences in circumstances. In this case, two police officers together with a barangay tanod were conducting surveillance operations in a bus station allegedly to check on persons who may be "engaging in the traffic of dangerous drugs based on information supplied by informers." They noticed a person carrying a red travelling bag who "was acting suspiciously." When asked to open the bag, the accused did so only after the officers identified themselves. Found in the bag were marijuana leaves wrapped in plastic and weighing about one kilogram. Upon these facts, it was ruled that there was a valid warrantless arrest and a valid warrantless search. The Court pronounced Tangliben to be different from Aminnudin. In the latter, the "urgency" presented by Tangliben were not present. In Tangliben, the Court found that the officers were faced by an "on-the-spot" information which required them to act swiftly.
In People v. Maspil, G.R. No. 85177, August 20, 1990, because of confidential reports from informers that two persons would be transporting a large quantity of marijuana, officers set up a checkpoint in Benguet to monitor, inspect and scrutinize vehicles bound for Baguio City. A couple of hours after midnight, a jeepney was flagged down in the checkpoint. On board were the persons identified by the informers who were also with the policemen manning the checkpoint. When the sacks and tin cans inside the jeepney were opened,
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they contained what appeared to be marijuana leaves. The policemen then placed the two accused under arrest. Again, the court distinguished Maspil from Aminnudin. In the latter, the officers were aware of the identity of the accused, his planned criminal enterprise and the vessel he would be taking. Further, in Aminnudin, the Court found that the officers had sufficient time to obtain a search warrant. In Maspil, the officers had no exact description of the vehicle of the accused, and no idea of the definite time of its arrival. The Court explained that a jeepney on the road is not the same as a passenger boat the route and time of arrival of which are more or less certain and which ordinarily cannot deviate or alter its course or select another destination.
The hot pursuit exception (Bar 1997; 2004)
1.	This exception found in Sec. 5(b) of Rule 113 which authorizes a warrantless arrest provides:
"* * * When an offense has just been committed and he has probable cause to believe based on personal knowledge of facts and circumstances that the person to be arrested has committed it * * *."
2.	The second instance of lawful warrantless arrest covered by paragraph (b) cited above necessitates two stringent requirements before a warrantless arrest can be effected: (1) an offense has just been committed; and (2) the person making the arrest has personal knowledge of facts indicating that the person to be arrested has committed it (People v. Agojo, G.R. No. 181318, April 16,2009). Under this exception a warrantless arrest made, one year after the offense was allegedly committed is an illegal arrest. (Bar 1997; 2004)
3.	This exception does not require the arresting officers to personally witness the commission of the offense with their own eyes. Personal knowledge of facts must be based on probable cause, which means an actual belief or reasonable grounds of suspicion. The grounds are reasonable when the suspicion that the person to be arrested is probably guilty of committing the offense is based on actual facts, i.e., supported
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by circumstances sufficiently strong in themselves to create the probable cause of guilt of the person to be arrested. A reasonable suspicion, therefore, must be founded on probable cause, coupled with good faith on the part of the peace officers making the arrest (Abelita v. Doria, G.R. No. 170672, August 14, 2009).
In Abelita III v. Doria, the petitioner alleged that he was arrested based merely on information relayed to the police officers about a shooting incident and that they had, at the time of the arrest, no personal knowledge of the facts. The Court found that as soon as the police received a phone call about a shooting incident, a team was dispatched to investigate. The investigation disclosed that a victim was wounded and that the witnesses tagged the petitioner as the one involved and that he had just left the scene of the crime. After tracking down the petitioner, he was invited to the police headquarters but the petitioner who initially agreed sped off prompting the authorities to give chase. The Court ruled that the petitioner's act of trying to get away, coupled with the incident report which they investigated, is enough to raise a reasonable suspicion on the part of the police authorities to the existence of a probable cause.
4.	A case decided long before Abelita III vividly illustrates the application of the exception. In People v. Acol, 232 SCRA 406, two robbers divested the passengers of a jeepney of their belongings including the jacket of one passenger. The passengers immediately sought the help of police officers which formed a team to track down the suspects. One of the passengers who went with the responding police officers, saw one of the robbers casually walking in the same vicinity and wearing his jacket. The warrantless arrest of the accused was sustained by the Court as well within the hot pursuit exception.
5.	In People v. Gerente, 219 SCRA 756, the Valenzuela police station received a report of a mauling incident which resulted in the death of the victim who received a massive skull fracture caused by a hard and heavy object. Right
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away the officers went to the crime scene and found a piece of wood with blood stains, a hollow block and two pouches of marijuana. A witness told the police that the accused was one of those who killed the victim. They proceeded to the house of the accused and arrested him. The Court ruled that based on their knowledge of the circumstances of the death of the victim and the report of an eyewitness, in arresting the accused, the officers had personal knowledge of facts leading them to believe that it was the accused who was one of the perpetrators of the crime.
Method of arrest without a warrant
1.	Arrest by an officer — When making an arrest without a warrant, the officer shall inform the person to be arrested of his (a) authority, and (b) the cause of his arrest.
This information need not be given (a) if the person to be arrested is engaged in the commission of an offense, (b) is in the process of being pursued immediately after its commission, (c) escapes or flees, or (d) forcibly resists before the officer has the opportunity to so inform him, or (e) when the giving of such information will imperil the arrest (Sec. 8, Rule 113, Rules of Court). The rules applicable to an arrest with a warrant also apply to an arrest without a warrant. Hence, the officer may summon assistance to effect the arrest, break into a building or an enclosure or break out from the same (Sees. 11-12, Rule 113).
2.	Arrest by a private person — When a private person makes an arrest, he shall inform the person to be arrested not of his authority to arrest, but of his intention to surest him and the cause of his arrest. This information need not be given under the same conditions as when it is an officer who makes the arrest (Sec. 9, Rule 113, Rules of Court). The right to break into a building or an enclosure specifically refers to an 'officer' and not to a private person (Sec. 11, Rule 113, Rules of Court).
3.	Where a warrantless arrest is made under the in flagrante and hot pursuit exceptions, the person arrested without a warrant shall be forthwith delivered to the nearest
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police station or jail (Sec. 5, last paragraph, Rule 113). (Bar 2007)
Time of making an arrest
An arrest may be made on any day and at any time of the day or night (Sec. 6, Rule 113, Rules of Court).
Rights of a person arrested (R.A. 7438)
1.	The rights of a person arrested, detained or under custodial investigation are spelled out by Republic Act No.7438. These rights are:
(a)	The right to be assisted by counsel at all times (Sec. 2[a], RA. 7438);
(b)	The right to remain silent (Sec. 2[b], RA. 7438);
(c)	The right to be informed of the above rights (Sec. 2[b], RA. 7438); and
(d)	The right to be visited by the immediate members of his family, by his counsel, or by any non-governmental organization, national or international (Sec. 2[f}, RA. 7438).
2.	The counsel must be one who is independent and competent. He shall be allowed to confer at all times with the person arrested, detained or under custodial investigation. If such person cannot afford the services of his own counsel, he must be provided by the investigating officer with a competent and independent counsel (Sec. 2[b], R.A. 7438).
3.	In the absence of a lawyer, no custodial investigation shall be conducted and the suspected person can only be detained by the investigating officer in accordance with the provisions of Article 125 of the Revised Penal Code (Sec. 3, RA. 7438). Also, any waiver of the provisions of Article 125 of the Revised Penal Code, shall be in writing, and signed by the person arrested, detained or under custodial investigation in the presence of his counsel, otherwise the waiver shall be null and void and of no effect (Sec. 2[e], RA.
7348). (Bar 2004; 2006)
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4. Any extrajudicial confession made shall also be in writing and signed by the person, detained or under custodial investigation in the presence of his counsel, or in the latter's absence, upon a valid waiver, and in the presence of any of the parents, older brothers and sisters, his spouse, the municipal mayor, the municipal judge, district school supervisor, or priest or minister of the gospel as chosen by him; otherwise such extrajudicial confession shall be inadmissible as evidence in any proceeding (Sec. 2[d], RA. 7438). (Bar 1996)
Custodial investigation; expanded concept
R.A. 7438 expanded the meaning of custodial investigation. Under Sec. 2(f) of the Act, custodial investigation shall include the practice of issuing an "invitation" to a person who is investigated in connection with an offense he is suspected to have committed, without prejudice to the liability of the "inviting" officer for any violation of law.
Penalties under R.A. 7438
R.A. 7438 provides penalties for its violations. For instance, any arresting officer or investigating officer who fails to inform any person, arrested, detained or under custodial investigation of his rights to remain silent and to counsel, shall suffer a penalty consisting of a fine of six thousand pesos (P6,000.00) or a penalty of imprisonment of not less than eight (8) years but not more than ten (10) years, or both.
Any person who obstructs, prevents or prohibits any lawyer or any member of the immediately family of a person arrested, detained or under custodial investigation or those who under the law are entitled to visit such person, shall suffer the penalty of imprisonment of not less than four (4) years nor more than six (6) years, and a fine of four thousand pesos (P4,000.00) (Sec. 4, RA. 7438).
Effect of an illegal arrest on jurisdiction of the court
The legality of the arrest affects only the jurisdiction of the court over the person of the accused. A waiver of an
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illegal warrantless arrest does not also mean a waiver of the inadmissibility of evidence seized during an illegal warrantless arrest (People v. Martinez, G.R. No. 191366, December 13, 2010).
Effect of admission to bail on objections to an illegal arrest
An application for or admission to bail shall not bar the accused from challenging the validity of his arrest or the legality of the warrant issued, provided that he raises the objection before he enters his plea. The objection shall be resolved by the court as early as practicable but not later than the start of the trial of the case (Sec. 26, Rule 114, Rules of Court).
Waiver of the illegality of the arrest; effect of illegal arrest (Bar 2000; 2001)
1. A warrantless arrest is not a jurisdictional defect and any objection to it is waived when the person arrested submits to arraignment without any objection. If the appellants are questioning their arrest for the first time on appeal, they are, therefore, deemed to have waived their right to the constitutional protection against illegal arrests and searches (People v. Aminola, G.R. No. 178062, September 8,2010).
The established rule is that an accused may be estopped from assailing the legality of his arrest if he failed to move for the quashing of the information against him before his arraignment. Any objection involving the arrest or the procedure in the court's acquisition of jurisdiction over the person of an accused must be made before he enters his plea; otherwise the objection is deemed waived (Zalameda v. People, G.R. No. 183656, September 4, 2009; Sec. 26, Rule 114, Rules of Court). It has been ruled time and again that an accused is estopped from assailing any irregularity with regard to his arrest if he fails to raise this issue or to move for the quashal of the information against him on this ground before his arraignment. Any objection involving the procedure by which the court acquired jurisdiction over the person of the accused must be made before he enters his plea; otherwise, the
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objection is deemed waived (People v. Tan, G.R. No. 191069, November 15,2010).
2.	Since the legality of an arrest affects only the jurisdiction of the court over the person of the accused, any defect in the arrest of the accused may be deemed cured when he voluntarily submits to the jurisdiction of the trial court. It was also held in a number of cases that the illegal arrest of an accused is not a sufficient cause for setting aside a valid judgment rendered upon a sufficient complaint after a trial free from error; such arrest does not negate the validity of the conviction of the accused (People v. Alunday, G.R. No. 181546, September 3,2008; Dolera v. People, G.R. No. 180693, September 4,2009).
Any irregularity attending the arrest of an accused, depriving the trial court of jurisdiction over his or her person, should be raised in a motion to quash at any time before entering her plea, and failure to timely raise this objection amounts to a waiver of such irregularity, resulting in concomitant submission to the trial court's jurisdiction over his or her person (Eugenio v. People, 549 SCRA 433, March 26,2008).
3.	An accused is estopped from assailing the legality of his arrest if he fails to raise this issue, or to move for the quashal of the information against him on this ground, before arraignment. In a case, the appellant was already arraigned, entered a plea of not guilty and actively participated in his trial. He raised the issue of the irregularity of his arrest only during his appeal to the Court of Appeals. He is therefore, deemed to have waived such alleged defect by submitting himself to the jurisdiction of the court through his counsel-assisted plea during the arraignment, by actively participating in the trial, and by not raising the objection before his arraignment (People of the Philippines v. Nelson PalmayHangad, G.R. No. 189279, March 9, 2010; Diamante v. People, G.R. No. 180992, September 4,2009; Zalameda v. People, GH. No. 183656, September 4,2009; People v. Amper, G.R. No.172708, May 5,2010).
4.	The principle that the accused is precluded after arraignment from questioning the illegal arrest or the lack of or irregular preliminary investigation applies only if the
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accused voluntarily enters his plea and participates during trial, without previously invoking his objections thereto. There must be clear and convincing proof that the accused had an actual intention to relinquish his right to question the existence of probable cause (Jose Antonio C. Leviste v. Hon. Elmo M. Alameda, et al., G.R. No. 182677, August 3, 2010; Borlongan v. Pena, G.R. No. 143591, May 25,2010).
5.	In one case, the petitioner claimed that his warrantless arrest is illegal. However, nowhere in the records can it be found in which the petitioner interposed objections to the irregularity of his arrest prior to his arraignment. It has been consistently ruled that an accused is estopped from assailing any irregularity of his arrest if he fails to raise this issue or to move for the quashal of the information against him on this ground before arraignment. Any objection involving a warrant of arrest or the procedure by which the court acquired jurisdiction over the person of the accused must be made before he enters his plea; otherwise, the objection is deemed waived (Salvador Valdez Rebellion v. People of the Philippines, G.R. No. 175700, July 5,2010).
In the above case, the records disclosed that the petitioner was duly arraigned, entered a negative plea and actively participated during the trial. Thus, he is deemed to have waived any perceived defect in his arrest and effectively submitted himself to the jurisdiction of the court trying his case. At any rate, the illegal arrest of an accused is not a sufficient cause for setting aside a valid judgment rendered upon a sufficient complaint after a trial free from error. It will not even negate the validity of the conviction of the accused (Salvador Valdez Rebellion v. People of the Philippines, G.R. No. 175700, July 5,2010).
Persons not subject to arrest
1. Sec. 11, Article VI of the 1987 Constitution provides:
"A senator or member of the House of representatives shall, in all offenses punishable by not more than six
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years imprisonment, be privileged from arrest while the Congress is in session * * *."
The privilege of a senator or a congressman will not apply when the offense is punishable by imprisonment of more than six (6) years even if Congress is in session (People v. Jalosjos, G.R. No. 132875-76, February 3, 2000). Also, the privilege does not apply if Congress is not in session (Sec. 11, Art. VI, Philippine Constitution).
2.	Under generally accepted principles of international law, sovereigns and other chiefs of state, ambassadors, ministers plenipotentiary, ministers resident, and charge d'affaires are immune from the criminal jurisdiction of the country of their assignment and are therefore immune from arrest (II Hyde, International Law, 2nd Ed).
3.	RA. 75 prohibits the arrest of duly accredited ambassadors, public ministers of a foreign country, their duly registered domestics (Sec. 4, RA. 75), subject to the principle of reciprocity (Sec. 7, RA. 75).
II. SEARCHES AND SEIZURES (RULE 126)
Nature of a search warrant (Bar 1994)
1.	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 (Sec. 1, Rule 126, Rules of Court).
2.	A search warrant is not a criminal action nor does it represent a commencement of a criminal prosecution even if it is entitled like a criminal action. It is not a proceeding against a person but is solely for the discovery and to get possession of personal property. It is a special and peculiar remedy, drastic in nature, and made necessary because of public necessity. It resembles in some respects with what is commonly known as
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John Doe proceedings (United Laboratories, Inc. v. Isip, 461 SCRA 574 citing Bevington v. United States, 35 F2d 5841929; State v. Keiffer, 187 NW164 1922).
A search warrant is a legal process which has been likened to a writ of discovery employed by the state to procure relevant evidence of a crime. It is in the nature of a criminal process restricted to cases of public prosecutions. A search warrant is a police weapon, issued under the police power (United Laboratories, Inc. v. Isip, 461 SCRA 574 citing Lodyga v. State, 179 NE1641931; C.J.S. Searches and Seizures § 63).
It has no relation to a civil process. It is not a process for adjudicating civil rights or maintaining mere private rights. It concerns the public at large as distinguished from ordinary civil action involving the rights of private persons and may only be applied for the furtherance of public prosecutions (Ibid.; citing State v. Derry, 56 NE 482 1908; Lodyga v. State, 179 NE 164 1931)
3.	The power to issue search warrants is exclusively vested with the trial judges in the exercise of their judicial functions (Skechers, USA v. Inter Pacific Industrial Trading Corporation, 509 SCRA 395).
The Constitutional provision
1. Like an arrest, the laws and rules governing a search warrant is based upon constitutional guarantees. The pertinent constitutional provision provides:
"Sec. 2: The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized" (Sec. 2, Article III, 1987 Constitution of the Philippines).
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2. The following provision solidifies the constitutional prohibition against unreasonable searches and seizures by providing for an exclusionary rule, thus:
"Any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any proceeding (Sec. 3, par. 2, Article III, 1987 Constitution of the Philippines).
Arrest distinguished from search and seizure
1.	The rules on arrest are concerned with the seizure of a person. It involves the taking of a person in custody. A search may follow an arrest but the search must be incident to a lawful arrest.
The rules on searches and seizures cover a wider spectrum of matters on the search of both persons and places and the seizure of things found therein.
2.	A probable cause to arrest does not necessarily involve a probable cause to search and vice versa. Probable cause to arrest involves a different determination from probable cause to search. In order to determine probable cause to arrest, the judge (not the prosecutor) must have sufficient facts in his hands that would tend to show that a crime has been committed and that a particular person committed it. Probable cause to search requires facts to show that particular things connected with a crime are found in a specific location.
3.	The judge is not necessarily required to make a personal examination before issuing a warrant of arrest (Borlon- gan v. Pena, G.R. No. 143591, May 5, 2010, citing Soliven v. Makasiar, 167 SCRA 293). The judge must, before issuing the search warrant, personally examine the complainant and the witnesses he may produce in determining probable cause (Sec. 5, Rule 126, Rules of Court; Santos v. Pryce Gases, G.R. No. 165122, November 23,2007).
4.	An arrest may be made on any day and at any time of the day or night (Sec. 6, Rule 113, Rules of Court). A search
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warrant is generally served in the day time, unless there be a direction in the warrant that it may be served at any time of the day or night (Sec. 9, Rule 126, Rules of Court).
Definition of a search warrant under the Rules
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 (Sec. 1, Rule 126, Rules of Court).
Application for a search warrant," where to file
1.	As a rule, an application for a search warrant shall be filed before any court within whose territorial jurisdiction a crime was committed (Sec. 2[a], Rule 126, Rules of Court).
2.	There are exceptions to the above general rule. These are:
(a)	The application may be made before any court within the judicial region where the crime was commit- ted if the place of the commission of the crime is known (Sec. 2[b], Rule 126, Rules of Court).
(b)	The application may also be filed before any court within the judicial region where the warrant shall be enforced (Sec. 2[b], Rule 126, Rules of Court).
Note: In both exceptions, filing in such courts re- quires compelling reasons stated in the application.
(c)	The application shall be made only in the court where the criminal action is pending, if the criminal ac- tion has already been filed (Sec. 2, last paragraph, Rule 126, Rules of Court).
Search warrants involving heinous crimes and others
1. The above rules in Sec. 2 of Rule 126 of the Rules of Court have been deemed modified by A.M. No. 99-20-09-SC dated January 25, 2000, in cases involving heinous crimes,
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illegal gambling, dangerous drugs and illegal possession of firearms.
Under the aforementioned issuance by the Supreme Court, the following are authorized to act on all applications for search warrants involving any of the above crimes:
The Executive Judge and Vice Executive Judges of Regional Trial Courts of Manila and Quezon City filed by the Philippine National Police (PNP), the National Bureau of Investigation (NBI), the Presidential Anti-Organized Crime Task Force (PAOC-TF) and the Reaction Against Crime Task Force (REACT-TF) with the Regional Trial Courts of Manila and Quezon City.
The applications shall be personally endorsed by the Heads of said agencies, for the search of places to be particularly described therein, and the seizure of property or things as prescribed in the Rules of Court, and to issue the warrants of arrest, if justified, which may be served in places outside the territorial jurisdiction of said courts.
The authorized judges shall keep a special docket book listing the details of the applications and the results of the searches and seizures made pursuant to the warrants issued.
2. In Spouses Marimla v. People, G.R. No. 158467, October 16, 2009, the petitioners filed a motion to quash the search warrant and to suppress the evidence illegally seized. It was contended among others, that the application for search warrant was filed and the warrant was issued by the RTC of Manila which is a court outside the territorial jurisdiction and judicial region of the courts of Angeles City and Porac, Pampanga where the alleged crime was committed. It was also argued that the application for search warrant was not personally endorsed by the head of the NBI as required by "AM. No. 99-10-09-80."
The Supreme Court observed that the cases against petitioners involved a violation of the Dangerous Drugs Law of 1972 (R.A. 6425). As such, the application for search warrant may be filed by the NBI in the City of Manila and the warrant
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issued may be served outside of Manila pursuant to "A.M. No. 99-10-09-SC." The Court likewise held that as to the claim that the application for the warrant was defective for not having been personally endorsed by the head of the NBI, the Court held that "nothing in A.M. No. 99-10-09-SC prohibits" the head of the NBI and of the other law enforcement agencies mentioned from delegating their ministerial duty of endorsing the application to their assistant heads. Besides, under Section 31, Chapter 6, Book IV of the Administrative Code of 1987, an assistant head or other subordinate in every bureau may perform such duties as may be specified by their superior or head, as long as it is not inconsistent with law.
Ex parte application for a search warrant
An application for a search warrant is heard ex parte. It is neither a trial nor a part of the trial. Action on these applications must be expedited for time is of the essence. Great reliance has to be accorded by the judge to the testimonies under oath of the complainant and the witnesses. (Chemise Lacoste, S.A. v. Fernandez, 214 Phil. 332; Santos v. Pryce Gases, Inc., G.R. No. 165122, November 23,2007).
Property subject of a search warrant
1.	The property subject of a search warrant is personal property, not real property. A search warrant may be issued not only for the search but also for the seizure of the following:
(a)	Personal property subject of the offense;
(b)	Personal property stolen or embezzled and other proceeds,
or fruits of the offense; or
(c)	Personal property used or intended to be used as a means of committing an offense (Sec. 3, Rule 126, Rules of Court).
2.	The rule is, only the personal properties described in the search warrant may be seized by the authorities. In People v. Nunez, (G.R. No. 177148, June 30, 2009), Search Warrant No. 42 specifically authorized the taking of methamphetamine
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hydrochloride (shabu) and paraphernalia(s) only. By the principle of ejusdem generis, the Court explained, where a statute describes things of a particular class or kind accompanied by words of a generic character, the generic word will usually be limited to things of a similar nature with those particularly enumerated, unless there be something in the context of the statement which would repel such inference. Certainly, the lady's wallet, cash, grinder, camera, component, speakers, electric planer, jigsaw, electric tester, saws, hammer, drill, and bolo were not encompassed by the word paraphernalia as they bear no relation to the use or manufacture of drugs. In seizing the said items then, the police officers exercised their own discretion and determined for themselves which items in appellant's residence they believed were "proceeds of the crime" or "means of committing the offense." This, said the Court, is absolutely impermissible.
In the same case, the Court declared:
"The purpose of the constitutional requirement that the articles to be seized be particularly described in the warrant is to limit the things to be taken to those, and only those particularly described in the search warrant — to leave the officers of the law with no discretion regarding what articles they should seize. A search warrant is not a sweeping authority empowering a raiding party to undertake a fishing expedition to confiscate any and all kinds of evidence or articles relating to a crime. Accordingly, the objects taken which were not specified in the search warrant should be restored to appellant.
Requisites for the issuance of a search warrant
1.	The following are the requisites for a search warrant under the Rules of Court:
(a)	There must be probable cause in connection with one
specific offense;
(b)	The presence of probable cause is to be determined by the judge personally;
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(c)	The determination by the judge must be made after an examination under oath or affirmation of the complainant and the witnesses he may produce;
(d)	The warrant must specifically describe the place to be searched and the things to be seized which may be anywhere in the Philippines (Sec. 4, Rule 126, Rules of Court; Santos v. Pryce Gases, G.R. No. 165122, November 23,2007; People v. Tuan, G.R. No. 176066, August 11,2010).
2.	The absence of the following requisites for a search warrant's validity, will cause its downright nullification: (1) it must be issued upon probable cause; (2) the probable cause must be determined by the judge himself and not by the applicant or any other person; (3) in the determination of probable cause, the judge must examine, under oath or affirmation, the complainant and such witnesses as the latter may produce; and (4) the warrant issued must particularly describe the place to be searched and persons or things to be seized (Santos v. Pryce Gases, Inc., G.R. No. 165122, November 23,2007).
3.	Inherent in the court's power to issue search warrants is the power to quash warrants already issued. After a judge has issued a warrant, he is not precluded to subsequently quash the same, if he finds upon re-evaluation of the evidence that no probable cause exists (Manly Sportwear Manufacturing, Inc. v. Dadodette Enterprises, 470 SCRA 384; Skechers, USA, Inc. v. Inter Pacific Industrial Trading Corporation, 509 SCRA 395).
Probable cause in search warrants
 A search warrant can be issued only upon a finding of probable cause. Probable cause for search warrant means such facts and circumstances which would lead a reasonably discreet and prudent man to believe that an offense has been committed and that the objects sought in connection with the offense are in the place to be searched (Kho v. Lanzanas, 489 SCRA 445; Roan v. Gonzales, 145 SCRA 687).
 The facts and circumstances being referred thereto pertain to facts, data or information personally known to the
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applicant and the witnesses he may present. The applicant or his witnesses must have personal knowledge of the circumstances surrounding the commission of the offense being complained of. "Reliable information'' is insufficient. Mere affidavits are not enough, and the judge must depose in writing the complainant and his witnesses (Yao, Sr. v. People, 525 SCRA 108) because in the determination of probable cause, the court must resolve whether or not an offense exists to justify the issuance of the search warrant (Skechers, USA, Inc. v. Inter Pacific Industrial Trading Corporation, 509 SCRA 395).
Probable cause does not mean actual and positive cause, nor does it import absolute certainty. The determination of the existence of probable cause is not concerned with the question of whether the offense charged has been or is being committed in fact, or whether the accused is guilty or innocent, but only whether the affiant has reasonable grounds for his belief. The requirement is less than certainty of proof, but more than suspicion or possibility (Kho v. Lanzanas, 489 SCRA 445).
3.	There is no general formula or fixed rule for the determination of probable cause since the same must be decided in light of the conditions obtaining in given situations and its existence depends to a large degree upon the findings or opinion of the judge conducting the examination (Skechers, USA, Inc. v. Inter Pacific Industrial Trading Corporation, 509 SCRA 395). It is presumed that a judicial function has been regularly performed, absent a showing to the contrary. A magistrate's determination of a probable cause for the issuance of a search warrant is. paid with great deference by a reviewing court, as long as there was substantial basis for that determination (People v. Mamaril, G.R. No. 171980, October 6,2010).
Although the term "probable cause" has been said to have a well-defined meaning under the law, the term is exceedingly difficult to define with any degree of precision and one which would cover every state of facts which may arise. As to what acts constitute probable cause, there is no exact test (Kho v. Lanzanas, 489 SCRA 445). The question whether or not probable cause exists is one which must be decided in the light
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of the conditions obtaining in given situations (Central Bank v. Morfe, 20 SCRA 507).
4.	One case gives a reminder by declaring that 'probable cause' is a flexible, common sense standard. It merely requires that the facts available to the officer would warrant a man of reasonable caution and belief that certain items may be contraband or stolen property or useful as evidence of a crime. It does not require proof that such belief be correct or more likely than true. A practical, non-traditional probability that incriminating evidence is involved is all that is required (United Laboratories, Inc. v. Isip, 461 SCRA 574, citing Texas v. Brown, 460 U.S. 730,103 S. Ct. 15351983).
5.	Since probable cause is dependent largely on the opinion and findings of the judge who conducted the examination and who had the opportunity to question the applicant and his witnesses, the findings of the judge deserves great weight. The reviewing court can overturn such findings only upon proof that the judge disregarded the facts before him or ignored the clear dictates of reason (Yao, Sr. v. People, G.R. No. 168306, June 19, 2007). However, the probable cause must also be shown to be within the personal knowledge of the complainant or the witnesses he may produce and not based on mere hearsay. In determining its existence, the examining magistrate must make a probing and not merely routine or pro forma examination of the complainant and the witnesses (Nola v. Barroso, Jr., 408 SCRA 529; Betoy, Sr. v. Coliflores, 483 SCRA 435).
In determining probable cause, the oath required must refer to the truth of the facts within the personal knowledge of the applicant or his witnesses, because the purpose thereof is to convince the magistrate, not the individual making the affidavit and seeking the issuance of the warrant of the existence of probable cause (Kho v. Lanzanas, 489 SCRA 445).
6.	In a case, the trial court retracted its earlier finding of probable cause because the seized items were accordingly incomplete or insufficient to charge petitioner with a criminal offense, thus, negating its previous determination of probable
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cause. The Court disagreed because in quashing the search warrant, it would appear that the trial court had raised the standard of probable cause to whether there was sufficient cause to hold petitioner for trial. In so doing, the trial court committed grave abuse of discretion.
Probable cause for a search warrant is defined as such facts and circumstances which would lead a reasonably discrete and prudent man to believe that an offense has been committed and that the objects sought in connection with the offense are in the place sought to be searched. A finding of probable cause needs only to rest on evidence showing that, more likely than not, a crime has been committed and that it was committed by the accused. Probable cause demands more than bare suspicion; it requires less than evidence which would justify conviction. The existence depends to a large degree upon the finding or opinion of the judge conducting the examination. However, the findings of the judge should not disregard the facts before him nor run counter to the clear dictates of reason (Santos v. Pryce Gases, Inc., G.R. No. 165122, November 23,2007).
Probable cause to arrest and probable cause to search
 A probable cause to arrest does not necessarily involve a probable cause to search and vice versa. Probable cause to arrest involves a different determination from probable cause to search. In order to determine probable cause to arrest, the judge (not the prosecutor) must have sufficient facts in his hands that would tend to show that a crime has been committed and that a particular person committed it. Probable cause to search requires facts to show that particular things connected with a crime are found in a specific location.
	 	Webb v. De Leon, 247 SCRA 653 expounds:
. .each requires a showing of probabilities as to somewhat different
facts and circumstances, and thus one can exist without the other. In search cases, two conclusions must be supported by substantial evidence; that the items sought are in fact sizeable by virtue of being
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connected to criminal activity, and that the items will be found in the place to be searched. It is not also necessary that a particular person be implicated. By comparison, in arrest cases there must be probable cause that a crime was committed and that the person to be arrested has committed it, which of course can exist without any show- ing that evidence of the crime will be found at the prem- ises under a person's control. Worthy of note, our Rules of Court do not provide for a similar procedure to be fol- lowed in the issuance of a warrant of arrest and search warrants..."
How the examination shall be conducted by the judge
1.	Aside from the requirements mandated by Sec. 4 of Rule 126, the rule requires the judge to comply with a specific procedure in the conduct of the examination of the complainant and the witnesses he may produce. The required procedure involves the following:
(a)	The examination must be personally conducted by the judge;
(b)	The examination must be in the form of search- ing questions and answers;
(c)	The complainant and the witnesses shall be ex- amined on those facts personally known to them;
(d)	The statements must be in writing and under oath; and
(e)	The sworn statements of the complainant and the witnesses, together with the affidavits submitted, shall be attached to the record (Sec. 5, Rule 126, Rules of Court).
2.	The facts and circumstances to be testified to by the complainant and the witnesses he may produce, being referred thereto pertain to facts, data or information personally known to the applicant and the witnesses he may present. The applicant or his witnesses must have personal knowledge of the circumstances surrounding the commission of the offense being complained of. "Reliable information" is insufficient.
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Mere affidavits are not enough, and the judge must depose in writing the complainant and his witnesses (Yao, Sr. v. People, G.R. No. 168306, June 19, 2007). An application for a search warrant if based on hearsay cannot, standing alone, justify issuance of a search warrant. It is necessary for the witnesses themselves, by their own personal information, to establish the applicant's claims (Roan v. Gonzales, 145 SCRA 687).
3.	Section 5 of Rule 126 of the Revised Rules on Criminal Procedure, prescribes the rules in the examination of the complainant and his witnesses when applying for search warrant, to wit:
"SEC. 5. Examination of complainant; record. — The judge must, before issuing the warrant, personally examine in the form of searching questions and answers, in writing under oath, the complainant and the witnesses he may produce on facts personally known to them and attach to the record their sworn statements, together with the affidavits submitted."
The foregoing provisions require that the judge must, before issuing the warrant make a personal examination under oath of the complainant and the witnesses he may produce in accordance with Sec. 5 of Rule 126.
"Mere affidavits of the complainant and his witnesses are thus, not sufficient. Aside from the examination under oath, "...The examining judge has to make searching questions and elicit answers of the complainant and the witnesses he may produce in writing and to attach them to the record." Thus, in Balayon v. Dinopol, 490 SCRA 547, the Court found an RTC judge guilty of gross ignorance of the law for failure to observe the mandate of the rules because the Court found that there was no record of searching questions and answers attached to the records of the case.
4.	The searching questions propounded to the applicant and the witnesses depend largely on the discretion of the judge. Although there is no hard-and-fast rule governing how a judge should conduct his investigation, it is axiomatic that the examination must be probing and exhaustive, not merely
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routinary, general, peripheral, perfunctory or pro forma. The judge must not simply rehash the contents of the affidavit but must make his own inquiry on the intent and justification of the application (Yao, Sr. v. People, G.R. No. 168306, June 19, 2007; Betoy, Sr. v. Coliflores, 483 SCRA 435).
5.	In the determination of probable cause, the Constitution and the Rules of Court require an examination of the witnesses under oath. The examination must be probing and exhaustive, not merely routine or pro forma. The examining magistrate must not simply rehash the contents of the affidavit but must make his own inquiry on the intent and justification of the application. Asking of leading questions to the deponent in an application for search warrant, and conducting of examination in a general manner, would not satisfy the requirements for issuance of a valid search warrant (Uy v. Bureau of Internal Revenue, 344 SCRA 36).
Particular description of place or person
1. The long standing rule is that a description of the place to be searched is sufficient if the officer with the warrant can, with reasonable effort, ascertain and identify the place intended and distinguish it from other places in the community. Any designation or description that points out the place to the exclusion of all others, and on inquiry leads the officers unerringly to it, satisfies the constitutional requirement.
Moreover, in the determination of whether a search warrant describes the premises to be searched with sufficient particularity, it has been held that the executing officer's prior knowledge as to the place intended in the warrant is relevant. This would seem to be especially true where the executing officer is the affiant on whose affidavit the warrant had been issued, and when he knows that the judge who issued the warrant intended the compound described in the affidavit (Yao, Sr. v. People, G.R. No. 168306, June 19,2007).
The standard for determining the legality of a warrant directed against a person is whether the person has been
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sufficiently described with particularity sufficient to identify him with reasonable certainty. Even if his name is unknown or erroneously written, the description of the person with certainty to identify him and set him apart from others is enough to lend validity to the warrant (United States v. Ferrone, 438 F.2d 381, 3d Cir. 1971). Nowhere in Section 4, Rule 126 or any other provision of the Revised Rules of Criminal Procedure is it required that the search warrant must name the person who occupies the described premises (Quelnan v. People, 526 SCRA 653, July 6, 2007).
2.	The determining factor as to whether a search warrant describes the premises to be searched with sufficient particularity is not whether the description is technically accurate in every detail but rather whether the description is sufficient to enable the officer to locate and identify the premises with reasonable effort, and whether there is any reasonable probability that another premises may be mistakenly searched and not the one intended to be searched under the warrant (United States v. Darensbourg, 520 F.2d 985,987; 5th Cir. 1975; Steele v. United States, 267 U.S. 498, 503, 45 S. Ct. 414, 416, 69 L.Ed. 757, 760). The prevailing doctrine is that the warrant "must sufficiently describe the premises to be searched so that the officer executing the warrant may, with reasonable effort, ascertain and identify the place intended" (People v. Peck, 1974, 38 CA 3d 993,1000,113 CR 806).
3.	In United States v. Darensbourg (520 F.2d 985, 987 5th Cir. 1975), the warrant as well as the affidavit supporting it gave an erroneous street address but with the right apartment number in a four-building apartment complex. Since there was no other apartment in the entire complex that had the same apartment number as that described in the warrant, the description was upheld.
The court, in a California case, applying the same principle, sustained the validity of a warrant which gave the wrong lot number or address but referred to the house to be searched as that one occupied by the accused (People v.
Superior Court [Fish], 1980,101 Cal. App. 3d 216,161 Cal. Rptr. 547).
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4.	In another American case, the place to be searched was described as u313 West 27th Street, a dwelling. The apartment of Melvin Lloyd Manley." The place was actually a multi-occupancy dwelling with sub-units or individual apartments. The defendant assailed the validity of the warrant on the ground that his apartment or unit was not sufficiently described. Here the court ruled that a search warrant directed against a multiple occupancy structure, although does not specify the sub-unit to be searched would not be considered invalid where it adequately specifies the name of the occupant of the sub-unit against which the warrant is directed and thus provides the searching officers sufficient information to identify the place intended by the warrant.
The warrant, said the Court, must make reasonably clear what place is to be searched. Where the particular place to be searched is described by the affidavit of the officer as a single living unit in an entire building, a warrant describing an entire building and thus authorizing the search of the building is too broad (People v. Govea, 1965, 235 CA2d 285, 300; 45 CR 253; People v. Estrada, 1965 234 CA2d 136,146 CR 165).
5.	In People v. Estrada, 1965, 234 CA2d 136, 146, 44 CR 165, a building had four apartments, and one of them located in the second floor was occupied by the accused. The warrant referred to:"The apartment house occupied by Manuel Estrada at 18 S. 19th Street, San Jose, the second story of a white house ..." The court ruled that by referring to Estrada, the warrant, identified the particular unit to be searched and the warrant was not overly broad. Estrada further held that if the description in the warrant limits the search to a particular part of the premises either by a designation of the area or other physical characteristics of such part or by a designation of its occupants, the business conducted there, the warrant will meet constitutional standards in respect to the description of the place to searched.
6.	In Uy v. Bureau of Internal Revenue, 344 SCRA 36, the caption of Search Warrant A-l indicates the address of the petitioner as "Hernan Cortes St., Cebu City9 while the body of the same warrant states the address as "Hernan Cortes St.,
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Mandaue City" The Court did not consider the discrepancy as sufficient to consider the warrant constitutionally infirm. It was not shown that there was a street with the same name in Cebu City nor was it established that the officers enforcing the warrant had difficulty locating the premises of the petitioner. Uy explained that a description of the place to be searched is sufficient if the officer with the warrant can, with reasonable effort, ascertain and identify the place intended and distinguish it from other places in the community. Any designation or description known to the locality that points out the place to the exclusion of all others, and on inquiry leads the officers unerringly to it, satisfies the constitutional requirement.
7.	A John Doe warrant which does not name the person subject of the same, is the exception rather than the rule. Hence, in one case, a warrant was voided to the extent that it was issued against fifty (50) John Does none of which could be identified by the witnesses (Pangandaman v. Casar, 159 SCRA 599).
8.	The police on the other hand, should not be hindered in the performance of their duties by superficial adherence to technicality or farfetched judicial interference. While the rule requires it necessary to express the name or give some description of a party subject of a warrant, the principle does not prevent the issue and service of a warrant against a party whose name is unknown. In such a case, the best possible description of the person is to be given in the warrant; but it must be sufficient to indicate clearly on whom it is to be served, by stating his occupation, his personal appearance and peculiarities, the place of his residence or other circumstances by which he can be identified. The description must be sufficient to indicate clearly the proper person upon whom the warrant is to be served.
Thus, in the early case of People v. Veloso, 48 Phil. 169, the search warrant stated that John Doe had gambling apparatus in his possession in the building occupied by him at No. 124 Calle Arzobispo, City of Manila, and as this
John Doe was Jose Ma. Veloso, the manager of the Club, the police
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could identify John Doe. Further, the affidavit for the search warrant and the search warrant itself described the building to be searched and the description was a sufficient designation of the premises.
9.	The person to be searched must be described with reasonable particularity (Lohman v. Superior Court, 69 Cat. App. 3d 894). He can even be identified by a name which others use in calling him, even if it is not his real name (People v. Mclean, 56 Cal. 2d 660) because the standard for determining the legality of a warrant directed against a person is whether the person has been sufficiently described with particularity sufficient to identify him with reasonable certainty. Even if his name is unknown or erroneously written, the description of the person with certainty to identify him and set him apart from others is enough to lend validity to the warrant (United States v. Ferrone, 438 F.2d 381, 3rd Cir. 1971). Nowhere in Section 4, Rule 126 or any other provision of the Revised Rules of Criminal Procedure is it required that the search warrant must name the person who occupies the described premises (Quelnan v. People, 526 SCRA 653, July 6,2007).
10.	There is also compliance with the law when the person although not particularly named, is described as the one occupying and having control of a specific address (People v. Veloso, 48 Phil. 169).
Particular description of the items to be seized; general warrants (Bar 2005)
1. The provision requiring a particular description of the items or things to be seized is designed to prevent general searches and avoid the seizure of a thing not described in the warrant and also so nothing is to be left to the discretion of the officer executing the warrant (United States v. Marron, 275 U S. 192, 196, 48 S. Ct. 74, 76, 72 L.Ed. 231, 237). The requirement of particularity is designed to prevent general exploratory searches which reasonably interfere with a person's right to privacy (People v. Schilling, 188 Cal. App. 3d 1021). Warrants which do not describe the things to be seized
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with the required particularity have been traditionally called general warrants.
2.	The requirement of particularity is said to be satisfied if the warrant imposes a "meaningful restriction" upon the objects to be seized (Burrows v. Superior Court, 13 Cal. 3d 238; People v. Tockgo, 145 Cal. App. 3d 635). A "meaningful restriction" is one that leaves nothing to the discretion of the officer who conducts the search (Marron v. United States, 275 US, 192,196, 48 S. Ct. 74, 72 Ed 231). Corollarily, "a warrant may not authorize a search broader than the facts supporting its issuance." Hence, a warrant authorizing the search and seizure of "papers showing or tending to show the trafficking of cocaine9 is invalid because the affidavit supporting the issuance made no reference to the existence of such papers (People v. Holmsen, 173 Cal. App. 3d 1045).
3.	The Philippine Supreme Court declares that the purpose of this requirement is to limit the things to be seized to those described in the search warrant and to leave the officers of the law no discretion regarding what articles they shall seize so abuses may not be committed (Uy Kheytin v. Villareal, 42 Phil. 886).
4.	The common denominator among decisions on "particularity" regard descriptions of a generic nature as failing to impose a meaningful restriction on the officer conducting the search.
Descriptions of the things to be searched and seized as "stolen goods," "obscene materials," or "other articles of merchandise too numerous to mention," have been held inadequate (Marcus v. Search Warrants, 367 U.S. 717, 81 S.Ct. 1708, L.Ed. 2d 1127). The phrase, "any and all other stolen items" was impermissibly vague (United States v. Townsend, 394 F. Supp. 736 E.D. Mich, 1975). In People v. Tockgo, 145 Cal. App. 3d 635, the officers had information about certain unique markings of stolen cigarettes, but the description did not include the markings to permit the officers to differentiate the object of the search from those which were not stolen. The words:
*cigarettes... and any and all goods..." were deemed inadequate.
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5.	In a leading Philippine case, a warrant was deemed illegal, thus:
"Books of accounts, financial records, vouchers, journals, correspondence, receipts, ledgers, portfolios, credit journals, typewriters,, and other documents and papers showing all business transactions, including disbursement receipts, balance sheets and related profits and loss statements* is too broad and general because it authorizes the search and seizure of records "pertaining to all business transactions of petitioner herein, regardless, of whether the transactions were legal or illegal" (Stonehill v. Diokno, G.R. No. 19550, June 19,1967).
6.	Also held inadequate for constitutional compliance is the following description of the things to be searched and seized:
"...Television sets, video cassette recorders, rewind- ers, tape head cleaners, accessories, equipment and other machines used or intended to be used in the unlawful reproduction, sale, rental I lease, distribution of the above- mentioned video tapes which she is keeping and concealing in the premises above-described" (20th Century Fox Film Corporation v. Court of Appeals, 164 SCRA 655).
The above articles and appliances, said the Court, are generally connected with or related to a legitimate business not necessarily involving piracy of intellectual property or infringement of copyright laws. Including them without particularity makes the search warrant too general which could result in the confiscation of all items found in any video store.
7.	A high degree of particularity is required for items such as books, films, recordings, or other materials that have not yet been adjudged obscene. Since these materials are at this stage, still deemed to be constitutionally protected, the requirement of particular description "must be accorded the most scrupulous exactitude" and when the bases for their seizure are the ideas which they contain (Lo-Ji Sales, Inc. v. New York, 442 U.S. 319, 325, 99S.Ct.
2319, 2324, 60 L. Ed.2d

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920, 9271979; Stanford v. Texas, 379 U.S. 476, 485, 85 S. Ct. 506, 511-12,13 L.Ed.2d 431, 4361965).
8.	Some decisions (State v. Brown, 470 P.2d 815, 819- 20 Kan. 1970), in the United States have sometimes allowed a general description when specificity is difficult and where a technical description would have required the experience of a trained surgeon. For instance, the following description for purposes of a warrant was upheld: "Various instruments and tools in performing abortion, which were instrumentalities of such offense "
In People v. Schmidt, (473 P. 2d 698, 700, Co. 1970), the court allowed a description reading: "marijuana...dangerous drugs, stimulant drugs and hallocinogenics...together with such vessels, implements, furniture in which drugs are found and the vessels, implements and furniture used in connection with the manufacture, production and dispensing of such drugs..."
In United States v. Appoloney, 761 F. 2d 520 (9th Cir. 1985), the validity of the following description of gambling paraphernalia was allowed: "wagering paraphernalia such as betting slips, bottom sheets and owe sheets, and journals and schedules of sporting events"
A warrant describing the property to be seized as "deer or elk meat illegally possessed" was considered adequate because a more particular description was not possible. The meat to be seized had no brand names or serial numbers (Dunn v. Municipal Court, 220 Cal. App. 2d 858).
9. In the Philippines, general descriptions have likewise been allowed in some cases when dictated by the nature of the things to be seized on the theory that the description must be specific insofar as the circumstances will ordinarily allow (People v. Rubio, 57 Phil. 384). The law does not require that the things to be seized must be described in precise and minute details as to leave no room for doubt on the part of the searching authorities (Too, Sr. v.
People, G.R. No. 168306, June 19,2007).
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But the use of a generic term or a general description in a warrant is allowed only when a more specific description of the things to be seized is not available. Thus, the mere use of terms like "multiple set books of accounts, ledgers, journals, columnar books, cash register books, sales books or records" and similar general descriptions, is unacceptable considering the circumstances where the petitioner is alleged to have committed tax fraud and smuggling. The issuing judge could have formed a more specific description of the documents because he was furnished copies of the documents sought to be seized. As regards the terms "unregistered delivery receipts" and "unregistered purchase and sales invoices," these need not be identified specifically. It is not possible to do so considering these are unregistered. Taking into consideration the nature of the articles described, no other more adequate and detailed description could have been given because of the difficulty in describing the contents of the same (Uy v. Bureau of Internal Revenue, 344 SCRA 36).
10. In Kho v. Makalintal, 306 SCRA 70, the petitioners claim that the search warrants issued were general warrants prohibited by the constitution because the things to be seized were not described and specified. One warrant for instance, directing the search and seizure of firearms, did not list the firearms to be seized and were not classified as to size, make, caliber. The subject warrant merely stated:
Unlicensed firearms of various calibers and ammunitions for the said firearms..."
In brushing aside the contention of the petitioner, the Court observed that the law enforcement officers could not have been in the position to know beforehand the exact caliber or make of the firearms to be seized. In the process of surveillance conducted at a distance, they had no way of knowing the caliber and make of the firearms unless they get a close view of the weapons and thus, could not be expected to know the detailed particulars of the objects to be seized including the communications equipment. The court likewise considered the use of the words, "and the like" of no moment and did not make the warrants in question, general warrants.
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11. In Yao v. People, the petitioners argued that the search warrants did not indicate with particularity the items to be seized since the search warrants merely described the items to be seized as LPG cylinders bearing the trademarks GASUL and SHELLANE without specifying their sizes.
The contention found no merit with the Court holding that a search warrant may be said to particularly describe the things to be seized when the description therein is as specific as the circumstances will ordinarily allow; or when the description expresses a conclusion of fact not of law by which the warrant officer may be guided in making the search and seizure; or when the things described are limited to those which bear direct relation to the offense for which the warrant is being issued.
"While it is true that the property to be seized under a warrant must be particularly described therein and no other property can be taken thereunder, yet the description is required to be specific only in so far as the circumstances will ordinarily allow. The law does not require that the things to be seized must be described in precise and minute details as to leave no room for doubt on the part of the searching authorities; otherwise it would be virtually impossible for the applicants to obtain a search warrant as they would not know exactly what kind of things they are looking for. Once described, however, the articles subject of the search and seizure need not be so invariant as to require absolute concordance, in our view, between those seized and those described in the warrant. Substantial similarity of those articles described as a class or specie would suffice.
"Measured against this standard, we find that the items to be seized under the search warrants in question were sufficiently described with particularity. The articles to be confiscated were restricted to the following: (1) LPG cylinders bearing the trademarks GASUL and SHELLANE; (2) Machines and equipments used or intended to be used in the illegal refilling of GASUL and SHELLANE cylinders. These machines were also specifically enumerated and listed in the search warrants; (3) Documents
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which pertain only to the production, sale and distribution of the GASUL and SHELLANE LPG cylinders; and (4) Delivery trucks bearing Plate Nos. WTE-527, XAM- 970 and WFC-603, hauling trucks, and/or other delivery trucks or vehicles or conveyances being used or intended to be used for the purpose of selling and/or distributing GASUL and SHELLANE LPG cylinders. Additionally, since the described items are clearly limited only to those which bear direct relation to the offense, i.e., violation of Section 155 of Republic Act No. 8293, for which the warrant was issued, the requirement of particularity of description is satisfied.
"Given the foregoing, the indication of the accurate sizes of the GASUL and SHELLANE LPG cylinders or tanks would be unnecessary" (Yao v. People, G.R. No.
168306, June 19,2007).
12. The description "an undetermined amount of marijuana or Indian
hemp" satisfies the requirement of particularity in a search warrant. By reason of its character and the circumstances under which it would be found, said article is illegal. A further description would be unnecessary and impossible except as to such character, the place and the circumstances. The description therein is (1) as specific as the circumstances will ordinarily allow; (2) expresses a conclusion of fact — not of law — by which the peace officers may be guided in making the search and seizure; and (3) limits the things to be seized which bear direct relation to the offense for which the warrant is being issued. Such warrant imposes a meaningful restriction upon the objects to be seized by the officers serving the warrant. Thus, it prevents exploratory searches, which might be violative of the Bill of Rights (People v. Tee, 395 SCRA 419).
Ownership of property seized not required
The law does not require that the property to be seized should be owned by the person against whom the search warrant is directed. It is sufficient that the person against whom the warrant is directed has control and possession of the property sought to be seized (Yao v.
People, G.R. No. 168306,
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UPDATED EDITION June 19, 2007). In an American decision involving a search of newspaper offices, the U.S. Supreme Court ruled that a search warrant is directed to the seizure of things and not the seizure of persons and hence, the critical element is not ownership but whether there is a reasonable cause to believe that the things to be seized are located in the place to be searched (Zurcher v. The Stanford Daily, 436 U.S. 547,556,98 S.Ct. 1970,1977,56 L.Ed.2d 525, 535).
Extent of the search
1. A fair reading of jurisprudence discloses that the reasonableness of both the seizure and the search does not exclusively refer to the manner by which the warrant was procured. It refers also to the reasonableness of the manner the warrant was executed including the time and place of its execution.
Also, for the search to be reasonable, the object of the search must be the one properly described in the warrant. Marron v. United States, 275 U.S. 192, 48 S.Ct., 1927, in holding that officers cannot seize property not specified in the warrant, found that a search warrant describing only intoxicating liquors should not include ledgers and bills of account within the searched premises.
Where the warrant is unambiguous and limited only to a particular place like a store described in the warrant the search does not extend to the apartment units located at the back of the store even if the sketch submitted to the judge include the apartments. It is neither fair nor licit to allow officers to search a place not described in the warrant because the place not described is what the officers had in mind (People v. Court of Appeals, 291 SCRA 400). 2. A warrant which authorizes the search of weapons includes the authority to open closets, drawers, chests and containers in which the weapons might be found. These containers must give way to the interest in the prompt and efficient completion of the task when a legitimate search is underway and when its purpose and limits have been precisely
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defined. If the warrant is to search a vehicle, every part of that vehicle which may contain the object to be seized may be searched. In other words, the lawful search of the premises particularly described extends to the areas in which the object may be found (United States v. Ross, 456 U.S. 798).
3. It has been held that when a search warrant authorizes the search of a place particularly described, a justified search would include all the things attached to or annexed to the land if the place described be land (United States v. Meyer, 417 F. 2d 1020, 8th Cir. 1969). Courts have also generally allowed a search of vehicles owned or controlled by the owner of the premises and at the same time found in the premises (United States v. Percival, 756F.2d 600 7th Cir. 1985).
Search of third persons not named in the warrant
1.	Assume that a search warrant for a described place of a named owner is being executed, may a person who just happens to be in the premises be also searched? The prevailing American general rule is that a warrant to search a place does not extend to the authority to search all persons in the place because the police have no probable cause to search and detain a person not particularized in the warrant. Thus, in Ybarra v. Illinois (444 U.S. 85, 100 S.Ct, 338 62 L.Ed.2d 238 1979), the U.S. Supreme Court, struck down as invalid a search of a mere patron in a bar.
2.	There have been cases where the Court upheld the search of things belonging to third persons while in the place validly searched as when the officers had no knowledge that the same belongs to a third person (Carman v. State, 602 P.2d 1255, Alaska 1979).
Issuance and form of the search warrant
The warrant shall be issued when the judge is satisfied of the existence of facts upon which the application is based or that there is a probable cause to believe that they exist. The form of the search warrant must be substantially in the form prescribed by the Rules (Sec. 6, Rule 126, Rules of Court).
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Duration of the validity of a search warrant
A search warrant shall be valid for ten (10) days from its date. Thereafter, it shall be void (Sec. 10, Rule 126, Rules of Court).
Time of making the search
The warrant shall be served in the daytime and such fact must be so directed by the warrant. However, if the affidavit asserts that the property is on the person or in the place ordered to be searched, the warrant may insert a direction that it may be served at any time of the day or night (Sec. 9, Rule 126, Rules of Court). Hie rule on issuance of search warrants allows for the exercise of judicial discretion in fixing the time within which the warrant may be served, subject to the statutory requirement fixing the maximum time for the execution of a warrant (People v. Court of Appeals, 347 SCRA 453).
Manner of making the search
1.	The search shall be made in the presence of the lawful occupant of the house, room or any other premises, or any member of the lawful occupant's family. In the absence of the latter, the search shall be made in the presence of two witnesses of sufficient age and discretion residing in the same locality. The rule in this regard is emphatic. No search shall be made except in the presence of the persons mentioned in the Rules (Sec. 8, Rule 126, Rules of Court).
2.	In Panuncio v. People, G.R. No. 165678, July 17, 2009, the petitioner assailed the validity of the search which was allegedly conducted while she was not in the house. The petitioner alleges that since the search warrant was defective, the items seized during the search could not be used in evidence against her.
The Court categorically ruled that even assuming that the petitioner or any lawful occupant of the house was not present when the search was conducted, the search was done in the presence of at least two witnesses of sufficient age and discretion residing in the same locality. Clearly, the require
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ments of Sec. 8, Rule 126 of the Rules of Court were complied with by the police authorities who conducted the search.
Section 8, Rule 126 of the Rules of Court provides:
SEC. 8. Search of house, room, or premises, to be made in presence of two witnesses — No search of a house, room, or any other premise shall be made except in the presence of the lawful occupant thereof or any member of his family or in the absence of the latter, two witnesses of sufficient age and discretion residing in the same locality.
3. The officer seizing the property must give a detailed receipt for the same to the lawful occupant of the premises in whose presence the search and seizure were made, or in the absence of such occupant, must, in the presence of at least two witnesses of sufficient age and discretion residing in the same locality, leave a receipt in the place in which he found the seized property (Sec. 11, Rule 126, Rules of Court).
Rule if the officer is refused admittance; "knock and announce rule"
1.	Being armed with a warrant does not justify outright entry or barging into the place to be searched. An officer should knock, introduce himself and announce his purpose and only in exceptional cases may he forego the same like when his safety is in danger of being jeopardized or when evidence is about to be destroyed (Wilson v. Arkansas, 514 U.S. 927).
2.	The officer may break open any outer or inner door or window of a house or any part of a house or anything therein provided the following requisites are complied with:
(a)	The officer gives notice of his purpose and authority;
(b)	He is refused admittance to the place of directed search despite the notice; and
(c)	The purpose of breaking is to execute the warrant or to liberate himself or any person lawfully aiding him when unlawfully detained therein (Sec. 7, Rule 126, Rules of Court).

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Duties of the officer after the search and seizure; delivery and inventory
(a)	The officer must forthwith deliver the property seized to the judge who issued the warrant;
(b)	The officer must, together with the delivery of the property also deliver a true inventory of the property seized. Such inventory must be duly verified under oath (Sec. 12, Rule 126, Rules of Court).
(c)	Note: A violation of the above rules shall constitute contempt of court (Sec.12, Rule 126, Rules of Court).
Duty of the judge; return and other proceedings
1.	Under Sec. 12(b) of Rule 126, the judge issuing the search warrant has the following duties:
(a)	The judge who issued the warrant shall ascertain if the return has been made. He shall do so ten (10) days after issuance of the search warrant.
(b)	If no return has been made, the judge shall summon the person to whom the warrant was issued and require him to explain why no return was made.
(c)	If the return has been made, the judge shall ascertain whether Sec. 11 of Rule 126 (giving of a receipt for the property seized) was complied with and shall require that the property seized be delivered to him. The judge shall also see to it that subsection "a" of Sec. 12 of Rule 126 (delivery of the property seized and true inventory) has been complied with.
2.	A judge should know that his duty as a magistrate does not end when the warrant is issued. When the evidence shows that the judge who issued the search warrant did not require the officers executing the warrant to make an accurate and complete inventory of the things seized and submit the same to him, he is guilty of gross ignorance of the law (Betoy v. Coliflores, 483 SCRA 435).
3.	In 	Santos 	v. 	Pryce 	Gases, 	Inc., 	G.R. 	No. 	165122,
November23,2007, the Court found that the Court of Appeals,
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in reversing the order of the trial court granting the motion to quash, erred in ordering the return of the seized items to respondent.
The Court held that Section 12, Rule 126 of the Revised Rules of Criminal Procedure expressly mandates the delivery of the seized items to the judge who issued the search warrant to be kept in custodia legis in anticipation of the criminal proceedings against petitioner. The delivery of the items seized to the court which issued the warrant together with a true and accurate inventory thereof, duly verified under oath, is mandatory in order to preclude the substitution of said items by interested parties. The judge who issued the search warrant is mandated to ensure compliance with the requirements for (1) the issuance of a detailed receipt for the property received,
(2)	delivery of the seized property to the court, together with
(3)	a verified true inventory of the items seized. Any violation of the foregoing constitutes contempt of court.
Duty of the custodian of the log book
1. The return on the search warrant shall be filed and kept by the custodian of the log book on search warrants who shall enter therein the date of the return, the result, and other actions of the judge (Sec. 12, Rule 126, Rules of Court)
A violation of the above rules shall constitute contempt of court (Sec.12, Rule 126, Rules of Court).
Objection to issuance or service of a warrant
1.	Any objection concerning the issuance or service of a warrant or a procedure in the acquisition by the court of jurisdiction over the person of the accused must be made before he enters his plea, otherwise, the objection is deemed waived (Buenaventura v. People, 529 SCRA 500, August 7, 2007).
2.	The constitutional right of appellant against warrantless arrest and search was not violated when the appellant failed to assail the legality of the arrest and the seizure of the sachet of shabu prior to arraignment or at any stage in the proceedings of the trial court. The arrest was pursuant
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to a buy-bust operation which is a valid form of entrapment of felons in the execution of their criminal plan; and that the search conducted on appellant was incidental to a lawful arrest (People v. Maeatingag, G.R. No. 181037, January 19, 2009).
Where to file a motion to quash a search warrant or to suppress evidence
1.	A motion to quash a search warrant and/or to suppress evidence obtained by virtue of the warrant may be filed and acted upon only by the court where the action has been instituted.
2.	If no criminal action has been instituted, the motion may be filed in and resolved by the court that issued the search warrant. However, if such court failed to resolve the motion and a criminal case is subsequently filed in another court, the motion shall be resolved by the latter court (Sec. 14, Rule 126, Rules of Court).
Who may assail the issuance of a search warrant
1.	Well-settled is the rule that the legality of a seizure can be contested only by the party whose rights have been impaired thereby, and the objection to an unlawful search and seizure is purely personal and cannot be availed of by third parties (Santos v. Pryce Gases, Inc., G.R. No. 165122, November 23,2007).
2.	The manager of an establishment is a real party-in- interest to seek the quashal of the search warrant for the obvious reason that the search warrant, in which the manager was solely named as respondent, was directed against the premises and articles over which he had control and supervision. The manager, who is at the same time the petitioner was directly prejudiced or injured by the seizure of the gas tanks because petitioner was directly accountable as manager to the purported owner of the seized items. When the application for a search warrant averred that petitioner had in his possession and control the items subject of the alleged criminal offense, the interest of the manager/petitioner becomes obvious.
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The corporation does not have the exclusive right to question the seizure of items belonging to the corporation on the ground that the latter has a personality distinct from the officers and shareholders of the corporation. Assuming arguendo that the corporation was the owner of the seized items, petitioner, as its manager had the authority to question the seizure of the items belonging to the corporation. Unlike natural persons, corporations may perform physical actions only through properly delegated individuals; namely, their officers and/or agents (Santos v. Pryce Gases, Inc., G.R. No. 165122, November 23,2007).
Petition for certiorari for unwarranted quashal of a search warrant
In one case, after issuing a search warrant, the RTC of Iloilo made a turnaround and granted the motion to quash filed by the petitioner. The RTC likewise issued an order for the return of the items seized to the petitioner. After a denial of its motion for reconsideration, the respondent elevated the matter to the Court of Appeals via a special civil action for certiorari, arguing that the trial court committed grave abuse of discretion in quashing the search warrant. The petition essentially questioned the quashal of the search warrant despite a prior finding of probable cause. The Court of Appeals rendered a decision setting aside the orders of the lower court. The petitioner sought reconsideration but was denied.
One of the issues raised in the subsequent petition for review on certiorari before the Supreme Court was whether or not the petition for certiorari filed with the Court of Appeals by respondent was the proper remedy to assail the orders of the trial court.
The Court held that the special civil action for certiorari was the proper recourse availed by respondent in assailing the quashal of the search warrant. An unwarranted reversal of an earlier finding of probable cause constituted grave abuse of discretion. In any case, the Court had allowed even direct recourse to the Court or to the Court of Appeals via a special

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civil action for certiorari from a trial court's quashal of a search warrant (Santos v. Pryce Gases, Inc., G.R. No. 165122, November 23,2007).
Exceptions to the search warrant requirement (Bar 1988; 1995; 1996; 1997; 2008)
1.	As a general rule, the procurement of a warrant is required before a law enforcer can validly search or seize the person, house, papers, or effects of any individual. To underscore the significance the law attaches to the fundamental right of an individual against unreasonable searches and seizures, the Constitution clearly declares in Section 3(2), Article III, that "any evidence obtained in violation of this or the preceding section shall be inadmissible in evidence for any purpose in any proceeding." (Bar 1998)
Thus, the 1987 Constitution states that a search and consequent seizure must be carried out with a judicial warrant; otherwise, it becomes unreasonable and any evidence obtained therefrom shall be inadmissible for any purpose in any proceeding (People v. Racho, G.R. No. 186529, August 3, 2010).
2.	There are however, instances when securing a warrant before effecting a search and a seizure would not serve the ends of an orderly society. The time and effort required to secure a warrant may sometimes actually frustrate the effective enforcement of the laws and encourage criminal activities. On the other hand, the rule requiring a warrant protects citizens from the overzealousness of law enforcement officers who hold as personal dogma that the means justify the end. To harmonize these conflicting perspective, Courts have developed certain exceptions to the warrant requirement in order to authorize warrantless searches and seizures with the end of striking out a balance between the need to safeguard the rights of citizens and the need to avoid emasculating the powers of the state to maintain a well-ordered society.
Although embedded within the rule on search warrants is the general rule that searches and seizures shall be valid
only when carried out by virtue of a search warrant, this rule however, is subject to certain judicially formulated exceptions.
3.	It has always been recognized that the rule requir- ing a warrant is not however, absolute. There are well- recognized instances where searches and seizures are allowed
even without a valid warrant under any of the following circumstances (Dimacuha v. People, 516 SCRA 513; People
v. Nuevas, 516 SCRA 463; People v. Tuazon, 532 SRA 152; Epie, Jr. v. Ulat-Marredo, 518 SCRA 641; Valeroso v. Court of Appeals, G.R. No. 164815, September 3, 2009):
(a)	Warrantless search incidental to a lawful ar-
rest;
(b)	Seizure of evidence in "plain view." (Bar 2008)
The elements of the plain view exception are: a) a prior valid intrusion based on the valid warrantless ar- rest in which the police are legally present in the pursuit of their official duties; b) the evidence was inadvertently discovered by the police who have the right to be where they are; c) the evidence must be immediately apparent; and d) "plain view" justified mere seizure of evidence without further search;
(c)	Search of a moving vehicle — Highly regulated by the government, the vehicle's inherent mobility re- duces expectation of privacy especially when its transit in public thoroughfares furnishes a highly reasonable suspicion amounting to probable cause that the occupant committed a criminal activity;
(d)	Consented warrantless search;
(e)	Customs search;
(f)	Stop and frisk or Terry searches (People v. Mo- lina, 352 SCRA 174; Esquillo v. People, G.R. No. 182010,
August 25,2010). (Bar 1995)
(g)	Exigent and emergency circumstances (People
v. Bohol, 560 SCRA 232, July 28, 2008; People v. Racho, G.R. No. 186529, August 3,2010).
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(h)	Search of vessels and aircraft; [and]
(i)	Inspection of buildings and other premises for the enforcement of fire, sanitary and building regulations. (Valeroso v. Court of Appeals, G.R. No. 164815, September 3,2009).
4. In the exceptional instances where a warrant is not necessary to effect a valid search or seizure, what constitutes a reasonable or unreasonable search or seizure is purely a judicial question, determinable from the uniqueness of the circumstances involved, including the purpose of the search or seizure, the presence or absence of probable cause, the manner in which the search and seizure was made, the place or thing searched, and the character of the articles procured (Valeroso v. Court of Appeals, G.R. No. 164815, September 3, 2009; People v. Racho, G.R. No. 186529, August 3, 2010; Esquillo v. People, G.R. No. 182010, August 25, 2010).
Search incident to a lawful arrest (Bar 2003)
1.	The "search-incident-to-a-lawful-arrest" exception is authorized by Sec. 13, Rule 126 of the Rules of Court which provides:
"Sec. 13. A person lawfully arrested may be searched for dangerous weapons or anything which may have been used or constitute proof in the commission of an offense without a search warrant."
2.	The application of the above rule presupposes that the person searched was previously arrested lawfully. Hence, a person illegally arrested cannot be validly searched without a warrant under this provision. For an arrest to be lawful, the arrest may either be by virtue of a warrant lawfully procured or by virtue of a warrantless arrest authorized under Sec. 5 of Rule 113 of the Rules of Court and other applicable provisions such as Sec. 13 of the same rule.
3.	Recent Court pronouncements hold that in searches incident to a lawful arrest, the arrest must precede the search; generally, the process cannot be reversed. Nevertheless, a search substantially contemporaneous with an arrest can precede the arrest if the police have probable cause to make the arrest at the outset of the search. Thus, we have to determine first whether the police officers had probable cause to arrest appellant. If what prompted the police to apprehend the accused, even without a warrant, was the tip given by the informant that appellant would arrive carrying shabu, this circumstance gives rise to another question of whether that information, by itself, is sufficient probable cause to effect a valid warrantless arrest. The long standing rule in this jurisdiction is that "reliable information" alone is not sufficient to justify a warrantless arrest. The rule requires, in addition, that the accused perform some overt act that would indicate that he has committed, is actually committing, or is attempting to commit an offense. There is no cogent reason to depart from this well-established doctrine (People v. Racho, G.R. No. 186529, August 3,2010).
Parameters of a search incident to a lawful arrest; immediate possession and control rule
2.	Sec. 13 of Rule 126 specifically enumerates the allowable scope of a search incident to a lawful arrest. The provision limits the search to the following:
(a)	For dangerous weapons;
(b)	For anything which may have been used in the commission of an offense; or
(c)	For anything which constitute proof in the commission of an offense.
3.	Is the search confined to the search of the person lawfully arrested? How about the search of the premises where he was arrested? The phraseology of Sec. 13 of Rule 126, at first glance, suggests that it is only the person lawfully arrested who is to be searched. The provision partly reads: "... A person lawfully arrested may be searched .
4.	The Court has however, ruled on several occasions that: " x x x When an arrest is made, it is reasonable for the
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arresting officer to search the person arrested in order to remove any weapon that the latter might use in order to resist arrest or effect his escape. Otherwise, the officer's safety might well be endangered, and the arrest itself frustrated. In addition, it is entirely reasonable for the arresting officer to search for and seize any evidence on the arrestee's person in order to prevent its concealment or destruction. Moreover, in lawful arrests, it becomes both the duty and the right of the arresting officer to conduct a warrantless search not only on the person of the suspect but also within the permissible area within the latter'8 reach, x x x a valid arrest allows the seizure of evidence or dangerous weapons either on the person of the one arrested or within the area of his immediate control. The phrase "within the area of his immediate control" means the area from within which he might gain possession of a weapon or destructible evidence. A gun on a table or in the drawer in front of the person arrested can be as dangerous to the arresting officer as one concealed in the clothing of the person arrested x x x " (People v. Leangsiri, 252 SCRA 213; People v. Cubcubin, Jr., 360 SCRA 690; People v. Estella, 395 SCRA 553; Valeroso v. Court of Appeals, G.R. No. 164815, September 3,2009; emphasis supplied).
Thus, when the person arrested was brought out of the room with his hands tied, a cabinet which is locked could no longer be considered as part of "an area within his immediate control" because there was no way for him to take any weapon or to destroy any evidence that could be used against him (Valeroso v. Court of Appeals, G.R. No. 164815, September 3, 2009).
4.	A search and a seizure incident to a lawful arrest is not limited to things related to the reason for the arrest. If for instance, a person is legally arrested for illegal possession of drugs, the search is not confined to things used in the commission of the crime. To protect the arresting officer, the search extends to weapons like a gun or a knife with no actual connection to the crime of illegal possession of the drugs. If in the course of the search, evidence is found constituting proof of another offense, like an illegally possessed weapon, *it is
submitted that the phraseology of the rule does not prevent the seizure of the evidence.
The provisions of Sec. 13 of Rule 126 are consistent with the ruling in Adams v. Williams, 47 U.S. 143, that a person arrested may be searched for weapons and all unlawful articles in his person and within his immediate control may be seized.
American decisions categorically declare that an arresting officer may seize evidence of crimes other than the crime which was the reason for the arrest. In one case, the accused was arrested pursuant to a warrant for possession and transportation of explosives but during the search there was discovered an item the possession of which is illegal. The discovery of objects unrelated to the arrest does not render the seizure invalid (United States v. Simpson, 453 F.2d 102810th Cir. 1972).
5.	Sec. 13 of Rule 126 allows the warrantless search of the "person lawfully arrested" as an incident to a lawful arrest in a manner similar to American rulings allowing a full search of the body of the person. The cases of United States v. Robinson (414 U.S. 218, 94 S. Ct. 467, 38 L.Ed.2d 427 1973) and Gustafson v. Florida, (414 U.S. 260, 94
S.Ct.488,38 L.Ed.2d 456 1973), allowed the search of the cigarette case of a person arrested for a traffic violation. Illegal drugs were discovered in both instances. A full search means searching any property associated with the arrestee's body like clothing, jewelry, watches and others attached to the person in a permanent or semi-permanent capacity. The search includes inspecting the clothing of the person arrested for bloodstains, fingerprints or even serial numbers.
Others cases have similarly held that the right without a search warrant to contemporaneously search persons lawfully arrested and to search the place where the arrest is made to find and seize things connected with the crime as its fruits or by the means it was committed, as well as weapons and other things to escape from custody is not to be doubted (Agnello v. United States, 269 U.S. 20 making reference to Carroll v. United
States, 267 U.S. 132 and Weeks v. United States,
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232 U.S. 383, 392). But while the U.S. Supreme Court had broadened the search from the
"person" to the "place," such place should be one where the arrest was made. The house for instance, where the arrest was made may be searched when such searches and seizures naturally appertain to and attend such arrests. Thus, in Marron v. United States, 275 U.S. 192, the Court ruled that because the officers had made a valid search and arrest in the premises, they had a right without a warrant to contemporaneously search the place for evidence of the criminal enterprise. In Marron, the Court suggested that the search should be confined to the offender's immediate possession and control, a concept made clearer in Chimel v. California, 395 U.S. 752.
But the right does not extend to other places such as a house several blocks away from the place where an arrest was made. In this case, the search would no longer be incident to a lawful arrest (Agnello v. United States, 269 U.S. 20, 30 citing Silverthome Lumber Co. v. United States, 251 U.S. 385, 391; People v. Conway, 225 Mic. 151 and Gamble v. Keyes, 35 S.D. 645, 650).
6. In Chimel v. California, 395 U.S. 752, the U.S. Supreme Court discussed the extent of a search incident to a lawful arrest. In this case, the police officers, armed with an arrest warrant but not a search warrant, were admitted to petitioner's home by his wife, where they awaited petitioner's arrival. When he entered, he was served with the warrant. Although he denied the officers' request to "look around," they conducted a search of the entire house "on the basis of the lawful arrest." The officers looked through the entire house including the attic, the garage and a small workshop. At petitioner's trial on burglary charges, items taken from his home were admitted over the objection that they had been unconstitutionally seized. His conviction was affirmed by the California appellate courts, which held, despite their acceptance of petitioner's contention that the arrest warrant was invalid, that, since the arresting officers had procured the warrant "in good faith," and since, in any event, they had sufficient information to constitute probable cause for the
arrest, the arrest was lawful. The courts also held that the search was justified as incident to a valid arrest.
The U.S. Supreme Court found the search of the entire house unreasonable. It categorically ruled in Chimel that assuming the arrest was valid, the warrantless search of petitioner's house cannot be constitutionally justified as an incident to that arrest. An arresting officer may search the arrestee's person to discover and remove weapons and to seize evidence to prevent its concealment or destruction, and may search the area within the immediate control of the person arrested, meaning the area from which he might gain possession of a weapon or destructible evidence. For the routine search of rooms other than that in which an arrest occurs, or for searching desk drawers or other closed or concealed areas in that room itself, absent well recognized exceptions, a search warrant is required. A reasonable distinction is to be made between a search of the person arrested and the area within his reach and immediate control on one hand and more extensive searches in other areas on the other.
The ruling in Chimel clarified previous cases (like United States v. Rabinowitz, 339 US. 56) which made vague references to the search of areas considered to be in the "possession" and "control" of the person arrested allowing searches of places not necessarily within the actual physical control of a person but within his constructive control and giving free reign to law enforcers in determining what to be searched. Chimel limited the search to the arrestee's person and "within his immediate control."
Thus, following Chimel, the arresting officers validly seized two revolvers within the reach of the person arrested for being involved in an armed robbery (People v. Spencer, 99 Cal.Rptr 681 Col. App. 1972).
7.	The Chimel tradition found expression for instance, in the Philippine case of People v. Leangsiri (252 SCRA 213). Here Leangsiri was arrested at the NAIA for bringing heroin into the country. Later, the persons involved in the smuggling of heroin were arrested in the hotel room of Leangsiri in an

UPDATED EDITION
entrapment operation. Questioning of the persons arrested disclosed that one of them was occupying a room in the same hotel where Leangsiri was billeted. Without a search warrant, the other room was searched and incriminating evidence was seized. Clearly said the Court, citing Chimel, the search of the latter room was illegal and the evidence obtained therein is inadmissible, the place searched being not within the immediate control of the person arrested.
8.	In a leading Philippine case, Nolasco v. Patio, 139 SCRA 152, the accused who were at large for rebellion and subversion, were arrested by constabulary officers at the intersection of two streets in Quezon City at 11:30 A.M. On the same day at 12:00 noon, another team of officers searched the house of one of the accused under a warrant procured earlier in the day.
After charges were filed against one of the accused for illegal possession of subversive documents, a motion to suppress the evidence obtained from the search of the house was filed. The motion was anchored on the alleged void character of the search warrant for its failure to particularly describe the things to be seized and for lack of searching questions propounded to the applicant's witnesses. The Supreme Court held the warrant void in a later proceeding but did not order the return of the items confiscated because the search of the house could have accordingly been validly effected even without a warrant. Accordingly, considering that the accused has been charged with rebellion, which is a crime against public order, the warrant for her arrest not having been served for a considerable period of time, and the search having been made just within half an hour after her arrest, "we are of the opinion" said the Court, that the search . . . did not need a search warrant: this, for possible effective results in the interest of public order." What must be considered according to the Court is the balancing of the individual's right to privacy and the public's interest in the prevention of crime and the apprehension of criminals.
To the majority pronouncement which justified a warrantless search as an incident to a lawful arrest, a dissenting
opinion was interposed by Justice Teehankee, calling the majority decision "patently against the constitutional proscription and settled law and jurisprudence." While the Rules of Court allows a warrantless search of a person who is lawfully arrested, the rule, in the opinion of Justice Teehankee, is limited to his person at the time of and incident to his arrest and to dangerous weapons or anything which may be used as proof of the commission of the offense. "Such warrantless search obviously cannot be made in a place other than the place of arrest...To hold that her dwelling could be searched without a warrant is to sanction an untenable violation, if not nullification, of the cited basic constitutional rights against unreasonable searches and seizures."
Justice Cuevas and Justice Abad Santos likewise lodged strong dissents. Justice Cuevas, with whom Justice Teehankee concurred, on his part opined that the lawful arrest justifying the validity of the warrantless search must be limited to and circumscribed by the subject, time and place of the arrest. "As to subject, the warrantless search is sanctioned only with respect to the person of the suspect, and things that may be seized from him are limited to "dangerous weapons" or "anything which may be used as proof for the commission of the offense. . .With respect to the time and place of the warrantless search.. .it must be contemporaneous with the lawful arrest. ...to be valid it must have been conducted at about the time of the arrest or immediately thereafter and only at the place where the suspect was arrested." Justice Cuevas added: " . . . in addition to a lawful arrest, the search must be incident to the arrest and the search must be made at the place of the arrest, otherwise it is not incident to the arrest" (citations omitted).
Acting on a partial motion for reconsideration of the Court's decision, the Court reconsidered and ordered the return of the items seized to the petitioner. In doing so, the Court adopted the rationale in the dissent of Justice Teehankee CNolasco v. Pano, 147 SCRA 509).
9.	Espano v. Court of Appeals, 288 SCRA 558, is one of the cases which drives home the point on the concept of a
UPDATED EDITION
search incident to a lawful arrest. Here, police officers arrested the accused in flagrante delicto selling marijuana in a street corner. The search of his person yielded two cellophane bags of marijuana. When asked if he had more, he admitted he had marijuana in his house. The policemen then proceeded to the house of the accused and made a search which yielded ten more cellophane tea bags of marijuana. The Court held that the articles seized from the accused during his arrest were valid under the doctrine of a search made incidental to a lawful arrest. The search may extend beyond the person of the person arrested to include the premises or surroundings under his immediate control. The warrantless search however, of the house of the accused which yielded marijuana became unlawful since the police officers were not armed with a search warrant at the time. Moreover, the house of the accused was beyond his reach and control.
10.	Earlier in People v. Lua, 256 SCRA 539, a similar pronouncement was made by the Court. The accused in Lua was arrested outside his house in flagrante delicto in a buy- bust operation. The Court found nothing objectionable in the body search of the person arrested and the confiscation of the bags of marijuana and a paltik revolver in his person. However, the subsequent search of the house of the arrestee was found invalid and the marijuana found therein considered inadmissible. The search of the house according to the Court is not within the contemplation of a "search incident to a lawful arrest." The house, at the time of his arrest was not within the reach and control of the arrestee.
Searches of moving vehicles
1.	A warrantless search of a moving vehicle is justified on the ground that "it is not practicable to secure a warrant because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought" (People v. Tuazon, 532 SCRA 152, September 3,2007).
2.	When a vehicle is flagged down and subjected to an extensive search, such a warrantless search has been held
to be valid as long as the officers conducting the search have reasonable or probable cause to believe prior to the search that they would find the instrumentality or evidence pertaining to a crime, in the vehicle to be searched (People v. Tuazon, 532 SCRA 152, September 3, 2007; See Carrol v. U.S., 267 U.S. 132).
3.	"Nevertheless, the exception from securing a search warrant when it comes to moving vehicles does not give the police authorities unbridled discretion to conduct a warrantless search of an automobile. To do so would render the aforementioned constitutional stipulations inutile and expose the citizenry to indiscriminate police distrust which could amount to outright harassment. Surely, the policy consideration behind the exemption of search of moving vehicles does not encompass such arbitrariness on the part of the police authorities. In recognition of the possible abuse, jurisprudence dictates that at all times, it is required that probable cause exist in order to justify the warantless search of a vehicle (Caballes v. Court of Appeals, 424 Phil. 224 as cited in People v. Tuazon, G.R. No. 175783, September 3,2007).
Check points
1. In the famous case of Valmonte v. De Villa, G.R. No. 83988, May 24,
1990, the Court declared that nowhere in its decision did the Court legalize all checkpoints, i.e. at all times and under all circumstances and what it declared was that the checkpoints are not illegal per se. The Court went on to hold that "under exceptional circumstances, as where the survival of organized government is on the balance, or where the lives and safety of the people are in grave peril, checkpoints may be allowed and installed by the government. Implicit in this proposition is, that when the situation clears and such grave perils are removed, checkpoints will have absolutely no reason to remain, x x x For as long as the vehicle is neither searched nor its occupants subjected to a body search, and the inspection of the vehicle is limited to a visual search, said routine checks cannot be regarded as violative of an individual's right against unreasonable search."

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Citing American jurisprudence, the court added that routine checks, when conducted in a fixed area, are even less intrusive and are permissible. Routine checkpoint stops do not intrude similarly on the motoring public.
Also, automobiles, because of their mobility, may be searched without a warrant upon facts not justifying a warrantless search of a residence or office (Brinegar v. United States, 338 US 160, 93 L Ed 1879, 69 S Ct 1302 [1949]; Carroll v. United States, 267 US 132, 69 L Ed 543,45 S Ct 280,39 ALR 790 [1925]). The cases so holding have, however, always insisted that the officers conducting the search have reasonable or probable cause to believe that they will find the instrumentality of a crime or evidence pertaining to a crime before they begin their warrantless search (Valmonte v. De Villa, G.R. No. 83988, May 24,1990).
2.	Searches conducted in checkpoints are valid for as long as they are warranted by exigencies of public order and are conducted in a way least intrusive to motorists. For as long as the vehicle is neither searched nor its occupants subjected to a body search, and the inspection of a vehicle is limited to a visual search, said routine checks cannot be regarded as violative of an individual's right against unreasonable searches (People v. Vinecario, G.R. No. 141137, January 20, 2004,420SCRA280).
3.	A more recent case affirming De Villa and Vinecario holds that not all checkpoints are illegal. Those which are warranted by the exigencies of public order and are conducted in a way least intrusive to motorists are allowed. For, admittedly, routine checkpoints do intrude, to a certain extent, on motorists' right to "free passage without interruption," but it cannot be denied that, as a rule, it involves only a brief detention of travelers during which the vehicle's occupants are required to answer a brief question or two. For as long as the vehicle is neither searched nor its occupants subjected to a body search, and the inspection of the vehicle is limited to a visual search, said routine checks cannot be regarded as violative of an individual's right against unreasonable search. In fact, these routine checks, when conducted in a fixed area,
are even less intrusive (Abenes v. Court of Appeals, G.R. No. 156320, February 14, 2007).
Buy bust operations; warrant not needed (Bar 2003)
1.	A buy-bust operation is a form of entrapment legally employed by peace officers as an effective way of apprehending drug dealers in the act of committing an offense. This police operation has judicial sanction as long as it is carried out with due respect to constitutional and legal safeguards (People v. Ramos, G.R. No. 180508, September 4, 2009; People v. Tion, G.R. No. 172092, December 16, 2009; People v. Sembrano, G.R. No. 185848, August 16,2010) although there are no rigid or textbook methods on the right or proper way of conducting such operations (People of the Philippines v. Joey Tion y Cabadu, G.R. No. 172092, December 16,2009).
2.	A search warrant or warrant of arrest is not needed in a buy-bust operation because here the accused is caught in flagrante delicto (People v. Araneta, G.R. No. 191064, October 20, 2010; People v. Feliciano, G.R. No. 190179, October 20, 2010). It catches the violator in flagrante delicto and the police officers conducting the operation are not only authorized but duty-bound to apprehend the violator and to search him for anything that may have been part of or used in the commission of the crime (People v. Naquita, G.R. No. 180511, July 28, 2008; People v. Agulay, G.R. No. 181747, September 26, 2008; People v. Guiara, 600 SCRA 310; People v. Macatingag, G.R. No. 181037, January 19,2009).
Similar pronouncements have been made in other cases. Hence, it was ruled that an arrest made after an entrapment operation does not require a warrant. Such warrantless arrest is considered reasonable and valid under Sec. 5(a), Rule 113 of the Rules of Court (People v. Bohol, G.R. No. 171729, July 28, 2008, 560 SCRA 232). When an arrest is made during an entrapment operation, it is not required that a warrant be secured in line with the provisions of Sec. 5(a), Rule 113 of the Revised Rules of Court allowing warrantless arrests. Under the said rule, a peace officer or a private person may, without
UPDATED EDITION
a warrant, arrest a person when, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense (People v. Michael Sembrano y Castro, G.R. No. 185848, August 16,2010; People v. Araneta, G.R. No. 191064, October 20, 2010). The accused is caught in the act and must be apprehended on the spot. (People of the Philippines v. Elizabeth Marcelino y Reyes, G.R. No. 189278, July 26,2010).
3. In one case where the accused assailed the validity of a buy-bust operations, it was ruled that from the very nature of a buy-bust operation, the absence of a warrant does not make the arrest illegal. The illegal drug seized is not the "fruit of the poisonous tree" as the defense alleges. The seizure made by the buy-bust team falls under a search incidental to a lawful arrest under Sec. 13, Rule 126 of the Rules of Court. Since the buy-bust operation was established as legitimate, it follows that the search was also valid, and a warrant was likewise not needed to conduct it (People of the Philippines v. Elizabeth Marcelino y Reyes, G.R. No. 189278, July 26,2010).
Entrapment and instigation
1.	Entrapment is the employment of such ways and means for the purpose of trapping or capturing a lawbreaker. On the other hand, instigation is the means by which the accused is lured into the commission of the offense charged in order to prosecute him. One form of entrapment is the buy-bust operation. It is legal and has been proved to be an effective method of apprehending drug peddlers, provided due regard to constitutional and legal safeguards is undertaken (People of the Philippines v. Victorio Pagkalinawan, G.R. No. 184805, March 3, 2010; People v. Dansico, G.R. No. 178060, February 23,2011).
2.	Instigation means luring the accused into a crime that he, otherwise, had no intention to commit, in order to prosecute him. On the other hand, entrapment is the employment of ways and means in order to trap or capture a lawbreaker. Instigation presupposes that the criminal intent to commit an offense originated from the inducer and not the accused who had no intention to commit the crime and would not have committed it were it not for the initiatives by the inducer. In entrapment, the criminal intent or design to commit the offense charged originates in the mind of the accused; the law enforcement officials merely facilitate the apprehension of the criminal by employing ruses and schemes. In instigation, the law enforcers act as active co-principals. Instigation leads to the acquittal of the accused, while entrapment does not bar prosecution and conviction (People v. Dansico, G.R. No. 178060, February 23, 2009; Suggested related readings: People v. Naelga, G.R. No. 171018, September 11, 2009; People v. Lazaro, G.R. No. 186418, October 16, 2009). In the Philippines, entrapment is not a defense available to the accused. It is instigation that is available as a defense and is an absolutory cause (People v. Doria, 301 SCRA 668, 694).
Applicable tests in a buy-bust operation; adoption of the 'objective test'
1.	There is no rigid or textbook method in conducting a buy-bust operation (People v. Tion, G.R. No. 172092, December 16, 2009). However, in determining the occurrence of entrapment, two tests have been developed: the subjective test and the objective test (22 C.J.S. CRIMLAW § 77).
2.	Under the "subjective" view of entrapment, the focus is on the intent or predisposition of the accused to commit a crime. Under the "objective" view, on the other hand, the primary focus is on the particular conduct of law enforcement officials or their agents and the accused's predisposition becomes irrelevant (See People v. Smith, 31 Cal. 4th 1207, 7 Cal. Rptr. 3d 559, 80 P.3d 662 [2003]; State v. Vallejos, 1997- NMSC-040, 123 N.M. 739, 945 P.2d 957 [1997]; Elders v. State, 321 Ark. 60, 900 S.W.2d 170 [1995]; State v. Babers, 514 N.W.2d 79 [Iowa 1994]; State v. Nehring, 509 N.W.2d 42 [N.D. 1993]; State v. Nakamura, 65 Haw. 74, 648 P.2d 183 [1982]; State v. Little, 121 N.H. 765, 435 A.2d 517 [1981]; State v. Berger, 285 N.W.2d 533 [N.D. 1979]; People v. Barraza, 23 Cal. 3d 675, 153 Cal. Rptr.
459, 591 P.2d 947
UPDATED EDITION
[1979]). The government agent's act is evaluated in the light of the standard of conduct exercised by reasonable persons generally and whether such conduct falls below the acceptable standard for the fair and honorable administration of justice (Keaton v. State, 253 Ga. 70, 316 S.E.2d 452 [1984]; Bruce v. State, 612 P.2d 1012 [Alaska 1980]).
3.	It appears that Philippine courts have leaned towards the adoption of the "objective" test in upholding the validity of a buy-bust operation. In People v. Doria, 301 SCRA 668, the Court stressed that, in applying the "objective" test, the details of the purported transaction during the buy-bust operation must be clearly and adequately shown, i.e., the initial contact between the poseur-buyer and the pusher, the offer to purchase, and the promise or payment of the consideration until the consummation of the sale by the delivery of the illegal drug subject of the sale. It is further emphasized that the "manner by which the initial contact was made, whether or not through an informant, the offer to purchase the drug, the payment of the 'buy-bust' money, and the delivery of the illegal drug, whether to the informant alone or the police officer, must be subject of strict scrutiny by courts to insure that law-abiding citizens are not unlawfully induced to commit an offense" (People v. Lim, G.R. No. 187503, September 11, 2009; People v. Cortez, G.R. No. 183819, July 23,2009).
4.	The "objective" test in buy-bust operations demands that the details of the purported transaction must be clearly and adequately shown. This must start from the initial contact between the poseur-buyer and the pusher, the offer to purchase, the promise or payment of the consideration until the consummation of the sale by the delivery of the illegal drug subject of the sale. The manner by which the initial contact was made, whether or not through an informant, the offer to purchase the drug, the payment of the "buy-bust" money, and the delivery of the illegal drug, whether to the informant alone or the police officer, must be the subject of strict scrutiny by courts to insure that law-abiding citizens are not unlawfully induced to commit an offense. Criminals must be caught but not at all cost. At the same time, however, examining the

conduct of the police should not disable courts into ignoring the accused's predisposition to commit the crime. If there is overwhelming evidence of habitual delinquency, recidivism or plain criminal proclivity, then this must also be considered. Courts should look at all factors to determine the predisposition of an accused to commit an offense in so far as they are relevant to determine the validity of the defense of inducement (People v. Araneta, G.R. No. 191064, October 20, 2010; People of the Philippines v. Victorio Pagkalinawan, G.R. No. 184805, March 3,2010).
Effect of absence of prior surveillance before a buy-bust operation
1.	Owing to the special circumstances surrounding the drug trade, a buy-bust operation can be carried out after a long period of planning (People of the Philippines v. SP03 Sangki Ara y Mirasol, et al., G.R. No. 185011, December 23,2009) but no rule requires a prior surveillance of the suspected offender before conducting a buy-bust operation (People v. Cruz, G.R. No. 185381, December 16,2009).
In People v. Concepcion, G.R. No. 178876, June 27, 2008, the Court explained that the absence of a prior surveillance or test buy does not affect the legality of the buy-bust operation. There is no textbook method of conducting buy-bust operations. The Court has left to the discretion of police authorities the selection of effective means to apprehend drug dealers. A prior surveillance, much less a lengthy one, is not necessary especially where the police operatives are accompanied by their informant during the entrapment. Flexibility is a trait of good police work. Also, the failure of the operatives to record the boodle money will not render the buy-bust operation illegal. The recording of marked money used in a buy-bust operation is not one of the elements for the prosecution of sale of illegal drugs. The recording or non-recording thereof in an official record will not necessarily lead to an acquittal as long as the sale of the prohibited drug is adequately proven.
2.	Quinicot v. People, G.R. No 179700, June 22, 2009, also declares that a prior surveillance, much less a lengthy
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one, is not necessary, especially where the police operatives are accompanied by their informant during the entrapment. Flexibility is a trait of good police work and that when time is of the essence, the police may dispense with the need for prior surveillance (See also People of the Philippines v. Danilo Cruz y Culala, G.R. No. 185381, December 16,2009).
Effect of absence of record in police blotter
In relation to prosecution for illicit drugs, the non- recording of the buy-bust money in the police blotter will not affect the validity of the operations. Neither law nor jurisprudence requires that the buy-bust money be entered in the police blotter. The "non-recording of the buy-bust operation and buy-bust money in the police blotter is not essential, since they are not elements in the illegal sale of dangerous drugs." The only elements necessary to consummate the crime is proof that the illicit transaction took place, coupled with the presentation in court of the dangerous drug seized as evidence (People v. Hernandez, G.R. No. 184804, June 18,2009).
Plain view doctrine (Bar 2007; 2008)
1.	A theoretical example could illustrate the principle particularly well. For instance, a policeman flags down a car for a traffic violation. When the officer approaches the car, he sees in the front seat of the car a sub machinegun and two hand grenades, items not normally issued to civilians. After a few inquiries and having determined the absence of a license for the items, the officer now has a reasonable ground to seize the object without a warrant.
Also, assume that an officer goes to a residence to execute a warrant to search a house for particularly described stolen antique images. As the officers look around in the living room of the house, they see on a table, plastic sachets containing crystalline substances, which based on their training and experience are illegal drugs. Since the illegal" drugs are "in plain view," seizing them would not be an invalid warrantless seizure.

2.	Under the plain view doctrine, objects falling in the plain view of an officer who has a right to be in the position to have that view are subject to seizure and may be presented as evidence. The plain view doctrine applies when the following requisites concur: (1) the law enforcement officer in search of the evidence has a prior justification for an intrusion or is in a position from which he can view a particular area; (2) the discovery of the evidence in plain view is inadvertent; and (3) it is immediately apparent to the officer that the item he observes may be evidence of a crime, contraband or otherwise subject to seizure (Judge Felimon Abelita, III v. P/Supt. German Doria and SP03 Cesar Ramirez, G.R. No. 170672, August 14, 2009; Zalameda v. People, G.R. No. 183656, September 4, 2009).
Stated in another way, the plain view doctrine permits an officer, while lawfully engaged in an activity and lawfully present in a particular place, to seize an apparently illicit object without first obtaining a warrant authorizing him to do so. It is founded on a common sense rule that when a police officer has seen or observed an object in 'plain view,' to require the officer to secure a warrant would be to engage in a needless exercise because failure to seize the object once observed might involve danger to the public and to the officer. The rule allows a law enforcement officer to make a seizure without obtaining a search warrant if evidence of criminal activity or the product of a crime can be seen without entry or search. As the U.S. Supreme Court said in Katz v. U.S., 389 U.S. 347 (1967), "whatever a person knowingly exposes to public view, even in their own home or office, is not private." In the context of searches and seizures, the principle provides that objects perceptible by an officer who is rightfully in a position to observe them can be seized without a search warrant and are admissible as evidence.
3.	In one case, the police authorities were in the area because that was where they caught up with petitioner after the chase. They saw the firearms inside the vehicle when petitioner opened the door. Since a shooting incident just took place and it was reported that petitioner was involved in the
incident, it was apparent to the police officers that the fire
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arms may be evidence of a crime. Hence, they were justified in seizing the firearms (Abelita v. P/Supt. German Doria and SP03 Cesar Ramirez, G.R. No. 170672, August 14,2009).
4.	In another case, the police were investigating a reported homicide. The police looked into the car of the accused and from the window they saw a pillowcase, backseat and a briefcase, all covered with blood. The police secured a warrant to search the car. In the course of enforcing the warrant, they saw inside the car a blood-soaked sock and a floormat. They took the things. The accused assailed the validity of the taking of the items as have been illegally taken since they were not mentioned in the affidavit supporting the application for the warrant. The Court ruled that the seizure was constitutional. The items seized were in plain view found during a search supported by a warrant (Cady v. Dombrowski, 413 U.S. 433 S. Ct. 2523, 37 L.Ed.2d 706 1973).
5.	Foreign cases have frequently given as an example of the applicability of the 'plain view* doctrine, a situation in which the police have a warrant to search a given area for specified objects, and in the course of the search come across some other article of incriminating character (Cf. Go-Bart Importing Co. v. United States, 282 U.S. 344, 358 [51 S.Ct. 153,158, 75 L.Ed. 374 (1931)]; United States v. Lefkowitz, 285 U.S. 452, 465 [52 S.Ct. 420, 423, 76 L.Ed. 877 (1932)]; Steele v. United States, 267 U.S. 498 [45 S.Ct. 414, 69 L.Ed. 757 (1925)]; Stanley v. Georgia, 394 U.S. 557, 571 [89 S.Ct. 1243, 1251,22 L.Ed.2d 542 (1969)]).
6.	The doctrine has been applied to a situation where the police officers inadvertently come across evidence while in 'hot pursuit' of a fleeing suspect (Warden v. Hayden, 387 U.S. 294,87 S.Ct. 1642,18 L.Ed.2d 782 (1967)]; cf. Hester v. United States, 265 U.S. 57 [44 S.Ct. 445, 68 L.Ed. 898 (1924)]).
The doctrine has also been applied when an incriminating object comes into view during a search incident to a lawful arrest and thus, could be searched without a warrant (Chimel v. California, 395 U.S. 752, 762-763 [89 S.Ct. 2034,2039-2040 (1969)]).

7.	The 'plain view' doctrine has been applied where a police officer is not searching for evidence against the accused, but nonetheless inadvertently comes across an incriminating object (Harris v. United States, 390 US. 234 [88 S.Ct. 992,19 L.Ed.2d 1067 (1968)]; Frazier v. Cupp, 394 U.S. 731 [89 S.Ct. 1420,22 L.Ed.2d 684 (1969)]; Ker v. California, 374 U.S. [23J 43 [83 S.Ct. 1623,1635,10 L.Ed.2d 726 (1963)].
Where the object seized was inside a closed package, the object itself is not in plain view and therefore cannot be seized without a warrant. If the package is such that an experienced observer could infer from its appearance that it contains the prohibited article, then the article is deemed in plain view (People v. Nuevas, 516 SCRA 463, February 22, 2007).
8.	The fact that the evidence is in plain view is not alone sufficient to justify a warrantless seizure. American courts which have extensively discussed the principle have held that the seizure be based also on the "immediately apparent" element. This means that the officer must have probable cause to believe that the object is evidence of a crime. Probable cause exists when "the facts and circumstances within the officer's knowledge and of which he had reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that the object is evidence of a crime CBrinegar v. U.S. 338 U.S. 160,175-176 [U.S. Supreme Court 1949]). Not only must the item be in plain view. Its incriminating character must also be "immediately apparent" (Arizona v. Hicks, 480 U.S. 321).
This principle has also been followed in Philippine decisions (Abelita v. Doria, G.R. No. 170672, August 14,2009).
9.	The principle is well illustrated in Coolidge v. New Hampshire, 403 U.S. 443,91 S.Ct. 2022,29L.Ed.2d 564, where the State endeavored to justify the seizure of the automobiles in plain view and their subsequent search at the police station. The cars were obviously in plain view, but whether or not they were evidence of a crime remained uncertain until after the interiors were swept and examined microscopically. The incriminating nature of the car was not therefore immediately

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apparent. The Court hence, held that the police, in seizing two automobiles parked in plain view on the defendant's driveway in the course of arresting the defendant, violated the constitutional right of the accused and accordingly, particles of gunpowder that had been subsequently found in vacuum sweepings from one of the cars could not be introduced in evidence against the defendant.
10. Arizona v. Hicks, 480 U.S. 321, 107 S.Ct. 1149, 94 L.Ed.2d 347, is equally illustrative. Hicks fired a bullet into the floor of his apartment. The bullet struck a person in the room apartment directly below. Responding police officers entered the apartment of Hicks and though they did not find him, they found three weapons and a stocking-cap mask.
An officer noticed two sets of expensive stereo equipment, which seemed out of place inside the squalid, rundown and ill- appointed four-room apartment and suspected that the stereo components were stolen. He recorded their serial numbers. In the process,he had to move a turntable which was in the way. That they were stolen and taken during an armed robbery were later confirmed. Hicks was subsequently arrested.
The state trial court and the Arizona Court of Appeals granted the motion to suppress all the evidence seized on the ground that the seizure was unconstitutional. When the Arizona Supreme Court denied review, the United States Supreme Court accepted the prosecutors' request for a hearing.
In Arizona v. Hicks, the Supreme Court first ruled that the warrantless entry by the officers, under the exigent circumstances exception to the warrant requirement, was valid. Next, the Court held that the mere recording of serial numbers of appliances and equipment did not constitute a seizure under the constitution, since it did not meaningfully interfere with respondent's possessory interest in either the numbers recorded or the stereo equipment. However, the moving of the equipment was a "search" separate from the search that was the lawful objective of entering the apartment. That the items were stolen were not immediately apparent and that there exists no separate justification for moving the equipment.
The 'inadvertence' requirement under the plain view doctrine
1.	Horton v. California, 496 U.S. 128, one of the leading American decisions on the plain view doctrine is enlightening. In this case, a California police officer executed a search warrant only for the proceeds of the crime of robbery. He did not find stolen property in the premises but in the course of his search, he did find weapons in plain view which he seized. During the trial, the accused moved to suppress the evidence as to the weapons on the ground that the weapons were not discovered inadvertently but on purpose and their search and seizure were not included in the warrant. The trial court refused and the accused was convicted of robbery. The California Court of Appeals affirmed.
The U.S. Supreme Court held in the case that the constitution does not require that the discovery of the evidence be inadvertent because this element is not a necessary condition of a warrantless seizure of things in plain view even if inadvertence have been mentioned as a characteristics in other legitimate plain view seizures. Accordingly, Justice Stewart's analysis of the "plain-view" doctrine in Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564, where he declared that there must be an element of inadvertence, did not command a majority, and a plurality of the Court has since made clear that the discussion is "not a binding precedent" (Texas v. Brown, 460 U.S. 730, 737, 103 S.Ct. 1535,1541, 75 L.Ed.2d 502 [1983] [opinion ofRehnquist, J.]). The suggestion that the inadvertence requirement is necessary to prevent the police from conducting general searches, or from converting specific warrants into general warrants, is not persuasive because that interest is already served by the requirements that no warrant issue unless it "particularly describ[es] the place to be searched and the persons or things to be seized" (Maryland v. Garrison, 480 U.S. 79,84,107 S.Ct. 1013,1016, 94 L.Ed.2d 72 [1987]; Steele v. United States No. 1, 267 U.S. 498, 503, 45 S.Ct. 414, 416, 69 L.Ed. 757).
2.	The "inadvertence" requirement, like in Coolidge, appears
however, to be the consistent norm in Philippine juris
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prudence (United Laboratories v. Isip, 461 SCRA 574; Abenes v. Court of Appeals, G.R. No. 156320, February 14,2007). The requirement of inadvertence means that the officer must not have known in advance of the location of the evidence and discovery is not anticipated (United Laboratories v. Isip, 461 SCRA 574; Judge Felimon Abelita, III v. P/Supt. German Doria and SP03 Cesar Ramirez, G.R. No. 170672, August 14, 2009).
Emphatically, it was ruled that the plain view doctrine does not apply where the police officers did not just accidentally discover the evidence but actually searched for it (Valeroso v. Court of Appeals, G.R. No. 164815, September 3,2009).
Other cases
1.	Abenes v. Court of Appeals, G.R. No. 156320, February 14, 2007, illustrates the doctrine within the context of Philippine jurisprudence. Here, the RTC found the accused guilty beyond reasonable doubt of illegal possession of high powered firearms and ammunition under Presidential Decree No. 1866 (P.D. No. 1866) and under another information for violation of the election gun ban. Accordingly, the prosecution convincingly established that the unlicensed .45 caliber pistol, tucked into the right waist of the petitioner, was readily visible, and, therefore, could be seized without a search warrant under the "plain view" doctrine. The Court of Appeals affirmed the decision of the Regional Trial Court because notwithstanding the absence of a search warrant, the policemen may validly seize the firearm and the same is admissible in evidence against the accused pursuant to the "plain view doctrine."
The petitioner raised before the Supreme Court the issue of violation of his constitutional right against an unlawful search and seizure. The Court, in finding against the petitioner declared that under the plain view doctrine, objects falling in the "plain view" of an officer who has a right to be in the position to have that view are subject to seizure and may be presented as evidence.
The "plain view" doctrine, stressed the Court, applies when the following requisites concur: (a) the law enforcement
officer in search of the evidence has a prior justification for an intrusion or is in a position from which he can view a particular area; (b) the discovery of the evidence in plain view is inadvertent; and (c) it is immediately apparent to the officer that the item he observes may be evidence of a crime, contraband or otherwise subject to seizure. All the foregoing requirements have been determined to be present in the instant case. The law enforcement officers lawfully made an initial intrusion because of the enforcement of the gun ban and were properly in a position from which they particularly viewed the area. In the course of such lawful intrusion, the policemen came inadvertently across a piece of evidence incriminating the petitioner where they saw the gun tucked into his waist. The gun was in plain view and discovered inadvertently when the petitioner alighted from the vehicle.
2.	In a case, the police who had just tracked down the petitioner and who were informed of the involvement of the petitioner in a shooting incident which just happened, saw the firearms inside the said vehicle as he opened the door of his car and got off the same. The court observed that the police authorities were in the place because it was where they caught up with the petitioner who sped up in his vehicle after initially giving his agreement to go to the police headquarters to shed light on the shooting incident. They saw the firearms when the petitioner opened the door of the car. Since a shooting just took place, and it was reported that the petitioner was involved, it was apparent to the authorities that the firearms may be evidence of the crime. Hence, they were justified in seizing the firearms under the plain view doctrine (Abelita, III v. Doria, G.R. No. 170762, August 14, 2009).
3.	When a police officer sees a person placing a plastic sachet containing white crystalline substance into her cigarette case, it was in his plain view (Esquillo v. People, G.R. No. 182010, August 25,2010).
4.	In another case, the arrest was legally made in flagrante delicto. In the course of the arrest, the police, aside from seeing the arrestee throw away a tooter, also
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saw various drug paraphernalia scattered on top of his bed. These circumstances, according to the Court, were sufficient to justify the warrantless search and seizure because objects falling in the 'plain view* of an officer who has a right to be in the position to have that view are subject to seizure (Zalameda v. People, G.R. No. 183656, September 4,2009).
5.	In cases where the search is made pursuant to a duly issued warrant, the Court allows the seizure of objects, articles or papers not even described in the warrant when they are in the plain view of the officer. But when not described in the warrant, such objects seized are not presumed to be in plain view. "The State is required to adduce evidence, testimonial or documentary, to prove the confluence of the essential requirements for the doctrine to apply among which is that the officer must discover incriminating evidence inadvertently9 (United Laboratories v. Isip, 461 SCRA 574).
6.	That it must be immediately apparent to the officer that the items observed may be an evidence of a crime is another important element of the doctrine. This requirement means that the incriminating nature of the evidence becomes apparent if the officer, at the moment of seizure had probable cause to connect it to a crime without the benefit of an unlawful search or seizure. To be immediately apparent, the rule does not require an unduly high degree of certainty as to the incriminating character of the evidence. "It requires merely that the seizure be presumptively reasonable assuming that there is probable cause to associate the property with criminal activity; that a nexus exists between a viewed object and criminal activity" (United Laboratories v. Isip, 461 SCRA 574).
United Laboratories explains in unequivocal language that the plain view doctrine is not an exception to the warrant requirement but merely serves to supplement the prior justification — whether it be a warrant for another object, hot pursuit, search as an incident to a lawful arrest or some other legitimate reason for being present, unconnected with a search directed against the accused. The Court significantly stressed that the plain view doctrine cannot be made to extend to a

general exploratory search from one object to another until something incriminating at last emerges. The doctrine is a recognition however, of the fact that when executing police officers come across immediately upon incriminating evidence not covered by the warrant, they should not be required to close their eyes to it, regardless whether it is evidence of the crime they are investigating or evidence of some other crime because it would be needless to require the police to obtain another warrant. Under the plain view doctrine, there is no legitimate expectation of privacy and there is no search within the meaning of the Constitution.
7.	In one case, the Court gave no credence to the claim that the plain view doctrine applies.
In 1996 the accused, Valeroso was charged with violation of Presidential Decree No. 1866 for illegal possession of firearms and later was convicted by the trial court. On appeal, the Court of Appeals affirmed the conviction. On petition for review, the Supreme Court affirmed the decision of the Court of Appeals. The subsequent motion for reconsideration was denied by the Court with finality.
Undaunted, the accused implored the Court through a Letter-Appeal to once more take a contemplative reflection and deliberation on the case, focusing on his breached constitutional rights against unreasonable search and seizure.
The Office of the Solicitor General (OSG) filed a Manifestation in which it changed it previous position on the case and instead recommended the acquittal of the accused. The OSG claimed that after a second look at the evidence presented, the OSG considers the testimonies of the witnesses for the defense more credible and concluded that the subject was obtained by the police officers in violation of his constitutional right against illegal search and seizure, and should thus be excluded from the evidence for the prosecution.
After considering anew arguments through the Letter- Appeal, together with the OSG's position recommending his acquittal, and that substantial rights must ultimately
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reign supreme over technicalities, the Court was swayed to reconsider.
The Court found that the accused was arrested by virtue of a warrant of arrest allegedly for kidnapping with ransom. At that time, he was sleeping inside the boarding house of his children. He was awakened by the arresting officers who were heavily armed. They pulled him out of the room, placed him beside the faucet outside the room and tied his hands and then put him under the care of a police officer. The other police officers remained inside the room and ransacked the locked cabinet where they found the subject firearm and ammunition. With such discovery, the accused was charged with illegal possession of firearm and ammunition.
From the foregoing narration of facts, the Court concluded that the arresting officers served the warrant of arrest without any resistance from the accused. They placed him immediately under their control by pulling him out of the bed, and bringing him out of the room with his hands tied. To be sure, the cabinet which was locked and forcibly opened could no longer be considered as an "area within his immediate control" because there was no way for him to take any weapon or to destroy any evidence that could be used against him.
The arresting officers would have been justified in searching the person of the accused as well as the tables or drawers in front of him, for any concealed weapon that might be used against the former. But under the circumstances obtaining, there was no comparable justification to search through all the desk drawers and cabinets or the other closed or concealed areas in that room itself.
The Court amplified:
"It is worthy to note that the purpose of the exception (warrantless search as an incident to a lawful arrest) is to protect the arresting officer from being harmed by the person arrested, who might be armed with a concealed weapon, and to prevent the latter from destroying evidence within reach. The exception, therefore, should not be strained beyond what is needed to serve its purpose. In >

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the case before us, search was made in the locked cabinet which cannot be said to have been within Valeroso's immediate control. Thus, the search exceeded the bounds of what may be considered as an incident to a lawful arrest.
Nor can the warrantless search in this case be justified under the "plain view doctrine."
The "plain view doctrine" may not be used to launch unbridled searches and indiscriminate seizures or to extend a general exploratory search made solely to find evidence of defendant's guilt. The doctrine is usually applied where a police officer is not searching for evidence against the accused, but nonetheless inadvertently comes across an incriminating object.
x x x What the "plain view" cases have in common is that the police officer in each of them had a prior justification for an intrusion in the course of which he came inadvertently across a piece of evidence incriminating the accused. The doctrine serves to supplement the prior justification — whether it be a warrant for another object, hot pursuit, search incident to lawful arrest, or some other legitimate reason for being present unconnected with a search directed against the accused — and permits the warrantless seizure. Of course, the extension of the original justification is legitimate only where it is immediately apparent to the police that they have evidence before them; the "plain view" doctrine may not be used to extend a general exploratory search from one object to another until something incriminating at last emerges.
Indeed, the police officers were inside the boarding house of Valeroso's children, because they were supposed to serve a warrant of arrest issued against Valeroso. In other words, the police officers had a prior justification for the intrusion. Consequently, any evidence that they would inadvertently discover may be used against Valeroso. However, in this case, the police officers did not just accidentally discover the subject firearm and ammunition; they actually searched for evidence against Valeroso.
Clearly, the search made was illegal, a violation of Valeroso's right against unreasonable search and seizure. Consequently, the evidence obtained in violation of said
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right is inadmissible in evidence against him" (Valeroso
v. Court of Appeals, G.R. No. 164815, September 3, 2009).
Terry searches or stop and frisk; history of the doctrine (Bar 1995; 2003)
1.	Suppose a police officer is on a routine patrol duty and he observes two people outside a variety store. Both his experience and training tell him that their acts are consistent with acts of people with criminal designs although he has no concrete facts showing probable cause that a crime has been committed or that it is actually being committed. He knows that mere suspicion is not sufficient to make a valid arrest but his instincts honed by years of experience in the streets tell him something untoward is imminent. May he briefly stop the persons, ask them questions and engage in a protective search for a concealed weapon short of a full scale arrest? The Supreme Court of the United States addressed a similar situation in 1968 in the landmark case of Terry v. Ohio, 392 U.S. 1.
2.	In the middle of the afternoon of October 31, 1963, veteran Police Officer Martin McFadden was in his usual beat in downtown Cleveland, a place he had covered for 30 years as member of the Cleveland police force. McFadden saw two unknown men who later were identified as Terry and Chilton, and who by their acts appeared to him to be engaged in an elaborate yet casual reconnaissance of a store. At one point, a third man, later on identified as Katz, came to confer with the first two, then disappeared and then rejoined the other two. Suspecting them to be armed, and fearing that the three were preparing to rob the store, McFadden approached the men, identified himself as a police officer and asked them to identify themselves. When they simply mumbled an answer and did not get a clear and audible response, he patted down the outer garment of Terry and felt a gun in his pocket and removed the same. A gun was also recovered from Chilton. Terry was subsequently convicted for carrying a concealed weapon. The Ohio Court of Appeals affirmed the conviction, and the Ohio Supreme Court declined to hear the case, claiming that no
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"substantial constitutional question" was involved. The U.S. Supreme Court then took cognizance of the case. In the Supreme Court, Terry contended that there existed no probable cause for his arrest, that since the "stop" was an arrest and that the "frisk" was a search under America's Fourth Amendment (Freedom from unreasonable searches and seizures), probable cause is required. The argument was rejected by the Supreme Court. Speaking for the Court, Chief Justice Warren declared:
"The crux of this case, however, is not the propriety of Officer McFadden's taking steps to investigate petitioner's suspicious behavior, but rather, whether there was justification for McFadden's invasion of Terry's personal security by searching him for weapons in the course of that investigation. We are now concerned with more than the governmental interest in investigating crime; in addition, there is the more immediate interest of the police officer in taking steps to assure himself that the person with whom he is dealing is not armed with a weapon that could unexpectedly and fatally be used against him. Certainly it would be unreasonable to require that police officers take unnecessary risks in the performance of their duties * * *."
The Court held that the acts of Officer McFadden were acts which a reasonably prudent man would have done in believing that Terry was armed and that he presented a threat to the officer's safety while he was investigating his suspicious behavior. The actions of Terry and Chilton were consistent with McFadden's hypothesis that these men were contemplating a daylight robbery which reasonably would have been carried out with a deadly weapon. Nothing in their conduct from the time he first noticed them until the time he confronted them and identified himself as a police officer gave him sufficient reason to negate that hypothesis. Mumbling an unclear response to the officer's distinct question did nothing to clear up the suspicion. The record, observed the Court, evidences the tempered act of a policeman who in the course

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of an investigation had to make a quick decision as to how to protect himself and others from possible danger, and he took limited steps to do so.
The Court likewise noted that Officer McFadden's actions were not invasive and overly intrusive. He patted down the outer clothing of Terry and his two companions. He did not place his hands in their pockets or under the outer surface of their garments until he had felt weapons, and then he merely reached for and removed the guns. He never did invade Katz' person beyond the outer surfaces of his clothes, since he discovered nothing in his pat down which might have been a weapon. Officer McFadden confined his search strictly to what was minimally necessary to learn whether the men were armed and to disarm them once he discovered the weapons. He did not conduct a general exploratory search for whatever evidence of criminal activity he might find.
The Court concluded that the revolver seized from Terry was properly admitted in evidence against him. At the time he seized petitioner and searched him for weapons, Officer McFadden had reasonable grounds to believe that petitioner was armed and dangerous, and it was necessary for the protection of himself and others to take swift measures to discover the true facts and neutralize the threat of harm if it materialized. The policeman carefully restricted his search to what was appropriate to the discovery of the particular items which he sought. The Court held that where a police officer observes unusual conduct which leads him reasonably to conclude in the light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, where in the course of investigating this behavior he identifies himself as a policeman and makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others' safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him. Such a search is a reasonable search and any
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weapons seized may properly be introduced in evidence against the person from whom they were taken.
Justice Harlan who wrote a concurring opinion explained:
The facts of this case are illustrative of a proper stop and an incident frisk. Officer McFadden had no probable cause to arrest Terry for anything, but he had observed circumstances that would reasonably lead an experienced, prudent policeman to suspect that Terry was about to engage in burglary or robbery. His justifiable suspicion afforded a proper constitutional basis for accosting Terry, restraining his liberty of movement briefly, and addressing questions to him, and Officer McFadden did so * * *"
"I would affirm this conviction for what I believe to be the same reasons the Court relies on. I would, however, make explicit what I think is implicit in affirmance on the present facts. Officer McFadden's right to interrupt Terry's freedom of movement and invade his privacy arose only because circumstances warranted forcing an encounter with Terry in an effort to prevent or investigate a crime. Once that forced encounter was justified, however, the officer's right to take suitable measures for his own safely followed automatically."
Summary of the Terry doctrine
1.	The Terry doctrine is of two parts: the "stop" and the "frisk." A valid "stop" by an officer requires that he has a reasonable and articulable belief that criminal activity has happened or is about to happen. The "frisk" made after the "stop" must be done because of a reasonable belief that the person stopped is in possession of a weapon that will pose a danger to the officer and others. The "frisk" must be a mere pat down outside the person's outer garment and not unreasonably intrusive.
2.	The gist of the ruling in Terry considered as constitutionally permissible a stop and frisk despite the lack of a probable cause to make a fUll scale arrest. While conceding that the search was a search as defined by the constitution, it did not agree with the accused that the constitutional pro
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hibition on unreasonable searches and seizures was violated when he was stopped and frisked without a probable cause.
The test of the conduct of an officer under similar circumstances, was not the existence of probable cause because no full arrest is made. The test instead was reasonable belief (called a genuine reason in a Philippine decision) Because of the important interest in protecting the safety of police officers, the Court held that a law enforcement officer has the authority to stop someone and do a quick surface search of their outer clothing for weapons. This is allowed if the officer has a reasonable belief based on a genuine reason and in the light of the officer's experience and the surrounding circumstances, that a crime has either taken place or is about to take place and the person to be stopped is armed and dangerous. This reasonable suspicion must be based on "specific and articulable facts" and not merely upon the officer's bare suspicion or hunch.Terry emphasized that a reasonable belief for making a stop may also be followed by a frisk which is equally reasonable which means it should not be broader than is necessary to find weapons in the person briefly stopped. The ruling that probable cause is not required in a stop and frisk situation is Terry's significant contribution to jurisprudence.
3.	Terry v. Ohio, did not justify every "stop." Before an officer stops a private citizen in the street, the act must be justified by concrete facts pointing at the least towards a possible criminal activity, where no crime is still apparent to the officer. Terry calls these concrete facts as the "specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." A mere deep suspicion by an experienced officer that criminal activity could take place is not sufficient for the application of the Terry doctrine. He must support his conclusion by particularizing the acts that led to his conclusion.
4.	In Esquillo v. People, G.R. No. 182010, August 25, 2010, the police officers were on a surveillance operation as part of their law enforcement efforts when POl Cruz saw petitioner placing a plastic sachet containing white crystalline substance into her cigarette case. Given his training as a law
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enforcement officer, it was instinctive on his part to be drawn to curiosity and to approach her. That petitioner reacted by attempting to flee after he introduced himself as a police officer and inquired about the contents of the plastic sachet all the more pricked his curiosity
Citing previous jurisprudence, the Court in Esquillo elucidated on what includes "stop-and-frisk" operation and how it is to be carried out. The court declared that the operation is the act of a police officer to stop a citizen on the street, interrogate him, and pat him for weapon(s) or contraband. The police officer should properly introduce himself and make initial inquiries, approach and restrain a person who manifests unusual and suspicious conduct, in order to check the latter's outer clothing for possibly concealed weapons. The apprehending police officer must have a genuine reason, in accordance with the police officer's experience and the surrounding conditions, to warrant the belief that the person to be held has weapons (or contraband) concealed about him (Citing People v. Chua, G.R. No. 136066-67, February 4,2003).
5. A reading of numerous jurisprudence discloses that "the "stop-and-frisk" principle serves a dual purpose: (1) the general interest of effective crime prevention and detection; and (2) the safety of the police officer to take steps to assure himself that the person with whom he deals is not armed with a deadly weapon that could be used against him.
This principle of "stop-and-frisk" search was invoked by the Court in a case where policemen chanced upon the accused who had reddish eyes, walking in a swaying manner, and who appeared to be high on drugs. Thus, the validity of the search as akin to a "stop-and-frisk" was upheld. The Court also found justifiable reason to "stop-and-frisk" the accused after considering the following circumstances: the drunken actuations of the accused and his companions, the fact that his companions fled when they saw the policemen, and the fact that the peace officers were precisely on an intelligence mission to verify reports that armed persons w[h]ere roaming the vicinity.
"What is, therefore, essential is that a genuine reason must exist, in light of the police officer's experience and
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surrounding conditions, to warrant the belief that the person who manifests unusual suspicious conduct has weapons or contraband concealed about him. Such a "stop-and-frisk" practice serves a dual purpose: (1) the general interest of effective crime prevention and detection, which underlies the recognition that a police officer may, under appropriate circumstances and in an appropriate manner, approach a person for purposes of investigating possible criminal behavior even without probable cause; and (2) the more pressing interest of safety and self-preservation which permit the police officer to take steps to assure himself that the person with whom he deals is not armed with a deadly weapon that could unexpectedly and fatally be used against the police officer" (Esquillo v. People, G.R. No. 182010, August 25, 2010) To repeat: A stop- and-frisk situation is limited to the person's outer clothing, and should be grounded upon a genuine reason, in light of the police officer's experience and surrounding conditions, to warrant the belief that the person detained has weapons concealed about him.
Terry search and a search incident to a lawful arrest
1.	A Terry search or a "stop' and "frisk" is not to be confused with a search incident to a lawful arrest. Although they result in a warrantless search, they differ in terms of the requisite quantum of proof before they may be validly effected and in their allowable scope (Malacat v. Court of Appeals, 283 SCRA 159; People v. Chua, 396 SCRA 657).
2.	A Terry stop is not a full arrest. A Terry doctrine as originally formulated, does not require a probable cause and the person is not under a full scale arrest but under a mere brief, investigative "stop" followed by a surface, non-intrusive pat down of one's outer garments to determine the presence of weapons. A search incident to a lawful arrest presupposes the existence of a probable cause for the arrest, where the person is taken under the custody of the arresting officer. The search is of the person and the area within his control. It is thus, more intrusive and is conducted not only for the purpose of finding weapons but also for the purpose of searching for
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evidence, any fruit of a crime or of things which may provide the person arrested with the means of escape.
3.	A Terry stop and frisk has a limited scope compared to a full scale arrest and search. The Terry doctrine therefore, is not judged by the more stringent requirement of probable cause which concededly applies only to an arrest and a search. What applies in a Terry stop and frisk is the reasonableness of the act of the officer. This "reasonable standard" while not sufficient to validate an arrest or a search, justifies a "terry stop and frisk."
As a general rule, a search and seizure must be carried through with judicial warrant, otherwise, such search and seizure constitutes derogation of a constitutional right (Epie, Jr. v. XJlat-Marredo, 518 SCRA 641, March 22,2007).
The Constitution does not provide a blanket prohibition against all searches and seizures — rather, the fundamental protection accorded by the search and seizure clause is that, between persons and the police, there must stand the protective authority of a magistrate clothed with the power to issue or refuse such search warrant. The responsibilities of the magistrate do not end with the granting of the warrant, but extends to the custody of the articles seized (Summerville General Merchandising Co. v. Court of Appeals, G.R. No 158767, June 26,2007).
Where the articles seized have already been found not to be the "subject of the offense" and the purpose of presenting them as evidence is no longer served, there is no justification for severely curtailing the rights of a person to his property (Summerville General Merchandising Co. v. Court of Appeals, G.R. No. 158767, June 26,2007).
Bond to ensure the return of the seized items
An order requiring the owner of seized property to file a bond to ensure the return of the seized items should the Department of Justice find probable cause against it has no

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basis in law (Sony Computer Entertainment, Inc. v. Bright Future Technologies, Inc., 516 SCRA 62, February 15,2007).
Consented Searches
1.	The consent to a warrantless search must be voluntary, that is, it must be unequivocal, specific, and intelligently given, uncontaminated by any duress or coercion. Consent to a search is not to be lightly inferred, but must be shown by clear and convincing evidence. It is the State which has the burden of proving, by clear and positive testimony, that the necessary consent was obtained and that it was freely and voluntarily given (Valdez v. People, 538 SCRA 611, November 23,2007).
2.	Jurisprudence requires that in case of consented searches or waiver of the constitutional guarantee against obstrusive searches, it is fundamental that to constitute a waiver, it must first appear that (1) the right exists; (2) the person involved had knowledge, either actual or constructive, of the existence of such right; and (3) the said person had an actual intention to relinquish the right (People v. Nuevas, 516 SCRA 463, February 22,2007).
A peaceful submission to a search or seizure is not a consent or an invitation thereto, but is merely a demonstration of regard for the supremacy of the law (People v. Nuevas, 516 SCRA 463, February 22,2007).
Effect of an illegal search and seizure; fruit of the poisonous tree doctrine (Bar 2005)
1.	The effect of an illegal search and seizure is expressed in the following constitutional provision:
"Sec. 3 (2). Any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any proceeding."
2.	A search warrant illegally obtained or secured or which is issued in violation of the constitution or the rules may be quashed through the proper motion as in a motion
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to quash the search warrant. Also, when evidence is illegally obtained, a motion to suppress the evidence is in order.
3.	The general rule is that all searches and seizures made without a warrant are invalid. The illegality of a search and a seizure occurs not only from the failure to obtain a warrant when required but also from the failure to comply with the procedures for obtaining a warrant and in the execution of the same. Such failure will result in the application of the exclusionary rule.
The exclusionary rule prevents, upon proper motion or objection, the admission of evidence illegally obtained. Thus, the most important effect of an illegal search and seizure is the exclusion of the evidence obtained from being used against the person whose rights were violated by the search, the evidence being the proverbial and jurisprudential "fruit of the poisonous tree " The violation of an individual's rights also inevitably result into civil, criminal and administrative charges against the officer responsible for the violation. (Bar 2005)
4.	The prior rule embodied in Moncado v. People's Court, 80 Phil. 2, held that the unconstitutionality of the searches and seizures does not affect the admissibility of the evidence obtained because "the criminal should not be allowed to go free because the constable has blundered." The non-exclusionary rule in Moncado was anchored on the theory that the citizen is protected by other provisions of the laws and has means of redress other than the exclusion of evidence unlawfully obtained such as actions for damages against the erring officers and the person who procured the warrant. This theory however, was subsequently rejected in Stonehill v. Diokno (20 SCRA 383).
As Stonehill declared:
" . . . the non-inclusionary rule is contrary, not only to the letter, but also, to the spirit of the constitutional injunction against unreasonable searches and seizures.
X X X
"We hold, therefore, that the doctrine adopted in the Moncado case must be, as it is hereby, abandoned..."
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Civil damages; criminal liability
1.	The proceedings under Rule 126 of the Rules of Court do not provide for the filing of counterclaims for damages against those who may have improperly sought the issuance of the search warrant. However, these aggrieved have the right to seek damages, if the circumstances warranted, by separate civil action for the wrong inflicted on them by an improperly obtained or enforced search warrant (Arthur Del Rosario, et al. v. Hellenor D. Doanto, Jr., et al., G.R. No. 180595, March 5,2010).
2.	There is civil liability based on the concept of an independent civil action for violation of a person's right to be secure in his persons, house, papers, and effects against unreasonable searches and seizures (Article 32[9], Civil Code of the Philippines). This liability is separate and distinct from any criminal liability that may arise from the Revised Penal Code like (a) violation of domicile (Article 128, Revised Penal Code), (b) search warrant maliciously obtained and abuse in the service of those legally obtained (Article 129, Revised Penal Code), or possibly (c) searching domicile without witnesses (Article 130, Revised Penal Code).
Authority of the Executive Judge and Vice Executive Judge re search warrants in Manila and Quezon City
1.	A.M. No. 99-20-09-SC dated January 25, 2000 authorizes the Executive Judges of the RTC's of Manila and Quezon City to act on all applications for search warrants involving heinous crimes, illegal gambling, dangerous drugs and illegal possession of firearms on application filed by the Philippine National Police (PNP), National Bureau of Investigation (NBI), Presidential Anti-Organized Crime Task Force (PAOC-TF), and Reaction Against Crime Task Force (REACT- TF) (Marimla v. People, G.R. No. 158467, October 16,2009).
The applications shall be personally endorsed by the Heads of said agencies, for the search of places to be particularly described therein and the seizure of properly or things as prescribed in the Rules of Court. The warrants issued may
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be served in places outside the territorial jurisdiction of said courts (A.M. No. 99-20-09 SC, January 25,2000).
2.	Although A.M. No. 99-20-09 SC provides a personal endorsement of the application by the "Heads" of the agencies mentioned, it was held that nothing in the rule prohibits such heads from delegating the ministerial duty of endorsing the application for search warrants to their assistant heads (Marimla v. People, G.R. No. 158467, October 16,2009).
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CHAPTER VI BAIL (Rule 114) Meaning, nature and purpose of bail (Bar 1998)
1.	Under the Rules of Court, bail is the security given for the release of a person in custody of the law, furnished by him or a bondsman, to guarantee his appearance before any court as required under certain specified conditions (Sec. 1, Rule 114, Rules of Court).
2.	The term bail under the Rules of Court distinguishes it from the bondsman who furnishes the security given for the provisional release of the person in custody of the law.
3.	The rule clearly specifies that the purpose of bail is to guarantee the appearance of a person before any court when so required (Sec. 1, Rule 114, Rules of Court). That the accused shall appear before the proper court whenever required by the court or by the Rules is also one of the conditions in all kinds of bail (Sec. 2[b], Rule 114, Rules of Court).
A bail application does not only involve the right of the accused to temporary liberty, but likewise the right of the State to protect the people and the peace of the community from dangerous elements (People v. Manallo, 400 SCRA 129).
4.	The right to bail is a constitutional right (Sec. 13, Article III, 1987 Constitution of the Philippines). It is personal in nature and is therefore, waivable (Paderanga v. Court of Appeals, 247 SCRA 741; Go v. Bongolan, 311 SCRA 99).
5.	The right to bail springs from the presumption of innocence accorded every accused upon whom should not be inflicted incarceration at the outset since after the trial he
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would be entitled to acquittal, unless his guilt be established beyond reasonable doubt (Paderanga v. Court of Appeals, 247 SCRA 741).
6.	Since bail is the security for the release of a person under custody of the law (Sec. 1, Rule 114, Rules of Court), it is evident that it is not intended to cover the civil liability of the accused in the same criminal case.
The money deposited as bail may however, be considered not only as bail. It may also be applied to the payment of fines and costs while the excess if any shall be returned to the accused or to whoever made the deposit (Sec. 14, Rule 114, Rules of Court).
7.	The question of granting bail to the accused is but an aspect of the criminal action, preventing him or her from eluding punishment in the event of conviction. The grant of bail or its denial has no impact on the civil liability of the accused that depends on conviction by final judgment (Heirs of Sarah Marie Palma Burgos v. Court of Appeals and Johnny Co y Yu, G.R. No. 169711, February 8,2010).
8.	When a person indicted for an offense is arrested, he is deemed placed under the custody of the law. He is placed in actual restraint of liberty in jail so that he may be bound to answer for the commission of the offense. He must be detained in jail during the pendency of the case against him, unless he is authorized by the court to be released on bail or on recognizance. All prisoners whether under preventive detention or serving final sentence cannot practice their profession nor engage in any business or occupation, or hold office, elective or appointive, while in detention (People v. Honorable Maceda, 323 SCRA 45 cited in Trillanes IV v. Pimentel, Sr., 556 SCRA 471).
9.	The presumption of innocence is not a reason for the detained accused to be allowed to hold office or practice his profession. Such presumption of innocence does not carry with it the full enjoyment of civil and political rights (Trillanes IV v. Pimentel, Sr., 556 SCRA 471, G.R. No. 179817, June 27, 2008).
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Constitutional basis of the right to bail
1.	"All persons, except those charged with offenses pun- ishable by reclusion perpetua when evidence of guilt is strong, shall, before conviction, be bailable by sufficient sureties, or be released on recognizance as may be provided by law. The right to bail shall not be impaired even when the privilege of the writ of habeas corpus is suspended. Excessive bail shall not be required" (Sec. 13, Article III, 1987 Constitution of the Philippines).
2.	The Constitution lays down the following principles on bail:
(a)	All persons shall, before conviction, be bailable. This is the general rule which makes the right to bail a constitutional right. Excepted from this general rule are those who are charged with offenses punishable by reclu- sion perpetua when evidence of guilt is strong. The per- son accused of such offense however, shall be entitled to bail when evidence of guilt is not strong.
(b)	The suspension of the privilege of the writ of habeas corpus does not impair the right to bail.
(c)	Excessive bail is not to be required.
3.	The Constitutional provision denying bail to those charged with reclusion perpetua when evidence of guilt is strong finds reiteration in the Rules of Court.
"No person charged with a capital offense, or an of- fense punishable by reclusion perpetua, or life imprison- ment, shall be admitted to bail when evidence of guilt is strong, regardless of the stage of the criminal prosecu- tion" (Sec. 7, Rule 114, Rules of Court). The provision of the Rules apply, for instance, to rape or even coup d'etat cases since both are punishable by reclusion perpetua. No distinction is made as to the political complexion of or the moral turpitude involved in the crime charged (Trillanes
IV v. Pimentel, Sr., G.R. No. 179817, June 27,2008).
4. The grant or denial of bail to a person charged with an offense punishable by at least reclusion perpetua is made
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dependent on whether or not the evidence of guilt is strong. (Bar 2002)
The Court has described this quantum of evidence by employing the terms "Proof evident," "Evident proof and "Presumption great." The first two terms were held to mean clear, strong evidence which leads a well-guarded dispassionate judgment to the conclusion that the offense has been committed as charged, that the accused is the guilty agent, and that he will probably be punished capitally if the law is administered. "Presumption great" exists when the circumstances testified to are such that the inference of guilt naturally to be drawn therefrom is strong, clear, and convincing to an unbiased judgment and excludes all reasonable probability of any other conclusion. Even though there is a reasonable doubt as to the guilt of the accused, if on an examination of the entire record the presumption is great that the accused is guilty of a capital offense, bail should be refused.
The test is not whether the evidence establishes guilt beyond reasonable doubt but rather whether it shows evident guilt or a great presumption of guilt. As such, the court is ministerially bound to decide which circumstances and factors are present which would show evident guilt or presumption of guilt (People v. Cabral, G.R. No. 131909, February 18, 1999). The word "strong" does not mean "proof beyond reasonable doubt" (Pareja v. Gomez, 5 SCRA 830).
5.	The rule is very explicit as to when admission to bail is discretionary on the part of the respondent Judge. In offenses punishable by reclusion perpetua or death, the accused has no right to bail when the evidence of guilt is strong. Thus, if the accused had been sentenced to reclusion perpetua, the bail should have been cancelled, instead of increasing it as respondent Judge did. The act of the Judge in increasing the bail bond of the accused instead of canceling it is not a mere deficiency in prudence, discretion and judgment on the part of the judge but a patent disregard of well-known rules (Dip- atuan v. Mangotara, AM. No. RTJ-09-2190, April 23,2010).
6.	Where the right to bail exists, it should not be rendered nugatory by requiring a sum that is excessive, otherwise
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the right to bail becomes meaningless. Thus, in an old case where the amount required as bail could not possibly exceed P50,000.00 for the information for murder and P25,000.00 for the other information for frustrated murder and that the Department of Justice itself did recommend the total sum of P40,000.00 for the two offenses, nothing can be clearer, therefore, that fixing the amount of PI,195,200.00 as the bail that should be posted is clearly violative of the constitutional provision (De la Camara v. Enage, 41 SCRA1).
Bail in the military
The right to bail invoked has traditionally not been recognized and is not available in the military, as an exception to the general rule embodied in the Bill of Rights. The right to a speedy trial is given more emphasis in the military where the right to bail does not exist. The unique structure of the military should be enough reason to exempt military men from the constitutional coverage on the right to bail. The argument that denial from the military of the right to bail would violate the equal protection clause is not acceptable. This guaranty requires equal treatment only of persons or things similarly situated and does not apply where the subject of the treatment is substantially different from others. The accused officers can complain if they are denied bail and other members of the military are not. But they cannot say they have been discriminated against because they are not allowed the same right that is extended to civilians (Comendador v. Villa, G.R. No. 93177, August 2,1991).
Bail in extradition proceedings
1. In Government of the United States of America v. Purganan, 389 SCRA 623, one of the issues presented for resolution was whether or not a person facing extradition is entitled to bail. The respondent maintained that this constitutional provision secures the right to bail of all persons, including those sought to be extradited, the only exception being a person who is charged with an offense punishable with reclusion perpetua, when evidence of guilt is strong. He also
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maintained that the granting of bail would, among others, be consistent with Section 4 of Rule 114 of the Rules of Court which provides when bail is a matter of right.
On the other hand, the petitioner claims that there is no provision in the Philippine Constitution granting the right to bail to a person who is the subject of an extradition request and arrest warrant.
The Court agreed with the petitioner and advanced the following reasons:
(a)	The use of the word "conviction," in the constitutional provision on bail in Section 13 of Art. Ill of the Constitution, as well as Section 4 of Rule 114 of the Rules of Court, suggests that bail applies only when a person has been arrested and detained for violation of Philippine criminal laws. It does not apply to extradition proceedings, because extradition courts do not render judgments of conviction or acquittal.
(b)	The constitutional right to bail "flows from the presumption of innocence in favor of every accused who should not be subjected to the loss of freedom as thereafter he would be entitled to acquittal, unless his guilt be proved beyond reasonable doubt." It follows, ruled the Court, "that the constitutional provision on bail will not apply to a case like extradition, where the presumption of innocence is not at issue."
(c)	Extradition proceedings are not criminal in nature but sui generis, a class in itself. Since it is not a criminal proceeding, it will not call into operation all the rights of an accused under the Bill of Rights and does not involve a determination of guilt or innocence.
The Court however, did not hold that bail never applies in extradition cases. It instead explained that" xxx bail is not a matter of right in extradition cases. However, the judiciary has the constitutional duty to curb grave abuse of discretion and tyranny, as well as the power to promulgate rules to pro
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tect and enforce constitutional rights. Furthermore, we believe that the right to due process is broad enough to include the grant of basic fairness to extraditees. Indeed, the right to due process extends to the "life, liberty or property" of every person. It is "dynamic and resilient, adaptable to every situation calling for its application."
Exception to the "no bail rule" in extradition proceedings
In establishing an exception to the "no bail rule," the Court in Government of the United States of America v. Purganan, 389 SCRA 623, ratiocinated:
"Accordingly and to best serve the ends of justice, we believe and so hold that, after a potential extraditee has been arrested or placed under the custody of the law, bail may be applied for and granted as an exception, only upon a clear and convincing showing (1) that, once granted bail, the applicant will not be a flight risk or a danger to the community:; and (2) that there exist special, humanitarian and compelling circumstances including, as a matter of reciprocity, those cited by the highest court in the requesting state when it grants provisional liberty in extradition cases therein.
"Since this exception has no express or specific statutory basis, and since it is derived essentially from general principles of justice and fairness, the applicant bears the burden of proving the above two-tiered requirement with clarity, precision and emphatic forcefulness. The Court realizes that extradition is basically an executive, not a judicial, responsibility arising from the presidential power to conduct foreign relations. In its barest concept, it partakes of the nature of police assistance amongst states, which is not normally a judicial prerogative. Hence, any intrusion by the courts into the exercise of this power should be characterized by caution, so that the vital international and bilateral interests of our country will not be unreasonably impeded or compromised. In short, while the Court is ever protective of "the sporting idea of fair play," it also recognizes the limits of its own prerogatives and the need to fulfill international obligations."

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Purganan case re-examined
Five (5) years after, on April 19, 2007, in Government of Hongkong Special Administrative Region v. Olalia, Jr., 521 SCRA 470, the Court ruled anew on the issue of whether or not bail applies to extradition cases in a petition which assailed the order of the RTC of Manila, Branch 8, granting bail to a person subject of extradition proceedings. The Court in Hongkong v. Olalia, Jr., reexamined its own ruling earlier made in Purganan.
While admitting that the ruling in the previous case of U.S. Gov't, v. Purganan falls squarely to the private respondent's case, the Court in Hongkong v. Olalia, Jr., viewed the issue in the light of the modern trend in international law placing primacy on the worth of the individual person and the sanctity of human rights.
Specifically, the court pointed out such trends, which it claims it "cannot ignore." x x x "(1) the growing importance of the individual person in public international law who, in the 20th century, has gradually attained global recognition; (2) the higher value now being given to human rights in the international sphere; (3) the corresponding duty of countries to observe these universal human rights in fulfilling their treaty obligations; and (4) the duty of th[e] Court to balance the rights of the individual under our fundamental law, on one hand, and the law on extradition, on the other."
The Philippines, added the Court, along with the other members of the family of nations, is committed to uphold fundamental human rights as well as value the worth and dignity of every person. The country has the responsibility of protecting and promoting the right of every person to liberty and due process, ensuring that those detained or arrested can participate in the proceedings before a court and to make available to every person under detention such remedies which safeguard their fundamental right to liberty. These remedies include the right to be admitted to bail.
In reexamining Purganan, the Court made the following observations:
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	UPDATED EDITION 	/
"First, that the exercise of the State's power to deprive an individual of his liberty is not necessarily limited to criminal proceedings. Respondents in administrative proceedings, such as deportation and quarantine, have likewise been detained. Second, to limit bail to criminal proceedings would be to close our eyes to our jurisprudential history. Philippine jurisprudence has not limited the exercise of the right to bail to criminal proceedings only. This Court has admitted to bail persons who are not involved in criminal proceedings. In fact, bail has been allowed in this jurisdiction to persons in detention during the pendency of administrative proceedings, taking into cognizance the obligation of the Philippines under international conventions to uphold human rights."
Noting that bail had in the past been granted in deportation proceedings, the Court reasoned that if bail can be granted in deportation cases, it sees no justification why it should not also be allowed in extradition cases. Likewise, considering that the Universal Declaration of Human Rights applies to deportation cases, there is no reason why it cannot be invoked in extradition cases. After all, both are administrative proceedings where the innocence or guilt of the person detained is not in issue.
Clearly, explained the High Court, "the right of a prospective extraditee to apply for bail in this jurisdiction must be viewed in the light of the various treaty obligations of the Philippines concerning respect for the promotion, and protection of human rights. Under these treaties, the presumption lies in favor of human liberty. Thus, the Philippines should see to it that the right to liberty of every individual is not impaired."
Bail in deportation proceedings
1.	"Aliens in deportation proceedings, as a rule, have no inherent right to bail" (Prentis v. Manoogian, 16 F. 2d. 422; U.S. ex rel. Papis v. Tomlinson, 45 F. Supp. 447; U.S. ex rel. Iaonnis v. Garfinkle 44 F. Supp. 518); and it has been held that a person arrested or detained cannot be released on
311 BAIL (Rule 114)
bail, unless that right is granted expressly by law (Bengzon v. Ocampo, et al, 84 Phil 611). Section 37(9) (e) of the Philippine Immigration Act of 1940 (Com. Act No. 613, as amended) provides that:
"Any alien under arrest in a deportation proceeding may be released under bond or under such other conditions as may be imposed by the Commissioner of Immigration."
"Note that this provision confers upon the Commissioner of Immigration the power and discretion to grant bail in deportation proceedings, but does not grant to aliens the right to be released on bail. The use of the word 'may* in said provision indicates that the grant of bail is merely permissive and not mandatory or obligatory on the part of the Commissioner. The exercise of the power is wholly discretionary (U.S. ex rel Zapp et al. v. District Director of Immigration and Naturalization, 120 F. 2d. 762; Ex parte Perkov, 45 F. Supp 864; Colyer v. Skeffington, 265 F. 17). The determination as to the propriety of allowing an alien, subject to deportation under the Immigration Act, to be released temporarily on bail, as well as the conditions thereof, falls within the exclusive jurisdiction of the Commissioner, and not in the courts of justice. The reason for this is that the courts do not administer immigration laws" (Go Tian Chai v. Commissioner of Immigration, L-20645, September 22,1966).
2.	In the case of In The Matter of the Petition for Habeas Corpus of Harvey, et al. v. Defensor-Santiago, 162 SCRA 840, the denial by the respondent Commissioner of Immigration of the petitioners' release on bail, was challenged by them. The denial was found to be in order by the Court because in deportation proceedings, the right to bail is not a matter of right but a matter of discretion on the part of the Commissioner of Immigration and Deportation.
"Thus, Section 37(e) of the Philippine Immigration Act of 1940 provides that "any alien under arrest in a deportation proceeding may be released under bond or under such other conditions as may be imposed by the Commissioner of
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Immigration." The use of the word "may" in said provision indicates that the grant of bail is merely permissive and not mandatory on the part of the Commissioner. The exercise of the power is wholly discretionary (Ong Hee Sang v. Commissioner of Immigration, L-9700, February 28, 1962, 4 SCRA 442). ^Neither the Constitution nor Section 69 of the Revised Administrative Code guarantees the right of aliens facing deportation to provisional liberty on baiT (Tiu Chun Hai, et al. v. Deportation Board, 104 Phil. 949 [1958]). As deportation proceedings do not partake of the nature of a criminal action, the constitutional guarantee to bail may not be invoked by aliens in said proceedings (Ong Hee Sang v. Commissioner of Immigration, supra; cited in Harvey v. Defensor-Santiago, supra).
3.	Since deportation proceedings do not constitute criminal actions, and an order of deportation is not a punish- ment for a crime, the right to bail guaranteed by the Constitu- tion may not be invoked by an alien in said proceedings (Ong See Hang v. Commissioner of Immigration, No. L-9700, Feb- ruary 28,1962, 4 SCRA 442; citations omitted).
Who furnishes the bail
The bail may be furnished by the bail applicant himself or by a bondsman (Sec. 1, Rule 114, Rules of Court).
Obligation and right of the bondsman; arrest without a war- rant
1.	The bondsman shall surrender the accused to the court for execution of the final judgment (Sec. 2[d], Rule 114). For the purpose of surrendering the accused, the bondsman may arrest him 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 and discretion (Sec. 23, Rule 114, Rules of Court).
2.	An accused released on bail may be re-arrested without the necessity of a warrant if he attempts to depart

from the Philippines without permission of the court where the case is pending (Sec. 23, Rule 114, Rules of Court).
3.	The authority of the bondsman to arrest or cause the arrest of the accused springs from the old principle that once the obligation of bail is assumed, the bondsman or surety becomes the jailer of the accused and is subrogated to all the rights and means which the government possesses to make his control over him effective (U.S. v. Addison and Gomez, 27 Phil. 562; People v. Gonzales, G.R. No. L-12056, January 24, 1959).
The applicant for bail must be in custody
1.	If bail is the security for the release of a person under custody, bail cannot be availed of by someone outside the custody of the law. A freeman therefore, is not entitled to bail.
2.	The rule considers bail as applicable only to a person in "custody of the law" and does not cover a person who is in the enjoyment of his physical liberty. A fugitive therefore, may not apply for bail unless he gives himself up first so he may be placed under the custody of the law.
Thus, it would be incongruous, to file a petition for bail for someone whose freedom has yet to be curtailed (Docena-Caspe v. Bagtas, 400 SCRA 37; Maguddatu v. Court of Appeals, 326 SCRA 362).
3.	Custody of the law is required before the court can act on an application for bail, but is not required for the adjudication of other reliefs sought by the defendant (Miranda v. Tuliao, 486 SCRA 377). Hence, an application for admission to bail by one who is at large is premature (Guillermo v. Reyes, 240 SCRA 154).
A person applying for admission to bail must be in the custody of the law or otherwise deprived of his liberty. A person who has not submitted himself to the jurisdiction of the court has no right to invoke the processes of that court. The judge therefore, should diligently ascertain the whereabouts of the applicant and that he indeed has jurisdiction over the body of
CRIMINAL PROCEDURE: THE BAR LECTURES SERIES / UPDATED EDITION
the accused before considering the application for bail (Pico v. Judge Combong, Jr., 215 SCRA 421; Miranda v. Tuliao, 486 SCRA 377).
As bail is intended to obtain or secure one's provisional liberty, the same cannot be posted before custody over him is acquired by the judicial authorities, either by his lawful arrest or voluntary surrender. It would be incongruous to grant bail to one who is free (Paderanga v. Court of Appeals, 247 SCRA 241). The rationale behind this rule is to discourage and prevent the practice where the accused could just send another in his stead to post his bail, without recognizing the jurisdiction of the court by his personal appearance (Miranda v. Tuliao, 486 SCRA 377).
4.	A person is said to be in custody if he is arrested by virtue of a warrant or even without a warrant pursuant to the Rules of Court or if he voluntarily submits himself to the jurisdiction of the court as when he surrenders to the proper authorities (People v. Gako, Jr., 348 SCRA 334).
A person is deemed to be under the custody of the law either when he has been arrested or has surrendered himself to the jurisdiction of the court. The accused who is confined in a hospital may be deemed to be in the custody of the law if he clearly communicates his submission to the court while confined in a hospital (Paderanga v. Court of Appeals, G.R. No. 115407, August 28, 1995; Defensor-Santiago v. Vazquez, 217 SCRA 633).
5.	In Defensor-Santiago v. Vasquez, 217 SCRA 633, the petitioner who was charged before the Sandiganbayan for violation of the Anti-Graft and Corrupt Practices Act, filed through counsel what purported to be an "Urgent Ex-parte Motion for Acceptance of Cash Bail Bond." Said petitioner was at the time confined in a hospital recuperating from serious physical injuries which she sustained in a major vehicular mishap. Consequently, she expressly sought leave "that she be considered as having placed herself under the jurisdiction of (the Sandiganbayan) for purposes of the required trial and other proceedings."
On the basis of said ex-parte motion

and the peculiar circumstances obtaining in that incident, the Sandiganbayan authorized petitioner to post a cash bail bond for her provisional liberty without need of her personal appearance in view of her physical incapacity and as a matter of humane consideration.
Bail to guarantee appearance of witnesses (Bar 1999)
1.	While the rule is that bail does not apply to a person who is not in custody of the law, the bail required to secure the appearance of a material witness constitutes an exception to the rule because he may he ordered to post bail even if he is not under detention. Bail may thus be required to guarantee the appearance of a material witness other than that of the accused (Sec. 14, Rule 119, Rules of Court).
"When the court is satisfied, upon proof or oath, that a material witness will not testify when required, the court, may, upon motion of either party, order the witness to post bail in such sum as may be deemed proper." If he refuses to post bail, the court shall commit him to prison until he complies or is legally discharged after his testimony has been taken.
2.	Also, "If it appears at any time before judgment that a mistake has been made in charging the proper offense, the court shall dismiss the original complaint or information upon the filing of a new one charging the proper offense" as long as the accused is not placed in double jeopardy. The court may require the witnesses to give bail for their appearance at the trial (Sec. 14, Rule 110, Rules of Court).
Bail for those not yet charged
1. What entitles a person to bail is his being under the custody of the law. Hence, "any person in custody who is not yet charged in court may apply for bail with any court in the province, city, or municipality where he is held" (Sec. 17[c], Rule 114, Rules of Court).
A person deprived of his liberty by virtue of his arrest or voluntary surrender may apply for bail as soon as he is deprived of his liberty, even before a complaint or information
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is filed against him (Serapio v. Sandiganbayan, G.R. No. 148468, January 28,2003).
2.	The application for bail shall be made with any court in the province, city or municipality where the person arrested is held.
In Ruiz v. Beldia, Jr., A.M. No. RTJ-02-1731, February 16, 2005, the person arrested was detained in Camp Crame, Quezon City, pending the filing of formal charges in court. Upon inquest, the arrestee executed a waiver of the provisions of Article 125 of the Revised Penal Code in relation to Section 7, Rule 112 of the then applicable 1985 Rules of Criminal Procedure. The Inquest Prosecutor thus set the hearing of the preliminary investigation. However, a day before the preliminary investigation, the arrestee obtained an Order of Release signed by the respondent judge who was then detailed as assisting judge of Branch 272, Regional Trial Court of Marikina City.
The Certificate of Detention issued by the PNP-TMG- SOD shows that the arrestee was detained at Camp Crame in Quezon City. The Court ruled that as correctly pointed out by the Office of the Court Administrator, the application for bail should have been filed before the proper Quezon City court and not in Marikina City.
3.	It is elementary that a municipal trial court judge has no authority to grant bail to an accused arrested outside of his territorial jurisdiction (Barbero v. Dumlao, A.M. No. MTJ-07-1682, June 19,2008).
Effects of failure to appear at the trial
1.	The failure of the accused to appear at the trial without justification despite due notice shall be deemed a waiver of his right to be present and the trial may proceed in absentia (Sec. 2[c], Rule 114, Rules of Court).
2.	The bondsman may arrest the accused for the purpose of surrendering the accused. The bondsman may also cause the accused to be arrested by a police officer or any other

person of suitable age and discretion upon written authority endorsed on a certified copy of the undertaking (Sec. 23, Rule 114, Rules of Court).
Court cannot require arraignment before the grant of bail
1.	In Lavides v. Court of Appeals, the Court ruled on the issue of whether an accused must first be arraigned before he may be granted bail. Lavides involved an accused charged with violation of Section 5(b) Republic Act No. 7610 (The Special Protection of Children Against Abuse, Exploitation and Discrimination Act), an offense punishable by reclusion temporal in its medium period to reclusion perpetua. The accused therein assailed the trial court's imposition of the condition that he should first be arraigned before he is allowed to post bail.
It was held in Lavides that the grant of bail should not be conditioned upon the prior arraignment of the accused. In cases where bail is authorized, bail should be granted before arraignment, otherwise the accused will be precluded from filing a motion to quash which is to be done before arraignment. If the information is quashed and the case is dismissed, there would be no need for the arraignment of the accused.
To condition the grant of bail on his arraignment would be to place him in a position where he has to choose between (1) filing a motion to quash and thus delay his release until his motion can be resolved because prior to its resolution, he cannot be arraigned, and (2) foregoing the filing of a motion to quash so that he can be arraigned at once and thereafter be released on bail. These scenarios undermine the accused's constitutional right not to be put on trial except upon a valid complaint or information sufficient to charge him with a crime and his right to bail (Lavides v. Court of Appeals, G.R. No. 129670, February 1,2000).
2.	In Serapio v. Sandiganbayan, G.R. No. 148468, January 28, 2003, the prosecution argued that arraignment is necessary before bail hearings may be commenced, because it is only upon arraignment that the issues are joined. Accord
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ingly, it is only when an accused pleads not guilty may he file a petition for bail and if he pleads guilty to the charge, there would be no more need for him to file said petition. The prosecution further argued that "since it is during arraignment that the accused is first informed of the precise charge against him, he must be arraigned prior to the bail hearings to prevent him from later assailing the validity of the bail hearings on the ground that he was not properly informed of the charge against him, especially considering that, under Section 8, Rule 114 of the Revised Rules of Court, evidence presented during such proceedings are considered automatically reproduced at the trial. Likewise, the arraignment of an accused prior to bail hearings diminishes the possibility of an accused's flight from the jurisdiction of the Sandiganbayan because trial in absentia may be had only if an accused escapes after he has been arraigned." It was likewise argued that "the conduct of bail hearings prior to arraignment would extend to an accused the undeserved privilege of being appraised of the prosecution's evidence before he pleads guilty for purposes of penalty reduction."
The contention of the accused petitioner that the arraignment of an accused is not a prerequisite to the conduct of hearings on his petition for bail was sustained. It was ruled that a person is allowed to petition for bail as soon as he is deprived of his liberty by virtue of his arrest or voluntary surrender. An accused need not wait for his arraignment before filing a petition for bail.
It is not necessary that an accused be first arraigned before the conduct of hearings on his application for bail. For when bail is a matter of right, an accused may apply for and be granted bail even prior to arraignment. The Court stressed that its ruling in Lavides also implies that an application for bail in a case involving an offense punishable by reclusion perpetua to death may also be heard even before an accused is arraigned. Further, if the court finds in such case that the accused is entitled to bail because the evidence against him is not strong, he may be granted provisional liberty even prior to arraignment; for in such a situation, bail would be "authorized"

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BAIL (Rule 114)
under the circumstances. In fine, the Sandiganbayan committed a grave abuse of its discretion amounting to excess of jurisdiction in ordering the arraignment of petitioner before proceeding with the hearing of his petition for bail
The Court in Serapio however, clarified that its pronouncements in Lavides should not be taken to mean that the hearing on a petition for bail should at all times precede arraignment, because the rule is that a person deprived of his liberty by virtue of his arrest or voluntary surrender may apply for bail as soon as he is deprived of his liberty, even before a complaint or information is filed against him. The Court cautioned that its pronouncements in Lavides should be understood in the light of the fact that the accused in said case filed a petition for bail as well as a motion to quash the informations filed against him. Hence, the ruling that to condition the grant of bail to an accused on his arraignment would be to place him in a position where he has to choose between filing a motion to quash and foregoing the filing of a motion to quash so that he can be arraigned at once and thereafter be released on bail would undermine his constitutional right not to be put on trial except upon a valid complaint or information sufficient to charge him with a crime and his right to bail.
Another related issue decided in Serapio was whether or not a motion to quash may be filed during the pendency of a petition for bail, that whether or not the motion and the petition are not inconsistent and may proceed independently of each other. Ruling on the issue, the Court finds that no such inconsistency exists between an application of an accused for bail and the filing of a motion to quash.
"x x x Bail is the security given for the release of a person in the custody of the law, furnished by him or a bondsman, to guarantee his appearance before any court as required under the conditions set forth under the Rules of Court. Its purpose is to obtain the provisional liberty of a person charged with an offense until his conviction while at the same time securing his appearance at the trial. As stated earlier, a person may apply
 	CRIMINAL PROCEDURE: THE BAR LECTURES SERIES
UPDATED EDITION
for bail from the moment that he is deprived of his liberty by virtue of his arrest or voluntary surrender.
On the other hand, a motion to quash an Information is the mode by which an accused assails the validity of a criminal complaint or Information filed against him for insufficiency on its face in point of law, or for defects which are apparent in the face of the Information. An accused may file a motion to quash the Information, as a general rule, before arraignment.
These two reliefs have objectives which are not necessarily antithetical to each other. Certainly, the right of an accused to seek provisional liberty when charged with an offense not punishable by death, reclusion perpetua or life imprisonment, or when charged with an offense punishable by such penalties but after due hearing, evidence of his guilt is found not to be strong, does not preclude his right to assail the validity of the Information charging him with such offense. It must be conceded, however, that if a motion to quash a criminal complaint or Information on the ground that the same does not charge any offense is granted and the case is dismissed and the accused is ordered released, the petition for bail of an accused may become moot and academic."
Forms of bail (Bar 1999)
1.	Bail may be given in the following forms:
(a)	corporate surety,
(b)	property bond,
(c)	cash deposit, or
(d)	recognizance (Sec. 1, Rule 114, Rules of Court).
2.	Corporate surety — This is bail furnished by a corporation. Under the Rules of Court, any domestic or foreign corporation which is licensed as a surety and authorized to act as such, may provide bail by a bond subscribed jointly by the accused and an officer of the corporation duly authorized by the board of directors (Sec. 10, Rule 114, Rules of Court). Act No. 536 enacted on
November 25, 1902 prescribes the
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conditions before corporations could be allowed to act as sureties for bonds and undertakings.
3.	Property bond — A property bond is an undertaking constituted as lien on the real property given as security for the amount of the bail. Within ten (10) days from the approval of the bond, the accused shall cause the annotation on the certificate of title on file with the Registry of Deeds. If the land is unregistered, it is annotated in the Registration Book on the space provided therefore in the Register of Deeds of the province or city where the land lies. The registration is likewise made on the corresponding tax declaration in the office of the provincial, city and municipal assessor concerned. Within ten (10) days from the performance of the above acts, the accused shall submit his compliance to the court. His failure to do so shall be sufficient cause for the cancellation of the property bond, his re-arrest and detention (Sec. 11, Rule 114, Rules of Court).
The sureties in a property bond must have the following qualifications:
(a)	Each must be a resident owner of real estate within the Philippines;
(b)	Where there is only one surety, his real estate must be worth at least the amount of the undertaking;
(c)	If there are two or more sureties, each may justify in an amount less than that expressed in the undertaking but the aggregate of the justified sums must be equivalent to the whole amount of the bail demanded.
In all cases, every surety must be worth the amount specified in his own undertaking over and above all just debts, obligations and properties exempt from execution (Sec. 12, Rule 114, Rules of Court). Every surety is also required to justify by affidavit taken before the judge that he possesses the qualifications of a surety also describing the property and all relevant matters required to be so stated by the Rules of Court. No bail shall be approved unless the surety is qualified (Sec. 13, Rule 114, Rules of Court).
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UPDATED EDITION
4.	Cash deposit — Bail may also be in the form of a cash deposit. The accused or any person acting in his behalf may deposit in cash with the nearest collector of internal revenue or provincial, city, or municipal treasurer or the clerk of court where the case is pending, the amount of bail fixed by the court or recommended by the prosecutor who investigated or filed the case. The accused shall be discharged from custody upon submission of the certificate of deposit and a written undertaking showing compliance with the requirements of the Rules of Court. The money deposited shall be considered as bail and applied to the payment of fine and costs while the excess, if any, shall be returned to the accused or to whoever made the deposit (Sec. 14, Rule 114, Rules of Court)
The deposit must be made with the persons enumerated in the rule. Irrefragably, only the collector of internal revenue, city or provincial, city or municipal treasurer is authorized to receive bail in cash. A judge is not one of those authorized to receive a deposit of cash bail; nor should such cash be kept in the judge's office, much less in his own residence (Agulan v. Fernandez, 356 SCRA 162; Naui v. Mauricio, 414 SCRA 11; Lachica v. Tormis, 470 SCRA 206).
5.	Recognizance — This is an obligation of record entered into before some court or magistrate duly authorized to take it, with the condition to do some particular act, the most usual condition in criminal cases being the appearance of the accused for trial.
A person in custody may be released on recognizance whenever allowed by law or by the Rules of Court (Sec. 15, Rule 114, Rules of Court). The release may be either on the recognizance of the accused himself or that of a responsible person (Sec. 15, Rule 114, Rules of Court).
6. Release on recognizance may be ordered by the court in the following cases:
(a)	When the offense charged is for violation of an ordinance, a light felony, or a criminal offense, the impos- able penalty of which does not exceed six (6) months im
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prisonment and/or P2,000 fine, under the circumstances provided in R.A. No. 6036;
(b)	Where a person has been in custody for a pe- riod equal to or more than the minimum of the imposable principal penalty, without application of the Indetermi- nate Sentence Law or any modifying circumstance, in which case, the court may allow his release on his own recognizance, or on a reduced bail, at the discretion of the court (Sec. 16, Rule 114, Rules of Court);
(c)	Where the accused has applied for probation, pending finality of the judgment but no bail was filed or the accused is incapable of filing one (P.D. 968, Sec. 7;
Sec. 24, Rule 114); and
(d)	In case of a youthful offender held for physical and mental examination, trial, or appeal, if he is unable to furnish bail and under the circumstances envisaged in P.D. 603, as amended (Espiritu v. Jovellanos, 280 SCRA 579).
(e)	In summary procedure, when the accused has been arrested for failure to appear when required. His release shall be either on bail or on recognizance by a responsible citizen acceptable to the court (Sec. 16,1991 Revised Rule on Summary Procedure).
Guidelines in fixing the amount of bail (Bar 1999)
1. The basic rule in fixing the amount of bail is that excessive bail shall not be required (Sec. 13, Art. Ill, Bill of Rights, 1987 Constitution of the Philippines; Sec. 9, Rule 114, Rules of Court).
In fixing bail, the amount should be high enough to assure the presence of the accused when such presence is required but no higher than is reasonably calculated to fulfill this purpose. Another principle to consider is the good of the public as well as the rights of the accused. The inability of the accused to secure bail in a certain amount is not solely to be considered and this fact does not by itself make bail excessive. When an
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	UPDATED EDITION 	/
accused has no means to bail himself out, any amount fixed, no matter how small would fall into the category of excessive bail (Villasenor v. Abano, 21 SCRA 312).
2.	The judge who issued the warrant or who granted the application for bail shall fix a reasonable amount of bail considering primarily, but not limited to, the following factors:
(a)	Financial ability of the accused to give bail;
(b)	Nature and circumstances of the offense; (c) Penalty for the offense charged;
(d)	Character and reputation of the accused;
(e)	Age and health of the accused;
(f)	Weight of the evidence against the accused;
(g)	Probability of the accused appearing at the trial;
(h)	Forfeiture of other bail;
(i)	The fact that the accused was a fugitive from justice when arrested; and
(j)	Pendency of other cases where the accused is on bail (Sec. 9, Rule 114, Rules of Court).
3.	The existence of a high degree of probability that the defendant will abscond confers upon the court no greater discretion than to increase the bond to such an amount as would reasonably tend to assure the presence of the defendant when it is wanted, such amount to be subject, of course, to the provision that excessive bail shall not be required (San Miguel v. Maceda, 520 SCRA 205).
Duration of the bail
1. The undertaking under the bail shall be effective upon approval, and unless cancelled, shall remain in force at all stages of the case until promulgation of judgment of the Regional Trial Court, irrespective of whether the case was originally filed in or appealed to it (Sec. 2[a], Rule 114, Rules of Court).
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good standing in the community a sworn statement binding himself, pending final decision of his case, to report to the Clerk of the Court hearing his case periodically every two weeks. The Court may, in its discretion and with the consent of the person charged, require further that he be placed under the custody and subject to the authority of a responsible citizen in the community who may be willing to accept the responsibility. In such a case, the affidavit herein mentioned shall include a statement of the person charged that he binds himself to accept the authority of the citizen so appointed by the Court. The Clerk of Court shall immediately report the presence of the accused person to the Court. Except when his failure to report is for justifiable reasons including circumstances beyond his control to be determined by the Court, any violation of this sworn statement shall justify the Court to order his immediate arrest unless he files bail in the amount forthwith fixed by the Court."
When bail is not allowed
Bail is not allowed in the following cases:
1.	A person charged with a capital offense, or an offense punishable by reclusion perpetua or life imprisonment, shall be not admitted to bail when evidence of guilt is strong regardless of the stage of the criminal prosecution (Sec. 7, Rule 114, Rules of Court).
2.	Bail shall not be allowed after a judgment of conviction has become final (Sec. 24, Rule 114, Rules of Court).
The rule is that no bail shall be allowed after a judgment of conviction has become final. If before finality of the judgment, the accused applies for probation, he may be allowed temporary liberty under his bail. When no bail was filed or the accused is incapable of filing one, the court may allow his release on recognizance to the custody of a responsible member of the community (Sec. 24, Rule 114, Rules of Court).
3.	Bail shall not be allowed after the accused has commenced to serve sentence (Sec. 24, Rule 114, Rules of Court).

UPDATED EDITION 	/
When bail is a matter of right (Bar 1999; 2006; 2008)
1.	The general rule is that all persons in custody shall be admitted to bail as a matter of right. This rule applies to the following situations:
(a)	before conviction by the Metropolitan Trial Court, Municipal
Trial Court, Municipal Trial Court in Cities, or Municipal Circuit Trial Court;
(b)	after conviction by the courts mentioned in letter "a;" and
(c)	before conviction by the Regional Trial Court of an offense not punishable by death, reclusion perpetua, or life imprisonment (Sec. 4, Rule 114, Rules of Court).
2.	When the records show that the accused was charged with violation of Section 15, Article III of R.A. No. 6425 which is punishable by prision correctional, following the provisions of the Constitution and the Revised Rules of Criminal Procedure, complainant is entitled to bail as a matter of right (San Miguel v. Maceda, A.M. No. RTJ-03-1749, April 4,2007).
Where bail is a matter of right and prior absconding and forfeiture is not excepted from such right, bail must be allowed irrespective of such circumstance. The existence of a high degree of probability that the defendant will abscond confers upon the court no greater discretion than to increase the bond to such an amount as would reasonably tend to assure the presence of the defendant when it is wanted, such amount to be subject, of course, to the other provision that excessive bail shall not be required. The recourse of the judge is to fix a higher amount of bail and not to cancel the same (San Miguel v. Maceda, A.M. No. RTJ-03-1749, April 4,2007).
3.	Bail is not a matter of right to a person charged with a capital offense, or an offense punishable by reclusion perpetua or life imprisonment. He shall not be admitted to bail when evidence of guilt is strong regardless of the stage of the criminal prosecution (Sec. 7, Rule 114, Rules of Court). Thus, before conviction of the accused by the Regional Trial Court for an offense punishable by death, reclusion perpetua
or life imprisonment, bail may or may not be given depending upon the strength of the evidence of guilt.
Whether or not the evidence of guilt is strong is a matter to be determined by the court after a hearing to be conducted (Sec. 8, Rule 114, Rules of Court) with notice of the hearing to the prosecutor or a requirement for him to submit his recommendation (Sec. 18, Rule 114, Rules of Court).
The prosecution has the burden of showing that evidence of guilt is strong (Sec. 8, Rule 114, Rules of Court).
4.	The exercise by the trial court of its discretionary power to grant bail to an accused charged with a capital offense thus depends on whether the evidence of guilt is strong. The court should first conduct a hearing, whether summary or otherwise in the discretion of the court to determine the existence of strong evidence or the lack of it. This hearing is to enable the judge to make an intelligent assessment of the evidence presented and merely to determine the weight of evidence for purposes of bail. In a bail hearing, the court does not sit to try the merits of the case (People v. Plaza, G.R. No. 176933, October 2, 2009).
5.	Bail is not a matter of right in cases where the person is charged with a capital offense or an offense punishable by reclusion perpetua or life imprisonment (Valerio v. Court of Appeals, 535 SCRA 453).
Remedy when bail is denied
The remedy of the petitioner from the order of the trial court denying a petition for bail is to file a petition for certiorari if the trial court committed a grave abuse of its discretion amounting to excess or lack of jurisdiction in issuing the said order (People v. Gomez, 325 SCRA 61).
When bail is a matter of discretion (Bar 1999; 2006; 2008)
1.	In Sec. 4(b) of Rule 114, recall that bail is a matter of right before conviction by the Regional Trial Court of an offense not punishable by death, reclusion perpetua or life
UPDATED EDITION 	/
imprisonment. But when the accused has been convicted in the Regional Trial Court of an offense not punishable by death, reclusion perpetua or life imprisonment, the admission to bail becomes discretionary (Sec. 5, Rule 114, Rules of Court).
Since the grant of bail is a matter of discretion, a hearing must be conducted whether or not the prosecution refuses to present evidence and the prosecutor must be notified to require him to submit his recommendation. This notice of hearing applies in all cases whether bail is a matter of right or a matter of discretion (Zuno v. Cabebe, 444 SCRA 382 citing Cortes v. Catral, 279 SCRA 1).
2.	If the grant of bail becomes discretionary when the accused has been convicted in the Regional Trial Court of an offense not punishable by death, reclusion perpetua or life imprisonment (Sec. 5, Rule 114, Rules of Court), it follows that if the penalty imposed is death, reclusion perpetua or life imprisonment, bail should be denied because this means that the reason for the conviction is that the evidence of guilt against him is strong.
Thus, in the early case of People v. Nitcha, 240 SCRA 283, the Court clearly declared that if an accused is sentenced to suffer reclusion perpetua, his conviction clearly imports that the evidence of guilt is strong.
People v. Nitcha clearly declares:
"x x x The clear implication therefore, is that if an accused who is charged with a crime punishable by re- clusion perpetua is convicted by the trial court and sen- tenced to suffer such a penalty, bail is neither a matter of right on the part of the accused nor of discretion on the part of the court. In such a situation, the court would not have only determined that the evidence of guilt is strong — which would have been sufficient to deny bail even before conviction — it would have likewise ruled that the accused's guilt has been proven beyond reasonable doubt. Bail must not then be granted to the accused during the pendency of his appeal from the judgment of conviction."

3.	It is a misconception that when an accused is charged with the crime of murder, he is not entitled to bail at all or that the crime of murder is non-bailable. The grant of bail to an accused charged with an offense that carries with it the penalty of reclusion perpetua is discretionary on the part of the trial court. In other words, the accused is still entitled to bail but no longer "as a matter of right." Instead, it is discretionary and calls for a judicial determination that the evidence of guilt is not strong in order to grant bail. The prosecution is accorded ample opportunity to present evidence because by the very nature of deciding applications for bail, it is on the basis of such evidence that judicial discretion is weighed in determining whether the guilt of the accused is strong (Eduardo San Miguel v. Maceda, A.M. No. RTJ-03- 1749, April 4, 2007, citing Andres v. Beltran, 415 Phil 598).
Where application for bail is to be filed when bail is a matter of discretion and after conviction by the Regional Trial Court
1.	The application for bail may be filed and acted upon by the trial court even if a notice of appeal has already been filed provided that the trial court has not yet transmitted the original record to the appellate court (Sec. 5, Rule 114, Rules of Court). Corollarily, if the original record has already been transmitted to the appellate court, then the application shall be filed with the said appellate court.
2.	The rule allowing the filing of the application for bail in the trial court prior to the transmission of the original record is consistent with Sec. 6 of Rule 120. The second sentence of the second paragraph of said Section provides that: " x x x The court promulgating the judgment shall have authority to accept the notice of appeal and to approve the bail bond pending appeal xxx."
3.	If the decision of the RTC convicting the accused changed the nature of the offense from non-bailable to bailable, the application for bail can only be filed with and resolved by the appellate court (Sec. 5, Rule 114, Rules of Court).
Sec. 6 of Rule 120 has a similar provision thus: " x x x i f the decision of the trial court convicting the accused changed
	UPDATED EDITION 	/
the nature of the offense from non-bailahle to bailable, the application for bail can only be filed and resolved by the appellate court"
4.	If the application for bail is granted, the accused may be allowed to continue on provisional liberty during the pendency of the appeal under the same bail. This rule is however, subject to the consent of the bondsman 6Sec. 5, Rule 114, Rules of Court). The consent of the bondsman shall be required to have provisional liberty under the same bail because of the rule in Sec. 2(a) of Rule 114, that the "undertaking shall be effective x x x until promulgation of judgment of the Regional Trial Court x x x."
When application for bail after conviction by the RTC shall be denied
1.	If the penalty imposed is death, reclusion perpetua or life imprisonment, bail should be denied since the conviction indicates strong evidence of guilt based on proof beyond reasonable doubt (People v. Nitcha, 240 SCRA 283).
2.	Even if the penalty imposed by the trial court is not any of the above but merely imprisonment exceeding six (6) years, the accused shall be denied bail, or his bail already allowed shall be cancelled, if the prosecution shows the following or other similar circumstances:
(a)	That the accused is a recidivist or a quasi-recid- ivist, a habitual delinquent or has committed the crime aggravated by the circumstance of reiteration;
(b)	That the accused has previously escaped from legal confinement, evaded sentence, or violated the conditions of his bail without valid justification;
(c)	That the accused committed the offense while under probation, parole or conditional pardon;
(d)	That the circumstances of his case indicate the probability of flight if released on bail; or
(e)	That there is undue risk that he may commit another crime during the pendency of the appeal (Sec. 5, Rule 114, Rules of Court).
The court is not authorized to deny or cancel the bail ex parte. The rule requires "notice to the accused" (Sec. 5, Rule 114, Rules of Court).
The resolution of the Regional Trial Court denying or cancelling the bail may be reviewed by the appellate court motu proprio or on motion of any party after notice to the adverse party in either case (Sec. 5, Rule 114, Rules of Court).
Bail pending appeal where penalty imposed exceeds six years
1.	In an application for bail pending appeal by an appellant sentenced by the trial court to a penalty of imprisonment for more than six years, the discretionary nature of the grant of bail pending appeal does not mean that bail should automatically be granted absent any of the circumstances mentioned in the third paragraph of Section 5, Rule 114 of the Rules of Court (Jose Antonio Leviste v. Court of Appeals, et al., G.R. No. 189122, March 17, 2010).
2.	The third paragraph of Section 5, Rule 114 applies to two scenarios where the penalty imposed on the appellant applying for bail is imprisonment exceeding six years. The first scenario deals with circumstances enumerated in the said paragraph not beingpresent. The second scenario contemplates the existence of at least one of the said circumstances. In the first situation, bail is a matter of sound judicial discretion. This means that, if none of the circumstances mentioned in the third paragraph of Section 5, Rule 114 is present, the appellate court has the discretion to grant or deny bail. An application for bail pending appeal may be denied even if the bail-negating circumstances in the third paragraph of Section 5, Rule 114 are absent. On the other hand, in the second situation, the appellate court exercises a more stringent discretion, that is, to carefully ascertain whether any of the enumerated circumstances in fact exists. If it so determines, it has no other option except to deny or revoke bail pending appeal. Thus, a finding that none of the said circumstances is present will not automatically result in the grant of bail.

	 	CRIMINAL PROCEDURE: THE BAR LECTURES SERIES
UPDATED EDITION
Such finding will simply authorize the court to use the less stringent sound discretion approach (Jose Antonio Leviste v. Court of Appeals, et al., G.R. No. 189122, March 17,2010).
3.	The appellant has no right to be freed on bail pending his appeal from the tried court's judgment where his conviction carries a penalty of imprisonment exceeding 6 years and there is a justification for the cancellation of his bail pursuant to the third paragraph of Section 5 (b), (d) and (e) of Rule 114. The inexcusable non-appearance in court of the appellant not only violated the condition of his bail that he "shall appear" before the court "whenever required" by the court or the Rules. It also showed the probability that he might flee or commit another crime while released on bail (Chua v. Court of Appeals, G.R. No. 140842, April 12,2007).
Hearing of application for bail in offenses punishable by death, reclusion perpetua, or life imprisonment; burden of proof in bail application
1.	A hearing of the application for bail is to be conducted when a person is in custody for the commission of an offense punishable by death, reclusion perpetua, or life imprisonment. In the hearing, the prosecution has the burden of showing that the evidence of guilt is strong (Sec. 8, Rule 114, Rules of Court). Bail in this type of offense is not a matter of right.
When the granting of bail is not a matter of right or is merely discretionary, as when the offense is punishable by reclusion perpetua, a hearing, whether summary or otherwise in the discretion of the court, should first be conducted to determine the existence of strong evidence or lack of it, against the accused to enable the judge to make an intelligent assessment of the evidence presented by the parties.
2.	A summary hearing is defined as "such brief and speedy method of receiving and considering the evidence of guilt as is practicable and consistent with the purpose of hearing which is merely to determine the weight of evidence for the purposes of bail. On such hearing, the court does not sit to try the merits or to enter into any nice inquiry as to

the weight that ought to be allowed to the evidence for or against the accused, nor will it speculate on the outcome of the trial or on what further evidence may be therein offered and admitted. The course of inquiry may be left to the discretion of the court which may confine itself to receiving such evidence as has reference to substantial matters, avoiding unnecessary examination and cross examination."
Reliance by the judge on the alleged "voluminous records" of the case does not suffice because the judge is mandated to conduct a hearing on the petition for bail of the accused since he knew that the crime charged is one that carries a penalty of reclusion perpetua, and in that hearing, the prosecution is entitled to present its evidence. It is worth stressing that the prosecution is equally entitled to due process.
Another compelling reason why a hearing of a petition for bail is necessary is to determine the amount of bail based on the guidelines set forth in Sec. 6 (now Sec. 9), Rule 114 of the Rules of Court. Without the required hearing, the bail which may be granted to the accused would be arbitrary and without basis (People v. Gako, Jr., 348 SCRA 334; See also for suggested reading, People v. Cabral, 303 SCRA 361; People v. Dacudao, 170 SCRA 489; Basco v. Rapatalo, 269 SCRA 220).
3.	A hearing is plainly indispensable before a judge can determine whether the evidence for the prosecution is strong.
Jurisprudence is replete with decisions compelling judges to conduct the required hearings in bail applications, in which the accused stands charged with a capital offense. The absence of objection from the prosecution is never a basis for the grant of bail in such cases. The judge has no right to presume that the prosecutor knows what he is doing on account of familiarity with the case because it has the effect of ceding to the prosecutor the duty of exercising judicial discretion to determine whether the guilt of the accused is strong. The duty to exercise discretion on the matter is not reposed upon the prosecutor because judicial discretion is the domain of the judge (Narciso v. Santa Romana-Cruz, 328 SCRA 505).
CRIMINAL PROCEDURE: THE BAR LECTURES SERIES /
	UPDATED EDITION 	/
4.	The bail hearing is mandatory in order to give the prosecution reasonable opportunity to oppose the application by proving that the evidence of guilt is strong (Tolentino v. Camano, Jr., 322 SCRA 559; Enriquez v. Sarmiento, A.M. No. RTJ-06-2011, August 7,2006).
5.	In Narciso v. Santa Romana-Cruz, 328 SCRA 505, the petitioner was charged with parricide, an offense which is punishable with reclusion perpetua. He argued before the Court of Appeals that he was entitled to bail because the evidence of his guilt was not strong as indicated by the prosecutor's conformity to his motion for bail. This conformity, argued the petitioner, was tantamount to a finding that the prosecution evidence against him was not strong.
The Court of Appeals disagreed because the records show that no hearing had been conducted on the application for bail. The appellate court found that only ten minutes had elapsed between the filing of the motion by the accused and the order granting bail. This period, according to the appellate court was not sufficient for the trial court to receive and evaluate any evidence.
The Supreme Court agreed with the Court of Appeals and stressed the duty of a judge to determine whether the evidence of guilt was strong.
The Supreme Court held:
"When the grant of bail is discretionary, the prosecution has the burden of showing that the evidence of guilt against the accused is strong. However, the determination of whether or not the evidence of guilt is strong, being a matter of judicial discretion, remains with the judge. This discretion by the veiy nature of things, may rightly be exercised only after the evidence is submitted to the court at the hearing. Since the discretion is directed to the weight of the evidence and since evidence cannot properly be weighed if not duly exhibited or produced before the court, it is obvious that a proper exercise of judicial discretion requires that the evidence of guilt be submitted to the court, the petitioner having the right of cross examination and to introduce his own evidence in rebuttal x x x.

CHAPTER VI
BAIL
(Rule 114)
"Consequently, in the application for bail of a person charged with a capital offense punishable by death, reclusion perpetua or life imprisonment, a hearing, whether summary or otherwise in the discretion of the court, must actually be conducted to determine whether or not the evidence of guilt against the accused is strong. A summary hearing means such brief and speedy method of receiving and considering the evidence of guilt as is practicable and consistent with the purpose of hearing which is merely to determine the weight of evidence for the purposes of bail. On such hearing, the court does not sit to try the merits or to enter into any nice inquiry as to the weight that ought to be allowed to the evidence for or against the accused, nor will it speculate on the outcome of the trial or on what further evidence may be therein offered and admitted. The course of inquiry may be left to the discretion of the court which may confine itself to receiving such evidence as has reference to substantial matters, avoiding unnecessary thoroughness in the examination and cross examination. If a party is denied the opportunity to be heard, there would be a violation of procedural due process."
6. It is a mandatory duty to conduct a hearing despite the prosecution's refusal to adduce evidence in opposition to the application to grant and fix bail or when the prosecution chooses to just file a comment (Goodman v. De la Victoria, 325 SCRA 658; Cortes v. Catral, 279 SCRA 1). The fact that the prosecutor interposed no objection to the application for bail by the accused does not relieve the judge of the duty to set the motion for bail for hearing (Managuelod v. Paclibon, Jr., 426 SCRA 377).
Duties of the trial judge in a petition for bail in offenses punishable by reclusion perpetua, life imprisonment or death
1.	Summarizing earlier jurisprudence, Narciso v. Santa Romana-Cruz enumerated the following duties of the trial judge in a petition for bail in offenses punishable by death, reclusion perpetua or life imprisonment:
(a)	Notify the prosecutor of the hearing of the application for bail or require him to submit his recommendation;
CRIMINAL PROCEDURE: THE BAR LECTURES SERIES /
	UPDATED EDITION 	/
(b)	Conduct a hearing of the application for bail regardless of whether or not the prosecution refuses to present evidence to show that the guilt of the accused is strong for the purpose of enabling the court to exercise its sound discretion;
(c)	Decide whether the evidence of guilt of the accused is strong based on the summary of evidence of the prosecution;
(d)	If the guilt of the accused is not strong, discharge the accused upon the approval of the bail bond. Otherwise, the petition should be denied.
"x x x The above-enumerated procedure should now leave no room for doubt as to the duties of the trial judge in cases of bail applications. So basic and fundamental is it to conduct a hearing in connection with the grant of bail in the proper cases that it would amount to judicial apostasy for any member of the judiciary to disclaim knowledge or awareness thereof.
Additionally, the court's grant or refusal of bail must contain a summary of the evidence for the prosecution, on the basis of which should be formulated the judge's own conclusion on whether such evidence is strong enough to indicate the guilt of the accused. The summary thereof is considered an aspect of procedural due process for both the prosecution and the defense; its absence will invalidate the grant or the denial of the application for bail" (Narciso v. Santa Romana-Cruz, 328 SCRA 505; People v. Cabral, 303 SCRA 361; People v. Gako, Jr., 348 SCRA 334).
2.	Even if the capital offense charged is bailable owing to the weakness of the evidence of guilt, the right to bail may justifiably still be denied if the probability of escape is great (People v. Sandiganbayan, 529 SCRA 764).
3.	A grant of bail does not prevent the trier of facts from making a final assessment of the evidence after full trial on the merits (People v.
Sandiganbayan, 529 SCRA 764, August 10, 2007).
CHAPTER VI BAIL
(Rule 114)
Evidence in bail hearing are automatically reproduced at the trial
The evidence presented during the bail hearing shall be considered automatically reproduced at the trial. However, any witness during the bail hearing may, upon motion of either party, be recalled by the court for additional examination except if such witness is dead, outside the Philippines, or otherwise unable to testify (Sec. 8, Rule 114, Rules of Court).
Capital offenses
1.	A capital offense is an offense which, under the law existing at the time of its commission and of the application for admission to bail, may be punished with death (Sec. 6, Rule 114, Rules of Court).
2.	It is clear from the Rules of Court that the capital nature of an offense is determined by the penalty prescribed by law and not the penalty to be actually imposed (Bravo v. De Borja, 134 SCRA 466).
3.	The imposition of the death penalty is now prohibited by R.A. 9346 enacted into law on June 24, 2006. Sec. 2 of R.A. 9346 provides that "in lieu of the death penalty, the following shall be imposed:
"(a) the penalty of reclusion perpetua, when the law violated makes use of the nomenclature of the penalties of the Revised Penal Code; or
"(b) the penalty of life imprisonment, when the law violated does not make use of the nomenclature of the penalties of the Revised Penal Code."
Effect of Republic Act No. 9346 on the graduation of penalties
In People v. Bon, G.R. No. 166401, October 30, 2006, the Court was confronted by the question of whether or not the enactment of R.A. No. 9346 resulted in the statutory interdiction of the death penalty. Giving rise to the issue was the sentence of reclusion temporal imposed on the accused- appellant by the Court of Appeals for the two counts of
CRIMINAL PROCEDURE: THE BAR LECTURES SERIES /
	UPDATED EDITION 	/
attempted qualified rape committed against a minor by a relative mentioned in the law. The sentence was prescribed by the appellate court prior to the enactment of R.A. No. 9346 which ended the imposition of the death penalty in the Philippines.
The concern of the accused-appellant is whether his penalty for attempted qualified rape, which under the penal law should be two degrees lower than that of consummated qualified rape, should be computed from death or reclusion perpetua. This is because Sec. 2 of R.A. No. 9346 provides that instead of the death penalty, the penalty of reclusion perpetua or life imprisonment when appropriate shall be imposed.
The Court found no doubt as to the validity this sentence at the time it was meted prior to the enactment of R.A. No. 9346. The prescribed penalty for the consummated rape of a victim duly proven to have been under eighteen years of age and to have been raped by her uncle, is death under Article 266-B of the Revised Penal Code. The determination of the penalty two degrees lower than the death penalty entails the application of Articles 61 and 71 of the Revised Penal Code.
Following the scale prescribed in Article 71, the penalty two degrees lower than death is reclusion temporal, which was the maximum penalty imposed by the Court of Appeals on appellant for attempted rape. Reclusion temporal is a penalty comprised of three divisible periods, a minimum, a medium and a maximum.
The critical question according to the Court is whether R.A. No. 9346 intended to delete the word "death" as expressly provided for in the graduated scale of penalties under Article 71.
The Court ruled in the affirmative and found R.A. No. 9346 to unequivocally bar the application of the death penalty, as well as to expressly repeal all such statutory provisions requiring the application of the death penalty. Such effect explained the Court, necessarily extends to its relevance to the graduated scale of penalties under Article 71. Hence, the

	CHAPTER VI 	341
BAIL
(Rule 114)
Court added, that it cannot find basis to conclude that R.A. No. 9346 intended to retain the operative effects of the death penalty in the graduation of the other penalties in our penal laws.
People v. Bon, however, stressed that the debarring of the death penalty through R.A. No. 9346 did not correspondingly declassify those crimes previously catalogued as "heinous." The amendatory effects of R.A. No. 9346 extend only to the application of the death penalty but not to the definition or classification of crimes. True, the penalties for heinous crimes have been downgraded under the aegis of the new law. Still, what remains extant is the recognition by law that such crimes, by their abhorrent nature, constitute a special category by themselves. Accordingly, R.A. No. 9346 does not serve as basis for the reduction of civil indemnity and other damages that adhere to heinous crimes.
Having pronounced and determined the statutory disallowance of the death penalty through R.A. No. 9346 and the corresponding modification of penalties other than death through that statute, the penalty of "death," as utilized in Article 71 of the Revised Penal Code, shall no longer form part of the equation in the graduation of penalties. Hence, in the case of accused-appellant, the determination of his penalty for attempted rape shall be reckoned not from two degrees lower than death, but two degrees lower than reclusion perpetua. Hence, the maximum term of his penalty shall no longer be reclusion temporal, as ruled by the Court of Appeals, but instead, prision mayor.
Where application or petition for bail may be filed (Bar 2002)
1.	As a general rule, the application for bail may be filed with the court where the case is pending. If the judge thereof is absent or unavailable, then the application may be filed with any Regional Trial Court judge, Metropolitan Trial Court judge, Municipal Trial Court judge, or Municipal Circuit Trial Court judge in the province, city, or municipality (Sec. 17[a], Rule 114, Rules of Court).
	UPDATED EDITION 	/
Where there is no showing that the judge of the court where the criminal case is pending is unavailable, another judge who entertains a bail application despite knowledge of the pendency of the case in another court is clearly in error (Savella v. Ines, 521 SCRA 417).
Judges who approve applications for bail of accused whose cases are pending in other courts are guilty of gross ignorance of the law (Re: Report on the Judicial Audit in RTC Branch 4, Dolores, Eastern Samar, 536 SCRA 313).
2.	Where the accused is arrested in a province, city, or municipality other than where the case is pending, the application for bail may also be filed with any Regional Trial Court of said place. If no judge thereof is available, then with any Metropolitan Trial Court judge, Municipal Trial Court judge or Municipal Circuit Trial Court judge in the said place (Sec. 17[a], Rule 114, Rules of Court).
When bail is filed with the court other than where the case is pending, the judge who accepted the bail shall forward it, together with the order of release and other supporting papers, to the court where the case is pending, which may, for good reasons, require a different one to be filed (Sec. 19, Rule 114, Rules of Court).
The failure of a judge who granted the bail to transmit the order of release and other supporting papers to the court where the case is pending constitutes violation of the rules (Savella v. Ines, 521 SCRA 417).
3.	Where the grant of bail is a matter of discretion, or the accused seeks to be released on recognizance, the application may only be filed in the court where the case is pending, on trial, or appeal (Sec. 17[b], Rule 114, Rules of Court).
4.	When a person is in custody but not yet charged, he may apply for bail with any court in the province, city or municipality where he is held (Sec. 17[c], Rule 114, Rules of Court).
In Ruiz v. Beldia, Jr., A.M. No. RTJ-02-1731, February 16, 2005, the Certificate of Detention of the person lawfully arrested without a warrant issued by the PNP-TMG-SOD
	CHAPTER VI 	343
BAIL (Rule 114)
shows that he was detained at Camp Crame in Quezon City. The application for bail should have been filed before the proper Quezon City court and not in Marikina City.
Increase or reduction of bail
1.	Even after the accused is admitted to bail, the amount of bail may either be increased or reduced by the court upon good cause (Sec. 20, Rule 114, Rules of Court).
2.	The increased amount must be given within a reasonable period if the accused wants to avoid being taken into custody. The rule is clear: "xxx When increased, the accused may be committed to custody if he does not give bail in the increased amount within a reasonable period" (Sec. 20, Rule 114, Rules of Court).
Bail for accused originally released without bail
If upon the filing of the complaint or information the accused is released without bail, he may later be required to give bail in the amount fixed by the court whenever at any subsequent stage of the proceedings a strong showing of guilt appears to the court. If he does not give bail he may be committed into custody (Sec. 20, Rule 114, Rules of Court).
Forfeiture of bail
1.	One of the conditions of the bail is for the accused to appear before the proper court whenever required (Sec. 2[b], Rule 114, Rules of Court). When his presence is required, his bondsmen shall be notified to produce him before the court on a given date and time (Sec. 21, Rule 114, Rules of Court).
2.	If he fails to appear in person as required, his bail shall be declared forfeited. The bondsmen shall be given thirty (30) days within which to produce their principal and to show cause why no judgment should be rendered against them for the amount of the bail.
The bondsmen must, within the period:
(a)	produce the body of their principal or give the reasons for his non-production; and
UPDATED EDITION 	/
(b)	explain why the accused did not appear before the court when first required to do so. Failing in these two requirements, a judgment shall be rendered against the bondsmen, jointly and severally, for the amount of the bail (Sec. 21, Rule 114, Rules of Court).
If the bondsmen move for the mitigation of their liability, the court is required not to reduce or otherwise mitigate the liability of the bondsmen, unless the accused has been surrendered or is acquitted (Sec. 21, Rule 114, Rules of Court).
3.	Judgment against the bondsmen cannot be entered unless such judgment is preceded by an order of forfeiture and an opportunity given to the bondsmen to produce the accused or to adduce satisfactory reason for their inability to do so. An order of forfeiture is interlocutory and merely requires the bondsmen "to show cause why judgment should not be rendered against them for the amount of the bond." The order is different from the judgment on the bond which is issued if the accused was not produced within the 30-day period (Mendoza v. Alarma, G.R. No. 151970, May 7,2008).
Cancellation of the bail; remedy
1.	Cancellation by application of the bondsmen — Bail may be cancelled upon application of the bondsmen with due notice to the prosecutor (a) upon surrender of the accused, or (b) proof of his death.
2.	Automatic cancellation — The bail may also be deemed automatically cancelled upon (a) acquittal of the accused, (b) dismissal of the case, or (c) execution of the judgment of conviction (Sec. 22, Rule 114, Rules of Court).
3.	Sec. 5 of Rule 114 allows the cancellation of bail where the penalty imposed by the trial court is imprisonment exceeding six (6) years if any of the grounds in the said section is present as when the circumstances indicate the probability of flight. The same section authorizes the appellate court to motu proprio or on motion of any party review the resolution of the Regional Trial Court after notice to the adverse party in either case.
	CHAPTER VI 	345
BAIL
(Rule 114)
4.	It was held in Chua v. Court of Appeals, 520 SCRA 729, that from the last paragraph of the above provision, the appropriate remedy against the trial court's order canceling the bail is by filing with the Court of Appeals a motion to review the said order in the same regular appeal proceedings which the appellant himself initiated, such motion being an incident to his appeal. The filing of a separate petition via a special civil action for certiorari before the appellate court is proscribed and contravenes the rule against multiplicity of suits and constitutes forum shopping (Chua v. Court of Appeals, G.R. No. 140842, April 12, 2007).
Application for or admission to bail not a bar to objections on illegal arrest, lack of or irregular preliminary investigation
1.	The application or admission of the accused to bail shall not bar him from challenging both the validity of his arrest or the legality of the warrant issued therefore, provided that he raises them before entering his plea. It shall not likewise bar the accused from assailing the regularity or questioning the absence of a preliminary investigation of the charge against him provided the same is raised before he enters his plea (Sec. 26, Rule 114, Rules of Court).
The court shall resolve the matter as early as practicable but not later than the start of the trial of the case (Sec. 26, Rule 114, Rules of Court).
2.	Sec. 26 of Rule 114 is a new rule intended to modify previous rulings that an application for bail or the admission to bail by the accused shall be considered as a waiver of his right to assail the warrant issued for his arrest on the legalities or irregularities thereon. The new rule is curative in nature because precisely it was designed to curb evils in procedural rules. Procedural rules as a general rule operate retroactively, even without express provisions to actions yet undetermined at the time of their effectivity (Okabe v. Gutierrez, 429 SCRA 685; Borlongan v. Pefia, G.R. No. 143591, May 5,2010).
3.	The former ruling that the posting of bail constitutes a waiver of any irregularity in the issuance of a warrant of
	UPDATED EDITION 	/
arrest, has already been superseded by Section 26, Rule 114 of the Revised Rules of Criminal Procedure. The principle that the accused is precluded from questioning the legality of the arrest after arraignment is true only if he voluntarily enters his plea and participates during trial, without previously invoking his objections thereto (Borlongan v. Pena, G.R. No. 143591, May 5,2010).
— oOo —
Chapter VII RIGHTS OF THE ACCUSED (Rule 115)
Rights of the accused at the trial (Bar 1992; 1996; 1998; 2004)
1.	The rights of the accused are normally treated in Constitutional Law specifically under the topic on the Bill of Rights. The discussion in this treatise shall be confined to selected rights of an accused.
2.	Sec. 1 of Rule 115 enumerates the rights of the accused "at the
trial."
It provides that "In all criminal prosecutions, the accused shall be entitled to the following rights:"
(a)	To be presumed innocent until the contrary is proved beyond reasonable doubt.
(b)	To be informed of the nature and cause of accusation against him.
(c)	To be present and defend in person and by counsel at every stage of the proceedings, from arraignment to promulgation of the judgment. The accused however, may waive his presence at the trial pursuant to the stipulations set forth in his bail, unless his presence is specifically ordered by the court for purposes of identification. The absence of the accused without justifiable cause at the trial of which he had notice shall be considered a waiver of his right to be present thereat. When an accused under custody escapes, he shall be deemed to have waived his right to be present on all subsequent trial dates until custody over him is regained. Upon motion,
347

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the accused may be allowed to defend himself in person when it sufficiently appears to the court that he can prop- erly protect his rights without the assistance of counsel.
(d)	To testify as a witness in his own behalf but subject to cross-examination on matters covered by direct examination. His silence shall not in any manner preju- dice him.
(e)	To be exempt from being compelled to be a wit- ness against himself.
(f)	To confront and cross-examine the witnesses against him at the trial. Either party may utilize as part of its evidence the testimony of a witness who is deceased, out of or cannot with due diligence be found in the Philip- pines, unavailable, or otherwise unable to testify, given in another case or proceeding, judicial or administrative, involving the same parties and subject matter, the ad- verse party having the opportunity to cross-examine him.
(g)	To have compulsory process issued to secure the attendance of witnesses and production of other evi- dence in his behalf.
(h)	To have speedy, impartial and public trial.
(i)	To appeal in all cases allowed and in the man- ner prescribed by law.
Presumption of innocence (Bar 2005)
1.	The presumption of innocence under the Rules is of a constitutional origin and a mere substantial reiteration of Sec. 14(2) of Art. Ill of the 1987 Constitution of the Philippines which provides:
"Sec. 14 (2) x x x In all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved x x x."
2.	An accused in criminal prosecutions is to be presumed innocent until his guilt is proven beyond reasonable
	CHAPTER VII	349
(Rule 115)
doubt. This constitutional guarantee cannot be overthrown unless the prosecution has established by such quantum of evidence sufficient to overcome this presumption of innocence and prove that a crime was committed and that the accused is guilty thereof. Under our Constitution, an accused enjoys the presumption of innocence. And this presumption prevails over the presumption of regularity in the performance of official duty (People v. Sy, G.R. No. 185284, June 22, 2009; People v. Frondozo, G.R. No. 177164, June 30, 2009; See People v. Alivio, G.R. No. 177771, May 30,2011 for related reading).
3.	Presumption of regularity in the performance of official duty should not by itself prevail over the presumption of innocence (People v. Ong, 432 SCRA 470; People v. Paloma, G.R. No. 178544, February 23, 2011). Sec. 3(m) of Rule 131, establishes the disputable presumption that"official duty has been regularly performed "
Hence, as a general rule, the testimony of the police officers who apprehended the accused is usually accorded full faith and credit because of the presumption that they have performed their duties regularly. However, when the performance of their duties is tainted with irregularities, such presumption is effectively destroyed. While the law enforcers enjoy the presumption of regularity in the performance of their duties, this presumption cannot prevail over the constitutional right of the accused to be presumed innocent and it cannot by itself constitute proof of guilt beyond reasonable doubt. The presumption of regularity is merely just that—a mere presumption disputable by contrary proof and which when challenged by evidence cannot be regarded as binding truth (People v. Cantalejo, G.R. No. 182790, April 24, 2009; See People v. Alejandro, G.R. No. 176350, August 10,2011).
Prima facie presumptions of guilt
May the Rules or the law provide for a presumption of guilt?
An example of this presumption is found in Sec. 3(j) of Rule 131 of the Rules of Court. Under this provision, "a person
found in possession of a thing taken in the doing of a recent wrongful act is the taker and the doer of the whole act x x x."
An answer to the question may be gleaned from a case decided several years ago. In that case, the petitioners were convicted of the offense of illegal fishing with the use of obnoxious or poisonous substance penalized under Presidential Decree (P.D.) No. 704, the Fisheries Decree of 1975. They challenge the provision of P.D. No. 704 which provides:
"The discovery of dynamite, other explosives and chemical compounds containing combustible elements, or obnoxious or poisonous substance, or equipment or device for electric fishing in any fishing boat or in the possession of a fisherman shall constitute a presumption that the same were used for fishing in violation of this Decree, and the discovery in any fishing boat of fish caught or killed by the use of explosives, obnoxious or poisonous substance or by electricity shall constitute a presumption that the owner, operator or fisherman were fishing with the use of explosives, obnoxious or poisonous substance or electricity."
Petitioners contend that this presumption of guilt under the Fisheries Decree violates the presumption of innocence guaranteed by the Constitution.
Citing previous pronouncements, the Court held that the validity of laws establishing presumptions in criminal cases is a settled matter. It is generally conceded that the legislature has the power to provide that proof of certain facts can constitute prima facie evidence of the guilt of the accused and then shift the burden of proof to the accused provided there is a rational connection between the facts proved and the ultimate fact presumed. To avoid any constitutional infirmity, the inference of one from proof of the other must not be arbitrary and unreasonable. In fine, the presumption must be based on facts and these facts must be part of the crime when committed.
The challenged provision of P.D. No. 704 creates a presumption of guilt based on facts proved and hence, is not con
	CHAPTER VII	351
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stitutionally impermissible. It makes the discovery of obnoxious or poisonous substances, explosives, or devices for electric fishing, or of fish caught or killed with the use of obnoxious and poisonous substances, explosives or electricity in any fishing boat or in the possession of a fisherman evidence that the owner and operator of the fishing boat or the fisherman had used such substances in catching fish. The ultimate fact presumed is that the owner and operator of the boat or the fisherman were engaged in illegal fishing and this presumption was made to arise from the discovery of the substances and the contaminated fish in the possession of the fisherman in the fishing boat. The fact presumed is a natural inference from the fact proved.
The Court however, stressed that the statutory presumption is merely prima facie. It cannot, under the guise of regulating the presentation of evidence, operate to preclude the accused from presenting his defense to rebut the main fact presumed. At no instance can the accused be denied the right to rebut the presumption (Hizon v. Court of Appeals, 265 SCRA 517).
Proof beyond reasonable doubt
1.	The presumption of innocence is not meant to be forever. It ends when it is overcome in a final conviction. There is only one type of quantum of evidence which overcomes the presumption — proof beyond reasonable doubt. Without such quantum of evidence, the accused is entitled to an acquittal (Sec. 2, Rule 133, Rules of Court). Proof beyond reasonable doubt is indispensable to overcome the constitutional presumption of innocence (People v. Montenegro, 436 SCRA 33; People v. Labagala, G.R. No. 184603, August 2,2010; See People v. Campos, G.R. No. 176061, July 4,2011 for related reading).
2.	"x x x Proof beyond reasonable doubt does not mean such a degree of proof as, excluding possibility of error, produces absolute certainty. Moral certainty only is required, or that degree of proof which produces conviction in an unprejudiced mind" (Sec. 2, Rule 133, Rules of Court).
3.	The Court in Mupas v. People, G.R. No. 172834, February 6, 2008, describes reasonable doubt as "that doubt engendered by an investigation of the whole proof and an inability after such investigation to let the mind rest each upon the certainty of guilt."
4.	The presumption of innocence requires that before the accused is convicted, his guilt must be proven beyond reasonable doubt. Sec. 2, Rule 133 of the Rules of Court does not provide that for proof to be deemed beyond reasonable doubt, absolute certainty of his guilt is required. The rule merely requires moral certainty. In criminal cases, the prosecution is not required to show the guilt of the accused with absolute certainty. Only moral certainty is demanded, or that degree of proof which, to an unprejudiced mind, produces conviction. With that, the prosecution has discharged its burden of proving the guilt of the accused with moral certainty (People v. Malate, G.R. No. 185724, June 5,2009).
The burden lies on the prosecution to overcome such presumption of innocence by presenting the quantum of evidence required. In so doing, the prosecution must rest on the strength of its own evidence and must not rely on the weakness of the defense. And if the prosecution fails to meet its burden of proof, the defense may logically not even present evidence on its own behalf. In such cases the presumption prevails and the accused should necessarily be acquitted (People v. Angus, G.R. No. 178778, August 3,2010).
5.	The constitutional presumption of innocence can be accorded to the accused only in the absence of evidence to prove his guilt beyond reasonable doubt. That constitutional presumption cannot be upheld in the face of the overwhelming and incontrovertible evidence for the prosecution irresistibly pointing to the conclusive culpability of the accused (People v. Cabacaba, G.R. No. 171310, July 9,2008).
6.	In prosecution of cases involving illegal possession of prohibited drugs, the prosecution must establish with moral certainty the elemental act of possession of a prohibited
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substance coupled with the fact that such possession is not authorized by law. Essential, however, in a drug-related case is that the identity of the dangerous drug be established beyond reasonable doubt. Since the dangerous drug constitutes the corpus delicti of the offense and the fact of its existence is vital to a judgment of conviction, it behooves upon the prosecution to establish and prove with certainty that the dangerous drug presented in court as evidence against the accused is the same item recovered from his possession (Julius Cacao y Prieto v. People of the Philippines, G.R. No. 180870, January 22,2010).
7.	Does the presumption of innocence end upon conviction by the trial court even if the conviction is appealed?
This was answered by the Court in the negative in one case. Here, the RTC of Quezon City rendered a decision convicting a judge, the respondent in this case, for two counts of child abuse or violations of Republic Act (R.A.) No. 7610. The convictions were however, appealed to the CA.
A Senior State Prosecutor of the DO J wrote a letter to the then Chief Justice inquiring whether it is possible for the Supreme Court, in the public interest, to motu proprio order the immediate suspension of the judge in view of the aforementioned RTC decision. The letter argued that "Although the conviction is not yet final, the presumption of innocence x x x enjoyed during the pendency of the trial has already been overcome by its result. The presumption today is that she is guilty and must clear her name of the charges."
The matter was referred by the Court for comment and recommendation to the Office of the Court Administrator (OCA), before which an administrative complaint against the same judge was pending.
The OCA recommended that the administrative case be given due course and that the respondent judge be indefinitely suspended pending the outcome of the case. The Second Division of the Supreme Court through a Resolution, approved the recommendations, thus, suspending the respondent judge from performing judicial functions while awaiting the final
resolution of the criminal convictions appealed from or until further orders from the Court.
The respondent judge filed an Urgent Motion for Reconsideration of the aforementioned Resolution. The motion claimed that the suspension order was issued without affording respondent judge the opportunity to be heard and that the suspension is essentially unjust because the two criminal cases are still on appeal before the CA and have, therefore, not yet attained finality. As such, respondent still enjoys the constitutional presumption of innocence and the suspension clashes with this presumption and is tantamount to a prejudgment of her guilt.
The Court ruled that it cannot fully agree with the recommendations of the OCA. The fact of respondent's conviction by the RTC does not necessarily warrant the suspension. Since the convictions are currently on appeal before the CA, the same have not yet attained finality. As such, the respondent still enjoys the constitutional presumption of innocence. It must be remembered, explained the Court, that the existence of a presumption indicating the guilt of the accused does not in itself destroy the constitutional presumption of innocence unless the inculpating presumption, together with all the evidence, or the lack of any evidence or explanation, proves the accused's guilt beyond a reasonable doubt. Until the accused's guilt is shown in this manner, the presumption of innocence continues and until a promulgation of final conviction is made, this constitutional mandate prevails (Re: Conviction of Judge AAA, AM. No. 06-9-545-RTC, January 31, 2008).
Prosecution must rest on its own merits
1.	In establishing the guilt of the accused, jurisprudence requires that the prosecution must rest on its own merits and must not rely on the weakness of the defense. In fact, if the prosecution fails to meet the required quantum of evidence, the defense may logically not even present evidence on its own behalf. In which case, the presumption of innocence shall prevail and hence, the accused shall be acquitted. However,
	CHAPTER VII	355
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once the presumption of innocence is overcome, the defense bears the burden of evidence to show reasonable doubt as to the guilt of the accused (Mupas v. People, G.R. No. 172834, February 6,2008).
2.	For example, in reviewing rape cases, the Supreme Court has constantly been guided by certain principles among which is that the evidence for the prosecution must stand or fall on its own merits and cannot draw strength from the weakness of the evidence for the defense (People v. Lagarde, G.R. No. 182549, January 20, 2009; People v. An, G.R. No. 169870, August 4, 2009).
Effect of failure to identify the perpetrator
What is the effect of the failure to identify the accused as perpetrator of the offense charged?
In one case of robbery with homicide, the accused- appellants argued that in criminal prosecutions, the State has the burden of proving the guilt of the accused beyond reasonable doubt. It has to prove the identity of the accused as the malefactor, as well as the fact of the commission of the crime for which he is allegedly responsible. They argued that it can be gleaned from the records of the case that the prosecution relied mainly on the testimony of the alleged eyewitness who did not even point to them as the malefactors and she only did so upon the instructions given her in a police camp. They pointed out that they were invited allegedly for violation of the anti-drugs law and were appalled to learn that they were charged with a different crime and the alleged witness was coached to identify them. Evidently, they stressed, their guilt has not been proved with the required quantum of evidence. They asserted that where the people's evidence fails to meet the quantum required to overcome the constitutional presumption of innocence, the accused is entitled to acquittal regardless of the weakness of his defense of denial and uncorroborated alibi, for it is better to acquit a guilty man than to unjustly keep in prison one whose guilt has not been proven beyond the required quantum of evidence.


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On the other hand, the prosecution, through the Office of the Solicitor General, argued that findings of fact of the trial court are generally upheld on appeal and the accused- appellants are assailing the correctness of the findings of fact of the trial court by impugning the credibility of the prosecution witness. The prosecution claimed that contrary to the accused-appellants' claim that the police officers taught the witness to point to them as the perpetrators, her testimony is straightforward and direct.
After review, The Court found that the accused-appellants should be acquitted. Declared the Court:
"It is settled that when the issue is the evaluation of the testimony of a witness or his credibility, this Court accords the highest respect and even finality to the findings of the trial court, absent any showing that it committed palpable mistake, misappreciation of facts or grave abuse of discretion. It is the trial court which has the unique advantage of observing first-hand the facial expressions, gestures and the tone of voice of a witness while testifying.
"The well-entrenched rule is that findings of the trial court affirmed by the appellate court are accorded high respect, if not conclusive effect, by this Court, absent clear and convincing evidence that the tribunals ignored, misconstrued or misapplied facts and circumstances of substances such that, if considered, the same will warrant the modification or reversal of the outcome of the case.
"Factual findings of trial courts, when substantiated by the evidence on record, command great weight and respect on appeal, save only when certain material facts and circumstances were overlooked and which, if duly considered, may vary the outcome of the case.
"In this case, the material fact and circumstance that the lone alleged eyewitness, x x x was not able to identify the accused-appellants as the perpetrators of the crime, varies the outcome of this case.
"One, they were not arrested for the crime of robbery with homicide but were arrested during a buy-bust operation.
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"Apparently, the accused-appellants were arrested without a warrant during a buy-bust operation xxx transferred to Camp Karingal under dubious circumstances, and made to stand in a police line-up and identified bv an eyewitness who failed to identify them three times. These circumstances were ignored by the trial court who gave too much credence on the positive identification of the accused-appellants by the same eyewitness during direct examination.
"Trial courts are mandated not only to look at the direct examination of witnesses but to the totality of evidence before them. In every case, the court should review, assess and weigh the totality of the evidence presented by the parties. It should not confine itself to oral testimony during the trial " (People v. Olivo, G.R. No. 177768, July 27,2009; Underscoring supplied for emphasis).
Failure to comply with post-seizure procedures set by law
What is the effect of the failure of the arresting officers to comply with post-seizure procedures set by law?
This has been answered in various decisions of the Court. For instance, In People v. Frondozo, G.R. No. 177164, June 30, 2009, the accused-appellant assailed his conviction by the Court of Appeals for violation of Sec. 5 of R.A. No. 9165 (Comprehensive Dangerous Drugs Act of 2002) which among other illegal acts, penalizes the sale and trading of dangerous drugs. The appeal contended that the evidence showed that the arresting officers have not complied with the requirements for establishing the chain of custody under Sec. 21 of the law. To establish the identity of the shabu seized, the procedures laid down in R.A. No. 9165 should be complied with. It was pointed out that Sec. 21 of the Implementing Rules and Regulations of R.A. No. 9165 clearly outlines the post-seizure procedure in taking custody of seized drugs. It states:
(1) The apprehending team having initial custody and control of the drugs shall, immediately after seizure and confiscation, physically inventory and photograph the same in the presence of the accused or the person/s from whom such items were confiscated and/or seized, or
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his/her representative or counsel, a representative from the media and the Department of Justice (DOJ), and any elected public official who shall be required to sign the copies of the inventory and be given a copy thereof (Underscoring supplied).
The Court held that what is material in the prosecution for illegal sale of dangerous drugs is proof that the transaction or sale actually took place, coupled with the presentation in court of evidence of corpus delicti. Prosecutions for illegal sale of prohibited drugs necessitate that the elemental act of possession of prohibited substance be established with moral certainty, together with the fact that the same is not authorized by law. The dangerous drug itself constitutes the very corpus delicti of the offense and the fact of its existence is vital to a judgment of conviction. Therefore, it is essential that the identity of the prohibited drug be shown beyond doubt by complying with the law. In this case, declared the Court, the arresting officers failed to strictly comply with the procedures for the custody and disposition of confiscated dangerous drugs as prescribed by R.A. No. 9165. The arresting officers did not mark the shabu immediately after they arrested the accused. Further, while there was testimony regarding the marking of the shabu after it was turned over to the police investigator, no evidence was presented to prove that the marking thereof was done in the presence of the accused. Also, fatal in the prosecution's case is the failure of the arresting officers to take a photograph and make an inventory of the confiscated materials in the presence of the accused or there was no mention that any representative from the media, DOJ or any elected public official had been present during the inventory or that any of these persons had been required to sign the copies of the inventory. Clearly, none of the statutory safeguards mandated by R.A. No. 9165 was observed. Hence, the failure of the buy-bust team to comply with the procedure in the custody of the seized drugs raises doubt as to its origins.
Nevertheless, while the seized drugs may be admitted in evidence, it does not necessarily follow that the same should be given evidentiary weight if the procedures provided by
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R.A. No. 9165 were not complied with. The admissibility of the seized dangerous drugs in evidence should not be equated with its probative value in proving the corpus delicti. The admissibility of evidence depends on its relevance and competence while the weight of evidence pertains to evidence already admitted and its tendency to convince and persuade.
Finally, ruled the Court, the presumption of regularity in the performance of official duty relied upon by the lower courts cannot by itself overcome the presumption of innocence nor constitute proof of guilt beyond reasonable doubt. As a rule, the testimony of police officers who apprehended the accused is accorded full faith and credit because of the presumption that they have performed their duties regularly. However, when the performance of their duties is tainted with irregularities, such presumption is effectively destroyed (See also Mallilin v. People, G.R. No. 172953, April 30,2008; People v. Obmiranis, G.R. No. 181492, December 16, 2008; People v. Garcia, G.R. No. 173480, February 25, 2009; People v. Cervantes, G.R. No. 181494; Catuiran v. People, 175647, May 8, 2009; People v. Barba; G.R. No. 182420, July 23,2009; People v. Gatlabayan, G.R. No. 186467, July 13,2011).
The equipoise rule
1. The presumption of innocence has given rise to a jurisprudential rule referred to as the'equipoise rule' which is well-settled in this jurisdiction and which is a consequence of such presumption. The application of the rule is triggered by a situation where the court is faced with conflicting versions of the prosecution and the defense and where the evidence, facts and circumstances are capable of two or more explanations, one of which is consistent with the innocence of the accused and the other consistent with his guilt. This situation cannot fulfill the test of moral certainty and is not sufficient to support a conviction. The court then will have to resort to the equipoise rule.
"The equipoise rule provides that where the evidence in a criminal case is evenly balanced, the constitutional presumption of innocence tilts the scales in favor of the

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accused" (People v. Erguiza, G.R. No. 171348, November 26, 2008). If the inculpatory testimony is capable of two or more explanations, one consistent with the innocence of the accused persons and the other consistent with their guilt, then the evidence does not fulfill the test of moral certainty and is not sufficient to support a conviction (People v. Navarro, G.R.
No. 173790, October 11, 2007; People v. Cervantes, G.R. No. 181494, March 17,2009).
2. There is, therefore, no equipoise if the evidence is not evenly balanced. Said rule is not applicable where the evidence presented is not equally weighty. The equipoise rule cannot be invoked where the evidence of the prosecution is overwhelming (Malana v. People, G.R. No. 173612, March 26, 2008).
Right to be informed of the nature and cause of accusation
1.	In order to inform the accused of the nature and cause of accusation against him, it is necessary for the com- plaint or information to contain those matters required by the statute or by the Rules of Court, to wit:
(a)	To state the name and surname of the accused or any appellation or nickname by which he has been or is known and if his name cannot be ascertained, to describe him under a fictitious name (Sec. 7, Rule 110, Rules of Court).
(b)	To state the name and surname of the offended party or any appellation or nickname by which such per- son has been or is known and if there is no other way of identifying him, to describe him under a fictitious name (Sec. 12, Rule 110, Rules of Court); if the offended party is a juridical person, it is sufficient to state its name, or any name or designation by which it is known or by which it may be identified (Sec. 12[c], Rule 110, Rules of Court).
(c)	To state with sufficient clarity and in an ordi- nary and concise language, the acts or omissions consti- tuting the offense to enable the accused to know the of- fense he is being charged with (Sec. 9, Rule 110, Rules of
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Court); to state the designation of the offense given by statute unless there is no such designation in which case it is sufficient to make reference to the section or subsection of the statute punishing the offense (Sec. 8, Rule 110, Rules of Court).
(d)	To state also in ordinary and concise language, the qualifying and aggravating circumstances attending the acts imputed to the accused (Sees. 8, 9, Rule 110, Rules of Court);
(e)	To sufficiently allege that the crime was committed or its essential ingredients occurred at some place within the jurisdiction of the court (Sec. 10, Rule 110, Rules of Court);
(f)	To allege the date of the commission of the acts or omissions constituting the offense, which date may be one as near as possible to the actual date of the commission of the offense, except when the precise date is a material ingredient of the offense (Sec. 11, Rule 110, Rules of Court);
(g)	In offenses against property, if the name of the offended party is unknown, the property must be described with such particularity to properly identify the offense charged (Sec. 12[a], Rule 110, Rules of Court).
2.	It is a basic constitutional right of the accused persons to be informed of the nature and cause of accusation against them. It would be a denial of accused-appellant's basic right to due process if he is charged with simple rape and consequently convicted with certain qualifying circumstances which were not alleged in the information (People v. Lagarde, G.R. No. 182549, January 20,2009).
3.	In Lagarde, the accused-appellant was charged with rape in an information which reads:
"That on or about the 27th day of December, 2001, in the municipality of San Miguel, Province of Leyte, Philippines and within the jurisdiction of this
Honorable court, the above-named accused, with deliberate intent with
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lewd designs and by use of force and intimidation, did then and there willfully, unlawfully and feloniously have carnal knowledge with [AAA], 11 years old, against her will to her damage and prejudice.
CONTRARY TO LAW."
The RTC found AAA's testimony credible, noting that at her age, it is inconceivable for her to concoct a tale of having been raped. Thus, the trial court convicted accused-appellant of rape aggravated by minority of the victim, use of bladed weapon and force, and uninhabited place in view of the location of the offense.
The appellate court upheld the trial court's findings of fact and judgment of conviction. With regard to the penalty, however, the CA ruled that the trial court erred when it imposed the death sentence on the basis of the following aggravating circumstances: minority, use of bladed weapon, and uninhabited place. Aside from the abolition of the death penalty, the CA held that:
"It is basic in criminal procedure that the purpose of the information is to inform the accused of the nature and cause of the accusation against him or the charge against him so as to enable him to prepare a suitable defense. It would be a denial of the right of the accused to be informed of the charges against him, and consequently, a denial of due process, if he is charged with simple rape and convicted of its qualified form punishable by death although the attendant circumstances qualifying the offense and resulting in capital punishment were not set forth in the indictment on which he was arraigned."
Accused-appellant also questioned the death penalty imposed on him, arguing that the aggravating circumstances of minority, use of a bladed weapon, and uninhabited place were not specifically alleged in the information.
The Office of the Solicitor General, on the other hand, agreed with the judgment of conviction but not with the death penalty for the same reasons submitted by accused-appellant.
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The Court sustained the Court of Appeals. Said the Court:
"We agree with the appellate court that the death penalty is not warranted by the alleged aggravating cir- cumstances, i.e., victim's minority, use of bladed weapon, and uninhabited place. First, the death penalty was abol- ished under Republic Act No. 9346. Second, the use of a bladed weapon and uninhibited place cannot be appreci- ated here because these were not specifically alleged in the information. Section 8, Rule 110 of the Revised Rules of Criminal Procedure provides:
Sec. 8. Designation of the offense. — The com- plaint or information shall state the designation of the offense given by the statute, aver the acts or omissions constituting the offense, and specify its qualifying and aggravating circumstances. If there is no designation of the offense, reference shall be made to the section or subsection of the statute pun- ishing it.
It is a basic constitutional right of the accused per- sons to be informed of the nature and cause of accusation against them. It would be a denial of accused-appellant's basic right to due process if he is charged with simple rape and consequently convicted with certain qualifying circumstances which were not alleged in the information.
The appellate court correctly ruled that the use of a bladed weapon and uninhabited place are not circum- stances that would call for the imposition of the death penalty.
The victim's minority does not also qualify the of- fense to merit the death penalty. To warrant a death sen- tence, the victim must be under seven (7) years of age. The applicable provisions, therefore, are the following:
Art. 266-A. Rape; when and how committed. —
X X X
Art. 266-B Penalties x x x
The death penalty shall be imposed x x x
5) When the victim is a child below seven (7)
rr years old."
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4.	May the accused be convicted of violation of Batas Pambansa Big. 22 if the check described in the information is not the check allegedly issued and admitted in evidence?
In Dico v. Court of Appeals, 452 SCRA 441, the accused was charged with three (3) counts of violation of Batas Pambansa Big. 22 (B.P. Big. 22) involving among other checks, FEBTC Check No. 364903 for P100,000 as described in the information. During his appeal to the Supreme Court following his conviction by the lower courts, the Court discovered a discrepancy between the checked marked as exhibit and the check described in the information.
The information filed by the public prosecutor described the check as FEBTC Check No. 364903 dated 12 May 1993 in the amount of P100,000 payable to Equitable Banking Corporation. However, the parties, including the lower courts, overlooked the fact that the check being identified in court was different from that described in the information. The prosecution marked as its Exhibit "B" FEBTC Check No. 369403 (not FEBTC Check No. 364903), dated 12 May 1993 in the amount of P100,000 payable to Equitable Banking Corporation.
The issue as to the identity of the check, though not raised as an error, should according to the Court, be considered in favor of the accused. The variance in the identity of the check nullifies the conviction of the accused. The identity of the check enters into the first element of the offense under Section 1 of B.P. Big. 22 — that a person draws or issues a check on account or for value. There being a discrepancy in the identity of the checks described in the information and that presented in court, petitioner's constitutional right to be informed of the nature of the offense charged will be violated if his conviction is upheld.
5.	Where the date of the check and the amount thereof as stated in the information vary with the exhibits submitted by the prosecution, the inconsistencies violate the constitutional right of the accused to be informed. Without a sufficient identification of the dishonored check in the information, the
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conviction of the accused should be set aside (Olivarez v. Court of Appeals, 465 SCRA 465).
6.	A violation of the right under discussion is exemplified by Gutierrez v. Hernandez, 524 SCRA 1, June 8, 2007, where the judge set a criminal case for arraignment and hearing knowing fully well that no preliminary investigation had been conducted and no information had yet been filed before his court. He justified his actions as "pursuant to his judicial functions as presiding judge..." Calling the act as "a clear display of x x x," the Court declared said act as having clearly violated the right of the accused to due process, to be informed of the accusation against him, and to have a copy of the Information before arraignment (Gutierrez v. Hernandez, A.M. No. MTJ-06-1628, June 8, 2007).
7.	In yet another case, the petitioners were charged with violation of Republic Act (R.A.) No. 6539 (Anti-Carnapping Act of 1992) before the RTC of Malolos City, Bulacan. The information did not allege that the alleged felonious act of the petitioners was committed by means of violence against or intimidation of any person, or force upon things. In other words, the information was only for simple carnapping the penalty for which under Sec. 14 of the law shall not exceed seventeen years and four months.
After trial, petitioners were sentenced to suffer the penalty of seventeen (17) years and four (4) months to thirty (30) years imprisonment, a penalty in excess of that provided for simple carnapping. The penalty meted is actually equivalent to the imprisonment imposable when the carnapping is committed by means of violence against or intimidation of any person, or force upon things;
The petitioners appealed to the CA which affirmed the RTC decision with modification, as follows: xxx "MODIFICATION that the accused-appellants shall suffer the indeterminate prison term of SEVENTEEN YEARS AND FOUR MONTHS, as minimum, to THIRTY YEARS, as maximum."
The petitioners moved to reconsider this decision, but the CA denied their motion. In the Supreme Court, the petitioners
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raised as error, among others, the imposition upon them of the penalty of seventeen (17) years and four (4) months to thirty (30) years. The petitioners also contended that assuming they were guilty of the crime charged, the penalty imposed by the lower courts was erroneous. They argue that the information failed to allege any circumstance that would warrant the imposition of a higher penalty.
The Court agreed with the petitioners with respect to the erroneous penalty imposed. The Court noted that the information charging the petitioners with violation of R.A. No. 6539, as amended, did not allege that the carnapping was committed by means of violence against, or intimidation of, any person, or force upon things. While these circumstances were proven at the trial, they cannot be appreciated because they were not alleged in the information. Thus, the lower courts erred when they took these circumstances into account in imposing the penalty which they pegged at seventeen (17) years and four (4) months to thirty (30) years imprisonment. In the absence of these circumstances, the charge against the petitioners is confined to simple carnapping whose imposable penalty should have been imprisonment for not less than fourteen (14) years and eight (8) months, and not more than seventeen (17) years and four (4) months (Andres v. People, G.R. No. 185860, June 5,2009).
8.	In implementing the right of the accused to be informed of the nature and cause of accusation against him, the Rules of Court specifically require that the acts or omissions complained of as constituting the offense, including the qualifying and aggravating circumstances must be stated in ordinary and concise language, not necessarily the language used in the statute, but in terms sufficient to enable a person of common understanding to know what offense is being charged and the attendant qualifying and aggravating circumstances present, so that the accused can properly defend himself and the court can pronounce judgment. To broaden the scope of the right, the Rules authorize the quashal, upon motion of the accused, of an information that fails to allege the acts constituting the offense (Go v. Bangko Sentral ng Pilipinas, G.R. No.
178429, October 23,2009).
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(Rule 115)
9.	Does conviction for the sale and possession of methamphetamine hydrochloride (shabu) violate the accused's constitutional right to be informed of the nature and causes of the accusations against him if the fact that was established and proven during trial was the sale and possession of ephedrine, a regulated drug?
The Supreme Court answered in the negative, ruling that the chemical formula of ephedrine is CIO H15 NO, whereas that of methamphetamine is CIO H15 N. The only difference between ephedrine and methamphetamine is the presence of a single atom of oxygen in the former. The removal of the oxygen in ephedrine will produce methamphetamine. With ephedrine containing fifty percent (50%) of methamphetamine hydrochloride if the oxygen content in the former is removed, the nearly 680 grams of ephedrine seized from the appellant contains about 340 grams of methamphetamine hydrochloride. The offenses designated in the Informations are for violations of Sections 15 and 16 of R.A. 6425, which define and penalize the crimes of illegal sale and possession of regulated drugs. The allegations in the Informations for the unauthorized sale and possession of "shabu" or methamphetamine hydrochloride are immediately followed by the qualifying phrase "which is a regulated drug." Thus, it is clear that the designations and allegations in the Informations are for the crimes of illegal sale and illegal possession of regulated drugs. Ephedrine has been classified as a regulated drug by the Dangerous Drugs Board in Board Resolution No. 2, Series of 1988. Sections 4 and 5, Rule 120 of the Rules of Court, can be applied by analogy in convicting the appellant of the offenses charged, which are included in the crimes proved. Under these provisions, an offense charged is necessarily included in the offense proved when the essential ingredients of the former constitute or form part of those constituting the latter. At any rate, a minor variance between the information and the evidence does not alter the nature of the offense, nor does it determine or qualify the crime or penalty, so that even if a discrepancy exists, this cannot be pleaded as a ground for acquittal. In other words, his right to be informed of the charges against him has not

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been violated because where an accused is charged with a specific crime, he is duly informed not only of such specific crime, but also of lesser crimes or offenses included therein. (People of the Philippines v. Joselito Noque y Gomez, G.R. No. 175319, January 15,2010).
10. When the counsel of the accused actively participated in the proceedings this indicates that the accused was fully aware of the charges against him, otherwise, his counsel would have objected and informed the court of the blunder (People v. Pangilinan, 518 SCRA 358). But the failure to file a motion to quash the information cannot amount to a waiver of the constitutional right to be informed (Burgos v. Sandiganbayan, 413 SCRA 385).
Right to counsel of the accused and of persons arrested, detained or under custodial investigation; Republic Act No. 7438 (Bar 1990; 1991; 1998; 2002)
1.	The Bill of Rights guarantees the right of counsel to an accused (Sec. 14[2]), Article III, 1987 Constitution of the Philippines). Under Sec. 1(c) of Rule 115, the accused has the right to "x x x defend in person and by counsel at every stage of the proceedings, from arraignment to promulgation of judgment" (Italics supplied).
"In criminal cases, the right of an accused person to be assisted by a member of the bar is immutable. Otherwise, there would be a grave denial of due process. Thus, even if the judgment had become final and executory, it may still be recalled, and the accused afforded the opportunity to be heard by himself and counsel" (Hilario v. People, G.R. No. 161070, April 14,2008).
2.	One need not however, be an accused to avail of the right to counsel and the right to counsel does not commence only during the trial. Every person under custody of the law enjoys the right.
Republic Act No. 7438 (Sec. 2) provides that "Any person arrested, detained or under custodial investigation shall at all times be assisted by counsel."
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(Rule 115)
Meaning of custodial investigation; extended meaning
1.	Custodial investigation is the stage "where the police investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a particular suspect taken into custody by the police who carry out a process of interrogation that lends itself to elicit incriminating statements" (People v. Sunga, 399 SCRA 624). (Bar 2006)
Custodial investigation involves any questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. It is only after the investigation ceases to be a general inquiry into an unsolved crime and begins to focus on a particular suspect, the suspect is taken into custody, and the police carries out a process of interrogations that lend itself to eliciting incriminating statements, that the rule begins to operate (Aquino v. Paiste, G.R. No. 147782, June 25,2008).
2.	Republic Act No. (R.A.) 7438 has however, redefined the concept of 'custodial investigation' and has extended this constitutional guarantee to situations in which an individual has not been formally arrested but has merely been "invited" for questioning. Specifically, Sec. 2 of R.A. 7438 provides that "custodial investigation shall include the practice of issuing an invitation to a person who is investigated in connection with an offense he is suspected to have committed, without prejudice to the liability of the 'inviting' officer for any violation of law (Sec. 2[ff, R.A. 7438).
Rights of persons under custodial investigation; custodial investigation report
1. Republic Act No. 7438 provides for the following requisites for a valid custodial investigation report:
(a)	The report shall be reduced to writing by the investigating officer;
(b)	If the person arrested or detained does not know how to read and write, it shall be read and adequately explained to him by his counsel or by the assisting counsel in the language or dialect known to such arrested
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or detained person. This is to be done before the report is signed. If this procedure is not done, the investigation report shall be null and void and of no effect whatsoever (Sec. 2[c], RA. 7438).
2.	The importance of the right to counsel is so vital that under existing law, "In the absence of any lawyer, no custodial investigation shall be conducted and the suspected person can only be detained by the investigating officer in accordance with the provisions of Art. 125 of the Revised Penal Code" (Sec. 3[c]), RA. 7438).
Republic Act No. 7438 also clearly mandates that a counsel "shall at all times be allowed to confer privately with the person arrested, detained or under custodial investigation x x x" (Sec. 2[b], RA. 7438).
The purpose of providing counsel to a person under custodial investigation is to curb the uncivilized practice of extracting a confession (People v. Duefias, Jr., 426 SCRA 666).
3.	Even a person under investigation for an offense has the right to have a "competent and independent counsel preferably of his own choice." Included in this right is the right to be informed of his right to counsel (Sec. 12[1], Art. Ill, 1987 Constitution of the Philippines; Sec. 2[b], RA. 7438).
The purpose of providing counsel to a person under custodial investigation is to curb the police-state practice of extracting a confession that leads suspects to make self- incriminating statements. In order to comply with the constitutional mandate, there should likewise be meaningful communication to and understanding of his rights by the suspect, as opposed to a routine, peremptory and meaningless recital thereof (People v. Rapeza, 520 SCRA 596, April 4, 2007).
The right of a person under interrogation "to be informed" implies a correlative obligation on the part of the police investigator to explain and contemplates an effective communication that results in an understanding of what is conveyed (People v. Guillermo, 420 SCRA 326).
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RIGHTS OF THE ACCUSED
(Rule 115)
Failure to inform the suspect of her right to counsel during custodial investigation attains significance only if the person under investigation makes a confession in writing without aid of counsel and which is then sought to be admitted against the accused during the trial. In such case, the tainted confession obtained in violation is inadmissible in evidence against the accused (Eugenio v. People 549 SCRA 433).
4.	The suspect must also be advised that he has the option to reject the counsel provided for him by the police authorities, which fact must similarly appear in the extrajudicial confession. Where the participation of a lawyer in the proceedings was confined to the notarization of the suspect's confession, the same is not considered, in legal contemplation, the kind of legal assistance that should be accorded to the suspect (People v. Rapeza, 520 SCRA 596).
5.	Aside from the rule that the counsel must be competent and independent and preferably the choice of the person arrested, detained or under custodial investigation, the assisting counsel provided by the investigating officer is "any lawyer, except those directly affected by the case, those charged with conducting preliminary investigation or those charged with the prosecution of crimes" (Sec. 3, RA. 7438).
6.	Jurisprudence supports the view that a mere inquiry on the commission of a crime by law enforcement authorities does not automatically trigger the application of the right to counsel.
"x x x It is only after the investigation ceased to be a general inquiry into an unsolved crime and begins to focus on a particular suspect, the suspect is taken into custody, and the police carries out a process of interrogations that lend itself to eliciting incriminating statements, that the Miranda Rule begins to operate, though R.A. No. 7438 has extended this constitutional guarantee to situations in which an individual has not been formally arrested but has merely been "invited" for questioning" (Aquino v. Paiste, 555 SCRA 255, June 25, 2008). The moment a police officer tries to elicit admissions or confessions or even plain information from a suspect, the
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latter should, at this juncture, be assisted by counsel, unless he waives this right in writing and in the presence of counsel (People v. Rapeza, 520 SCRA 596).
7.	A police line-up is not part of the custodial inquest since the accused at that stage is not yet being investigated. In the line-up, the right to counsel does not yet attach (People v. Tolentino, 423 SCRA 448).
8.	It has also been held that a barangay chairman is not deemed a law enforcement officer for purposes of applying Section 12(1) and (3) of Art. Ill of the Philippine Constitution. Thus, a suspect's uncounselled statement before the barangay chairman is admissible (People v. Ulit, 423 SCRA 374).
9.	The right to counsel applies in certain pre-trial proceedings that can be deemed "critical stages" in the criminal process like in a preliminary investigation. This investigation can be no different from the in-custody interrogations by the police, for a suspect who takes part in a preliminary investigation will be subjected to no less than the State's processes, oftentimes intimidating and relentless, of pursuing those who might be liable for criminal prosecution (People v. Sunga, 399 SCRA 624).
Right to choose a counsel is not plenary; right may be waived
1.	There is no denial of the right to counsel where a counsel de oficio is appointed during the absence of the accused's counsel de parte, or in this case the regular counsel de oficio, pursuant to the court's desire to finish the case as early as practicable under the continuous trial system. The choice of counsel by the accused in a criminal prosecution is not a plenary one. If the chosen counsel deliberately makes himself scarce, the court is not precluded from appointing a de oficio counsel, which it considers competent and independent, to enable the trial to proceed until the counsel of choice enters his appearance. Otherwise, the pace of a criminal prosecution will be entirely dictated by the accused, to the detriment of the eventual resolution of the case (People v. Siongco, G.R. No. 186472, July 5,2010).
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RIGHTS OF THE ACCUSED
(Rule 115)
2.	The right to counsel may be waived but to insure that the waiver is voluntary and intelligent, the waiver must be in writing and in the presence of the counsel of the accused (People v. Del Castillo, 439 SCRA 601). The right to a competent and independent counsel is one of the rights of the accused guaranteed under Sec. 12(1) of Art. Ill of the Philippine Constitution. As the proviso declares: " xx x These rights cannot be waived except in writing and in the presence of counsel.3*
Competent and independent counsel
1. The meaning of "competent counsel" and its standards were explained in People v. Deniega, 251 SCRA 626 as follows:
"The lawyer called to be present during such investigations should be as far as reasonably possible, the choice of the individual undergoing questioning. If the lawyer were one furnished in the accused's behalf, it is important that he should be competent and independent, i.e., that he is willing to fully safeguard the constitutional rights of the accused, as distinguished from one who would be merely giving a routine, peremptory and meaningless recital of the individual's constitutional rights. In People v. Basay, th[e] Court stressed that an accused's right to be informed of the right to remain silent and to counsel "contemplates the transmission of meaningful information rather than just the ceremonial and perfunctory recitation of an abstract constitutional principle."
Ideally therefore, a lawyer engaged for an individual facing custodial investigation (if the latter could not afford one) should be engaged by the accused (himself), or by the latter's relative or person authorized by him to engage an attorney or by the court, upon proper petition of the accused or person authorized by the accused to file such petition." Lawyers engaged by the police, whatever testimonials are given as proof of their probity and supposed independence, are generally suspect, as in many
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areas, the relationship between lawyers and law enforcement authorities can be symbiotic.
x x x The competent or independent lawyer so engaged should be present from the beginning to end, i.e., at all stages of the interview, counseling or advising caution reasonably at every turn of the investigation, and stopping the interrogation once in a while either to give advice to the accused that he may either continue, choose to remain silent or terminate the interview CPeople v. Rapeza, G.R. No. 169431, April 3,2007).
2. Lumanog, et al. v. People, G.R. No. 182555, September 7, 2010 states: "The modifier competent and independent in the 1987 Constitution is not an empty rhetoric. It stresses the need to accord the accused, under the uniquely stressful conditions of a custodial investigation, an informed judgment on the choices explained to him by a diligent and capable lawyer (People v. Suela, 373 SCRA 163; People v. Deniega, 251 SCRA 626, People v. Santos, 283 SCRA 443). An effective and vigilant counsel necessarily and logically requires that the lawyer be present and able to advise and assist his client from the time the confessant answers the first question asked by the investigating officer until the signing of the extrajudicial confession. Moreover, the lawyer should ascertain that the confession is made voluntarily and that the person under investigation fully understands the nature and the consequence of his extrajudicial confession in relation to his constitutional rights. A contrary rule would undoubtedly be antagonistic to the constitutional rights to remain silent, to counsel and to be presumed innocent" (People v. Labatan, 320 SCRA 140).
Citing previous decisions, Lumanog further declares: "The right to counsel has been written into our Constitution in order to prevent the use of duress and other undue influence in extracting confessions from a suspect in a crime. The lawyer's role cannot be reduced to being that of a mere witness to the signing of a pre-prepared confession, even if it indicated compliance with the constitutional rights of the accused. The accused is entitled to effective, vigilant and independent
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RIGHTS OF THE ACCUSED
(Rule 115)
counsel. Where the prosecution failed to discharge the State's burden of proving with clear and convincing evidence that the accused had enjoyed effective and vigilant counsel before he extrajudicially admitted his guilt, the extrajudicial confession cannot be given any probative value (People v. Peralta, 426 SCRA 472, citing People v. Binamird, 277 SCRA 232; People v. Ordono, 334 SCRA 673; People v. Rodriguez, 341 SCRA 645, 653; People v. Rayos, 351 SCRA 336, 344; and People v. Patungan, 354 SCRA 413; Lumanog, et al. v. People, G.R. No. 182555, September 7,2010).
3.	An extrajudicial confession executed by a suspect assisted by a counsel who failed to meet the exacting standards of an independent and competent counsel is deemed an un- counseled confession and, therefore, inadmissible in evidence (People v. Tomaquin, 435 SCRA 23).
4.	In the case of People v. Bermas, 306 SCRA 135 three PAO lawyers were assigned to an accused who was charged with raping his own daughter. The records show that the first lawyer without sufficient reason did not cross-examine the private complainant and thus, effectively waived the right to cross-examination. He subsequently asked to be relieved of his duties as counsel. The second lawyer who was appointed by the court, missed several dates and could no longer be located. A third reluctant lawyer was appointed by the court and later ceased to appear for the accused. This Court held that:
"The right to counsel must be more than just the presence of a lawyer in the courtroom or the mere propounding of standard questions and objections. The right to counsel means that the accused is amply accorded legal assistance extended by a counsel who commits himself to the cause for the defense and acts accordingly. The right assumes an active involvement by the lawyer in the proceedings, particularly at the trial of the case, his bearing constantly in mind of the basic rights of the accused, his being well-versed on the case and his knowing
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the fundamental procedures, essential laws and existing jurisprudence. The right of an accused to counsel finds substance in the performance by the lawyer of his sworn duty of fidelity to his client. Tersely put, it means an efficient and truly decisive legal assistance and not a simple perfunctory representation" (People v. Nadera 324 SCRA 490).
5.	Where the participation of the lawyer in the proceedings was confined to the notarization of the suspect's confession, the same is not considered, in legal contemplation, the kind of legal assistance that should be accorded to the suspect (People v. Rapeza, 520 SCRA 596).
6.	The right to counsel involves more than the mere presence of a lawyer. It means an efficient and decisive legal assistance and not a simple perfunctory representation (People v. Sunga, 399 SCRA 624).
Right to counsel in administrative cases
1.	There is no law, jurisprudence or rule which mandates that an employee should be assisted by counsel in an administrative case. On the contrary, jurisprudence is in unison in saying that assistance of counsel is not indispensable in administrative proceedings (Perez v. People, G.R. No. 164763, February 12,2008).
2.	While investigations conducted by an administrative body may at times be akin to a criminal proceeding, the fact remains that under existing laws, a party in an administrative inquiry may or may not be assisted by counsel, irrespective of the nature of the charges and of respondent's capacity to represent himself, and no duty rests on such body to furnish the person being investigated with counsel. Thus, the right to counsel is not imperative in administrative investigations because such inquiries are conducted merely to determine whether there are facts that merit disciplinary measures against erring public officers and employees, with the purpose of maintaining the dignity of government service (Perez v. People,
G.R. No. 164763, February 12,2008; See also
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RIGHTS OF THE ACCUSED
(Rule 115)
Lastimoso v. Asayo, 517 SCRA 522 and Ampong v. Civil Service Commission, CSC-Regional Office No. 11,563 SCRA293).
Extrajudicial confessions; rights of persons under custodial investigation (Bar 2006)
1.	A confession is admissible in evidence if it is satisfactorily shown to have been obtained within the limits imposed by the 1987 Constitution (People v. Rapeza, 520 SCRA 596, April 3,2007).
2.	Section 12, Art. Ill thereof states in part, to wit:
"SEC. 12. (1) Any person under investigation for the commission of an offense shall have the right to be informed of his right to remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing and in the presence of counsel.
"(2) No torture, force, violence, threat, intimidation or any other means which vitiate the free will shall be used against him. Secret detention places, solitary, incommunicado, or other similar forms of detention are prohibited."
(3) Any confession or admission obtained in violation of this or Section 17 hereof shall be inadmissible in evidence against him."
"(4) The law shall provide for penal and civil sanctions for violation of this section as well as compensation for the rehabilitation of victims of tortures or similar practices, and their families."
3. The extrajudicial confession must also be tested for voluntariness, that is, if it was given freely by the confessant without any form of coercion or inducement (People v. Rapeza, 520 SCRA 596, April 3,2007).
The voluntariness of a confession may be inferred from its language such that if, upon its face, the confession exhibits no suspicious circumstances tending to cast doubt upon its integrity, it being replete with details — which could only
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be supplied by the accused — reflecting spontaneity and coherence, it may be considered voluntary. A confession is not voluntary if the alleged confession contains facts and details which appear to have been supplied by the investigators themselves (People v. Rapeza, 520 SCRA 596, April 4,2007).
4.	The practice of inducing suspects to sign receipts for property allegedly confiscated from their possession is unusual and violative of the constitutional right to remain silent as when the accused was made to acknowledge that the six (6) small plastic bags of dried marijuana leaves were confiscated from him by signing a receipt and to sign a receipt for the P20.00 bill as purchase price of the dried marijuana leaves he sold to a police officer. Obviously, in a situation like this, the accused was the victim of a clever ruse to make him sign these alleged receipts which in effect are extra-judicial confessions of the commission of the offense. Indeed it is unusual for appellant to be made to sign receipts for what were taken from him. It is the police officers who confiscated the same who should have signed such receipts. No doubt this is a violation of the constitutional right of the accused to remain silent whereby he was made to admit the commission of the offense without informing him of his right. Such a confession obtained in violation of the Constitution is inadmissible in evidence. The Inventory Receipt signed by appellant is thus not only inadmissible for being violative of appellant's custodial right to remain silent; it is also an indicium of the irregularity in the manner by which the raiding team conducted the search of appellant's residence (People v. Del Castillo, 439 SCRA 601; People vs. Casimiro, G.R. No. 146277, June 20, 2002). (Bar 2009)
5.	Republic Act No. 7438 (Sec. 2[d]) provides for the following requisites for the validity of an extrajudicial confession made by a person arrested, detained or under custodial investigation:
(a)	It shall be in writing and signed by the person arrested, detained or under custodial investigation;
(b)	It must be signed in the presence of his counsel or in the latter's absence, upon a valid waiver;
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RIGHTS OF THE ACCUSED
(Rule 115)
(c)	In the event of a valid waiver, it must be signed in the presence of any of the parents, elder brothers and sisters, his spouse, the municipal mayor, the municipal judge, district school supervisor, or priest or minister of the gospel as chosen by him.
If there is any waiver of the provisions of Art. 125 of the Revised Penal Code, the waiver must:
(a)	be in writing; and
(b)	signed by the person arrested, detained or under custodial investigation; and
(c)	such person must sign the waiver in the presence of his counsel.
If the above is not complied with, "the waiver shall be null and void and of no effect" (Sec. 2[e], RA. 7438).
Thus, even if the police officers claimed that upon arresting the accused, they informed him of his constitutional rights to remain silent, that any information he would give could be used against him, and that he had the right to a competent and independent counsel, preferably, of his own choice, and if he cannot afford the services of counsel he will be provided with one, any waiver of his rights could not have been valid since these rights can only be waived in writing and with the assistance of counsel. The constitutional requirement obviously had not been observed. Settled is the rule that the moment a police officer tries to elicit admissions or confessions or even plain information from a suspect, the latter should, at that juncture, be assisted by counsel, unless he waives this right in writing and in the presence of counsel. The purpose of providing counsel to a person under custodial investigation is to curb the police-state practice of extracting a confession that leads appellant to make self-incriminating statements (Lumanog, et al. v. People, G.R. No. 182555, September 7, 2010).
6.	Admissions under custodial investigation made without the assistance of counsel are barred as evidence. A suspect's confession, whether verbal or non-verbal, when tak
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en without the assistance of counsel without a valid waiver of such assistance regardless of the absence of such coercion, the fact that it had been voluntarily given, is inadmissible in evidence, even if such confession were gospel truth (People v. Ador, 432 SCRA 1).
7.	Summarizing jurisprudential and statutory pronouncements, the Court has consistently held that an extrajudicial confession, to be admissible, must conform to the following requisites: 1) the confession must be voluntary; 2) the confession must be made with the assistance of a competent and independent counsel, preferably of the confessant's choice; 3) the confession must be express; and 4) the confession must be in writing (People v. Bagnate, 428 SCRA 633; People v. Rapeza, G.R. No. 169431, April 3, 2007; People v. Tuniaco, G.R. No. 185710, January 19,2010).
8.	Assuming that all constitutional and statutory safeguards have been complied with, "An extrajudicial confession made by an accused, shall not be sufficient ground for conviction, unless corroborated by evidence of corpus delicti" (Sec. 3, Rule 133, Rules of Court).
9.	While the Supreme Court has consistently stricken out the extrajudicial confession extracted in violation of constitutionally enshrined rights and declared it inadmissible in evidence, the accused will not be entitled to an acquittal if his conviction was not based on the evidence obtained during such custodial investigation and if even without the extrajudicial confession of the accused, the testimonial and documentary evidence on record could establish his guilt beyond reasonable doubt (People v. Lumanog, G.R. No. 182555, September 7, 2010).
10.	The accused's confession to a ubantay bayan" is inadmissible in evidence if the same was done without the assistance of his lawyer and without waiver of his right to counsel (People v. Lauga, G.R. No. 186228, March 15, 2010). The Supreme Court held in this case that barangay-based volunteer organizations in the nature of watch groups, as in the case of the
"bantay bayan," are recognized by the
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(Rule 115)
local government unit to perform functions relating to the preservation of peace and order at the barangay level and any inquiry he makes has the color of a state-related function and objective insofar as the entitlement of a suspect to his constitutional rights provided for under Section 12, Article III, of the Constitution, otherwise known as the Miranda Rights, is concerned. Therefore, the extrajudicial confession of appellant taken without counsel was inadmissible in evidence (People v. Lauga, G.R. No. 186228, March 15, 2010).
Right to speedy trial; speedy disposition of cases (Bar 1996; 2002; 2007)
1.	The right to a speedy trial is explicitly guaranteed by Section 14(2) of Article III of the Constitution. Thus " x x x In criminal cases, the accused shall x x x enjoy the right x x x to have a speedy, impartial and public trial x x x" (See People v. Anonas, G.R. No. 156847, January 21,2007).
The same right is echoed and reinforced in Sec. 1(h) of Rule 115 of the Rules of Court declaring that one of the rights of an accused at trial is "To have a speedy, impartial and public trial."
Nowhere is the guarantee of the right to speedy disposition of cases more significant and meaningful than in criminal cases where not only the fortune, but the life and liberty of the accused as well, are at stake (Cabarles v. Maceda, 516 SCRA 303).
On the other hand, the right to a speedy disposition of cases is provided for under Section 16, Article III, of the Constitution which provides that, "all persons shall have the right to a speedy disposition of their cases before all judicial, quasi-judicial, or administrative bodies
2.	This right to a speedy trial has consistently been defined by the Court substantially "as one free from vexatious, capricious and oppressive delays, its purpose being to assure that an innocent person may be free from the anxiety and expense of a court litigation or, if otherwise, of having his guilt
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determined within the shortest possible time compatible with the presentation and consideration of whatsoever legitimate defense he may interpose."
It bears stressing that although the Constitution guarantees the right to the speedy disposition of cases, it is a flexible concept. Due regard must be given to the facts and circumstances surrounding each case. The right to a speedy disposition of a case, like the right to speedy trial, is deemed violated only when the proceedings are attended by vexatious, capricious, and oppressive delays, or when unjustified postponements of the trial are asked for and secured, or when without cause or justifiable motive, a long period of time is allowed to elapse without the party having his case tried. Just like the constitutional guarantee of "speedy trial," "speedy disposition of cases" is a flexible concept. It is consistent with delays and depends upon the circumstances. What the Constitution prohibits are unreasonable, arbitrary and oppressive delays which render rights nugatory (Ombudsman v. Jurado, G.R. No. 154155, August 6,2008; Lumanog, et al. v. People, G.R. No. 182555, September 7,2010).
The right does not preclude justifiable postponements and delay when warranted by the situation. In the application of the constitutional guarantee of the right, particular regard must also be taken of the facts and circumstances peculiar to each case (Domondon v. Sandiganbayan, 476 SCRA 496).
Although a speedy determination of an action or proceeding implies a speedy trial, it should be borne in mind that speed is not the chief objective of a trial. Careful and deliberate consideration for the administration of justice is more important than a race to end the trial. A genuine respect for the rights of all parties, thoughtful consideration before ruling on important questions, and a zealous regard for the just administration of law are some of the qualities of a good trial judge, which are more important than a reputation for hasty disposal of cases (Jamsani-Rodriguez v. Ong, A.M. No. 08- 19-SB-J, April 12,
	2011 citing State Prosecutors v. Muro, 251 SCRA 111). 	+1
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RIGHTS OF THE ACCUSED
(Rule 115)
3.	Under the Constitution, the right to a "speedy disposition of cases" is not limited to the accused in criminal proceedings but extends to all parties in all cases, including civil and administrative cases, and in all proceedings, including judicial and quasi-judicial hearings. Hence, under the Constitution, any party to a case may demand expeditious action from all officials who are tasked with the administration of justice (Ombudsman v. Jurado, G.R. No. 154155, August 6,2008).
4.	The essence of the judicial function is that justice shall be impartially administered without unnecessary delay (Re: Complaint Against Justice Elvi John S. Asuncion of the Court of Appeals, 518 SCRA 512).
When right to speedy disposition of cases is violated
1.	It has been held that the right to speedy disposition of cases is considered violated only when the proceedings are attended by vexatious, capricious, and oppressive delays. The concept of speedy disposition of cases is relative or flexible (Rodriguez v. Sandiganbayan, 424 SCRA 236; Dimayacyac v. Court of Appeals, 430 SCRA 121; Mendoza-Ong v. Sandiganbayan, 440 SCRA 423; Cabarles v. Maceda, 516 SCRA 303; Tilendo v. Ombudsman, 533 SCRA 331, September 13, 2007; Gaas v. Mitmug, G.R. No. 165776, April 30, 2008; Tan v. People, G.R. No. 173637, April 21,2009).
2.	Although courts have reiterated time and time again that in all criminal prosecutions, the accused shall enjoy his right to a speedy trial, the rule finds itself violated in some instances.
People v. Anonas, G.R. No. 156847, January 31,2007, for example is one case which aptly demonstrates a clear disregard of the right.
Here, the respondent, a police officer assigned to the Western Police District, was apprehended by his colleagues during a raid in Sta. Cruz, Manila. The apprehending police officers claimed that he and four other persons were sniffing methamphetamine hydrochloride, more popularly known as

	384 	CRIMINAL PROCEDURE: THE BAR LECTURES SERIES /
	UPDATED EDITION 	/
shabu, a regulated drug, and that he was in possession of an unlicensed .38. caliber revolver.
Two separate informations were filed against the respondent, one for illegal possession of methamphetamine hydrochloride, and another for illegal possession of firearm. Respondent filed with the trial court a motion for reinvestigation on grounds that he was apprehended without a warrant of arrest and that no preliminary investigation was conducted. The trial court granted the motion and a prosecutor was designated to conduct the reinvestigation who was later appointed judge of the RTC in Iloilo. Apparently, he did not inform the prosecutor who took his place about the pending reinvestigation. Meanwhile, respondent has remained in detention.
Almost five years after, the respondent filed with the trial court a motion to dismiss the informations, contending that the delay in the reinvestigation violated his right to due process. The trial court heard the motion to dismiss. It turned out that the prosecutor who took over the case was not aware of the pending reinvestigation. The trial court then directed him to terminate the reinvestigation within thirty (30) days. Within the period granted him, the prosecutor manifested before the trial court that the reinvestigation had been terminated and that evidence exist to sustain the allegations in the informations against respondent. The trial court then issued an Order denying respondent's motion to dismiss the informations. His motion for reconsideration was likewise denied.
Respondent then filed a petition for certiorari with the Court of Appeals, contending that the trial court committed grave abuse of discretion amounting to lack or excess of jurisdiction in denying his motion to dismiss both informations. The Court of Appeals granted the petition and set aside the Order of the trial court and dismissed the criminal charges against respondent.
The Court of Appeals ruled that having been made to wait for the resolution of his motion for reinvestigation for almost five years while being detained, the right of respondent to due process was violated. The Court of Appeals
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RIGHTS OF THE ACCUSED (Rule 115)
then ordered that respondent be released from custody. The Government, represented by the Solicitor General, moved for reconsideration, but the Court of Appeals denied the same.
Citing previous cases, the Supreme Court reiterated the rule that accused persons are guaranteed a speedy trial by the Bill of Rights and that such right is denied when an accused person, through the vacillation and procrastination of prosecuting officers, is forced to wait many months for trial. It called on all courts to be the last to set an example of delay and oppression in the administration of justice and it is the moral and legal obligation of the courts to see to it that the criminal proceedings against the accused come to an end and that they be immediately discharged from the custody of the law.
"The preliminary investigation of the respondent for the offenses charged took more than four years. He was apprehended for the offenses charged on November 19, 1996. Having been arrested without a warrant of arrest and not having been afforded a formal investigation, he prayed for reinvestigation of the cases. The trial court, in an Order dated January 28,1997 ordered a reinvestigation which was terminated only on February 16, 2001. In fact, even the Solicitor General admitted it took some time for the City Prosecutor to terminate and resolve the reinvestigation.
There can be no question that respondent was prejudiced by the delay, having to be confined for more than four oppressive years for failure of the investigating prosecutors to comply with the law on preliminary investigation. As aptly held by the Court of Appeals, respondent's right to due process had been violated."
3.	In Angcangco, Jr. v. Ombudsman, 268 SCRA. 301, the Court found the delay of six years by the Ombudsman in resolving the criminal complaints to be violative of the constitutionally guaranteed right to a speedy disposition of cases (Cited in People v. Anonas, supra).
4.	In Cervantes v. Sandiganbayan, 307 SCRA 149, it was held that the Sandiganbayan gravely abused its discre

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tion in not quashing the Information filed six years after the initiatory complaint, thereby depriving petitioner of his right to a speedy disposition of the case (People v. Anonas, supra).
5.	Similarly, in Roque v. Office of the Ombudsman, 307 SCRA 104, the Court ruled that the delay of almost six years disregarded the Ombudsman's duty to act promptly on complaints before him. The inordinate delay in terminating the preliminary investigation of an accused violates his constitutional right to due process. Thus, in Roque v. Sandiganbayan, 307 SCRA 104, the Court, restating the pronouncement in Ta- tad v. Sandiganbayan, 159 SCRA 70, held:
We find the long delay in the termination of the preliminary investigation by the Tanodbayan in the instant case to be violative of the constitutional right of the accused to due process. Substantial adherence to the requirements of the law governing the conduct of preliminary investigation, including substantial compliance with the time limitation prescribed by the law for the resolution of the case by the prosecutor, is part of the procedural due process constitutionally guaranteed by the fundamental law.
Not only under the broad umbrella of due process clause, but under the constitutional guaranty of "speedy disposition" of cases as embodied in Section 16 of the Bill of Rights (both in the 1973 and 1987 Constitutions), the inordinate delay is violative of the petitioner's constitutional rights. A delay of close to three (3) years cannot be deemed reasonable or justifiable in the light of the circumstances obtaining in the case at bar. We are not impressed by the attempt of the Sandiganbayan to sanitize the long delay by indulging in the speculative assumption that "delay may be due to a painstaking and grueling scrutiny by the Tanodbayan as to whether the evidence presented during the preliminary investigation merited prosecution of a former high-ranking government official." In the first place, such a statement suggests a double standard of treatment, which must be emphatically rejected. Secondly, three out of the five charges against the petitioner were for his alleged failure to file his sworn statement of assets and liabilities required by Republic Act 3019, which certainly did not involve complicated legal and fac- '
CHAPTER VII
RIGHTS OF THE ACCUSED (Rule 115)
tual issues necessitating such "painstaking and grueling scrutiny as would justify a delay of almost three years in terminating the preliminary investigation. The other two charges relating to alleged bribery and alleged giving [of] unwarranted benefits to a relative, while presenting more substantial legal and factual issues, certainly do not warrant or justify the period of three years, which it took the Tanodbayan to resolve the case (Emphasis supplied; People v. Anonas, supra).
6.	A judge's illness should not be an excuse for his failure to render the corresponding decision or resolution within the prescribed period. The demands of public service cannot abide by his illness. In case of poor health, the judge concerned needs only to ask the Supreme Court for an extension of time to decide cases, as soon as it becomes clear to him that there would be delay in his disposition of cases (Balajedeong v. Del Rosario, 524 SCRA 13).
7.	Also, the designation of a judge to preside over another sala is an insufficient reason to justify delay in deciding a case (Bernaldez v. Avelino, 527 SCRA 11). A heavy work load due to additional work, as acting presiding judge in other courts, is not sufficient justification for the delay because judges are allowed, upon motion or letter-request, extensions of the reglementary period in deciding cases (Re: Report on the Judicial and Financial Audit Conducted in MTCs of Bayom- bong & Solano & MCTC, Aritao-Sta. Fe, Nueva Vizcaya, 535 SCRA 224).
8.	The absence of a branch clerk of court should not affect the prompt disposition of cases. It is the duty of the judge to recommend to the Supreme Court the immediate appointment of a branch clerk of court (Office of the Court Administrator v. Laron, 527 SCRA 45). Even the non-submission of the transcript of stenographic notes by stenographers would not relieve judges of their duty to render a decision within the required period as judges are directed to take down notes of salient portions of the hearing and proceed in the preparation of decisions without waiting for the transcribed stenographic notes (Office of the Court Administrator v. Janolo, Jr.
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	UPDATED EDITION 	/
534 SCRA 262). The incompleteness of the transcript of stenographic notes is not a ground for delay (Re: Report on the Judicial Audit Conducted in the Regional Trial Court, Branch 4, Dolores, Eastern Samar, 536 SCRA 313).
9. The defects in a motion are not reasons for a judge not to act on the same. If a judge believes that the motions pending before him were defective, he could have simply acted on the said motions and indicated the supposed defects instead of just leaving them unresolved (Heirs of Simeon Piedad v. Estrera, A.M. No. RTJ-09-2170, December 16, 2009).
Purpose of time limits set by law or the rules; principle of speedy trial is a relative term
 As a general principle, rules prescribing the .time within which certain acts must be done, or certain proceedings taken, are considered absolutely indispensable to the prevention of needless delays and the orderly and speedy discharge of judicial business (Balajedeong v. Del Rosario, 524 SCRA 13; Galanza v. Trocino, 529 SCRA 200).
As a rule, failure to resolve cases within the period fixed by law constitutes a serious violation of the Constitution (Petallar v. Pullos, 419 SCRA 434). It is not excusable and constitutes gross inefficiency that warrants the imposition of administrative sanctions (Office of the Court Administrator v. Legaspi, Jr., 512 SCRA 570; Re: Complaint Against Justice Elvi John S. Asuncion of the Court of Appeals, 518 SCRA 512; Pacquing v. Gobarde, 521 SCRA 464; Office of the Court Administrator v. Go, 534 SCRA 156).
An unwarranted slow down in the disposition of cases erodes the faith and confidence of the people in the judiciary, lowers its standards, and brings it into disrepute (Biggel v. Pamintuan, 559 SCRA 344).
	 	Various decisions like Olbes v. Buemio, G.R. No. 173319,
December 4, 2009, have held that the principle of "speedy trial" is a relative term and necessarily involves a degree of flexibility. Thus, in spite of the prescribed time limits,

	CHAPTER VII
(Rule 115)
jurisprudence continues to adopt the view that the concept of "speedy trial" is a relative term and must necessarily be a flexible concept and that while justice is administered with dispatch, the essential ingredient is orderly, expeditious and not mere speed. The Court explained that it cannot be definitely said how long is too long in a system where justice is supposed to be swift, but deliberate. It is consistent with delays and depends upon circumstances. It secures rights to the accused, but it does not preclude the rights of public justice hence, a balancing test of applying societal interests and the rights of the accused necessarily compels the court to approach speedy trial cases on an ad hoc basis.
 The time limits set by the Speedy Trial Act of 1998 do not preclude justifiable postponements and delays when so warranted by the situation (Olbes v. Buemio, G.R. No.173319, December 4, 2009).
 The Supreme Court in Jacob v. Sandiganbayan, G.R. No. 162206, November 17, 2010, emphasized that "the Revised Rules on Criminal Procedure also include provisions that ensure the protection of such right" like Section 1(h) of Rule 115 which provides that the accused shall have the right to a "speedy, impartial, and public trial." Also, Sec. 2 of Rule 119 further provides that "x x x Trial, once commenced, shall continue from day to day as far as practicable until terminated. It may be postponed for a reasonable period of time for good cause."
Citing previous decisions, the Court however, cautioned that the concept of speedy trial "is a relative term and necessarily a flexible concept. In determining whether the right of the accused to a speedy trial was violated, the delay should be considered, in view of the entirety of the proceedings. Indeed, mere mathematical reckoning of the time involved would not suffice as the realities of everyday life must be regarded in judicial proceedings which, after all, do not exist in a vacuum."
 In Tan v. People, G.R. No. 173637, April 21, 2009, no objection was interposed by his defense counsel when at
	 	CRIMINAL PROCEDURE: THE BAR LECTURES SERIES
UPDATED EDITION
the preliminary hearing the prosecution manifested that the evidence to be presented would be only for the other two cases against the petitioner and not on the case where he claims a violation of his right to speedy trial. His failure to object to the prosecution's manifestation that the cases be tried separately is fatal to his case. In fact, petitioner's acquiescence is evident from the transcript of stenographic notes during the initial presentation of the People's evidence in the other cases.
In the cases involving petitioner, the length of delay, complexity of the issues and his failure to invoke said right to speedy trial at the appropriate time tolled the death knell on his claim to the constitutional guarantee. More importantly, in failing to interpose a timely objection to the prosecution's manifestation during the preliminary hearings that the cases be tried separately, one after the other, petitioner was deemed to have acquiesced and waived his objection thereto. The Court hence, found that there is clearly insufficient ground to conclude that the prosecution is guilty of violating petitioner's right to speedy trial (Tan v. People, G.R. No. 173637, April 21, 2009).
Remedy for a violation of the right to speedy trial
1.	The trial court may dismiss a criminal case on a motion nolle prosequi if the accused is not brought to trial within the prescribed time and is deprived of his right to a speedy trial or disposition of the case on account of unreasonable or capricious delay caused by the prosecution (Corpuz v. Sandi- ganbayan, 442 SCRA 294).
2.	A dismissal based on a violation of the right to speedy trial is equivalent to an acquittal and double jeopardy may attach even if the dismissal is with the consent of the accused. It would bar further prosecution of the accused for the same offense (Condrada v. People, 398 SCRA 482; Esmena v. Pogoy, G.R. No. 54110, February 20, 1981). To exercise the right to speedy trial, the accused should ask for the trial of the case first instead of moving for its dismissal outrightly. If the prosecution cannot produce its witnesses or evidence and its
CHAPTER VII
(Rule 115)
motion for postponement is denied, then the accused should move for the dismissal of the case, such dismissal amounting to an acquittal (People v. Cacdac, L-45650, March 29,1982).
Factors for granting continuance
1.	The factors, among others, which a justice or judge shall consider in determining whether to grant a continuance are as follows:
(a)	Whether the failure to grant such a continuance in the proceeding would be likely to make a continuation of such proceeding impossible, or result in a miscarriage of justice.
(b)	Whether the case taken as a whole is so novel, so unusual and so complex, due to the number of accused or the nature of the prosecution or otherwise, that it is unreasonable to expect adequate preparation within the periods of time established by this Act (Sec. 11, Speedy Trial Act).
2.	No continuance under letter "f' of Section 10 of the Act shall be granted because of general congestion of the court's calendar, or lack of diligent preparation or failure to obtain available witnesses on the part of the public prosecutor (Sec. 11, Speedy Trial Act).
Guidelines to determine violation of the right to speedy trial and speedy disposition of cases; balancing test
1.	In determining whether or not the right to the speedy disposition of cases has been violated, the Court has laid down the following guidelines: (1) the length of the delay; (2) the reasons for such delay; (3) the assertion or failure to assert such right by the accused; and (4) the prejudice caused by the delay (Ombudsman v. Jurado, G.R. No. 154155, August 6, 2008; Tan v. People, G.R. No. 173637, April 21,2009; Olbes v. Buemio, G.R. No.173319, December 4, 2009).
2.	The above guidelines are confirmations of the guidelines declared in the famous American case of Barker< v.


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	UPDATED EDITION 	/
Wingo, 407 U.S. 514 (1972), a case in which the United States Supreme Court concededly made the most comprehensive discussion of the right to speedy trial. Here, the petitioner and his alleged accomplice, were accused and tried with the murder of an elderly couple in a county in Kentucky. Since the prosecution believed that it had a stronger case against the petitioner's co-accused, it presented evidence against the latter first who was tried ahead of the petitioner. It was the hope of the prosecution that after his conviction he would be utilized as a witness against the petitioner. The co-accused was tried several times because of hung juries and a series of appeals. When he was convicted and it was time to hold the trial for the petitioner, the chief investigating officer became ill and could not testify. In all, the petitioner had waited more than five years for his trial. He then raised the issue of the violation of his right to a speedy trial.
The U.S. Supreme Court held that determinations of whether or not the right to a speedy trial has been violated or denied must be made on a case to case basis. Accordingly: "A defendant's constitutional right to speedy trial can be determined only on an ad hoc basis in which the conduct of the prosecution and the defendant are weighed and balanced; among factors which courts should assess in determining whether a particular defendant has been deprived of his right are length of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant." It proceeded to explain that none of the factors mentioned is by itself determinative. All must be considered and weighed together under what is now known as the "balancing test."
While it appeared that in Barker, the delays were due to continuances or postponements initiated by the prosecution, the petitioner failed to timely assert his right to a speedy trial. The records show that he raised his right only after a series of sixteen (16) continuances made by the prosecution. Coupled with the absence of a showing that he was actually prejudiced, the U.S. Supreme Court held that despite the delays, the petitioner's right to a speedy trial has not been violated.
	CHAPTER VII 	393
(Rule 115)
3. In Perez v. People, G.R. No. 164763, February 12, 2008, the accused claimed a violation of his right to a speedy disposition of his case because the decision of the Sandigan- bayan was handed down after the lapse of more than twelve years. "The years that he had to wait for the outcome of his case were allegedly spent in limbo, pain and agony."
The Court rejected the contention of the petitioner finding no serious prejudice caused upon him by the alleged delay. The Court likewise found that the petitioner himself did not want a speedy disposition of his case. Petitioner was duly represented by counsel de parte in all stages of the proceedings before the Sandiganbayan until his conviction The records do not however, show that petitioner has filed any motion or manifestation which could be construed even remotely as an indication that he wanted his case to be dispatched without delay. For this, the Court concluded that the petitioner "has clearly slept on his right." The Court further explained that "the matter could have taken a different dimension if during all those twelve years, petitioner had shown signs of asserting his right to a speedy disposition of his case or at least made some overt acts, like filing a motion for early resolution, to show that he was not waiving that right."
Approaches to speedy trial
Perez v. People heavily relied on Barker v. Wingo in disposing of the issue of speedy trial declaring that in that case the United States Supreme Court was confronted for the first time with two "rigid approaches" on speedy trial, namely as "ways of eliminating some of the uncertainty which courts experience protecting the right." These are:
(a)	The "fixed-time period" which holds the view that the Constitution requires a criminal defendant to be offered a trial within a specified time period.
(b)	The "demand-waiver rule9 which provides that a defendant waives any consideration of his right to speedy trial for any period prior to which he has not demanded trial. Under this rigid approach, a prior de
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	UPDATED EDITION 	/
mand is a necessary condition to the consideration of the speedy trial right.
"The fixed-time period was rejected because there is no constitutional basis for holding that the speedy trial can be quantified into a specific number of days or months." The demand-waiver rule was likewise rejected because aside from the fact that it is inconsistent with this Court's pronouncements on waiver of constitutional rights, "it is
insensitive to a right which we have deemed fundamental."
x x x
The Court went on to adopt a middle ground: the 'balancing test* in which the conduct of both the prosecution and defendant are weighed. The test necessarily compels courts to approach speedy trial cases on an ad hoc basis where courts should assess and identify certain factors which courts should assess in determining whether a particular defendant has been deprived of his right such as the length of the delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant.
x x x
The length of the delay is to some extent a triggering mechanism. Until there is some delay which is presumptively prejudicial, there is no necessity for inquiry into the other factors that go into the balance. Nevertheless, because of the imprecision of the right to speedy trial, the length of delay that will provoke such an inquiry is necessarily dependent upon the peculiar circumstances of the case. To take but one example, the delay that can be tolerated for an ordinary street crime is considerably less than for a serious, complex conspiracy charge.
Closely related to length of delay is the reason the government assigns to justify the delay. Here, too, different weights should be assigned to different reasons. A deliberate attempt to delay the trial in order to hamper
	CHAPTER VII 	395
(Rule 115)
the defense should be weighted heavily against the government. A more neutral reason such as negligence or overcrowded courts should be weighted less heavily but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant. Finally, a valid reason, such as a missing witness, should serve to justify appropriate delay. We have already discussed the third factor, the defendant's responsibility to assert his right. Whether and how a defendant asserts his right is closely related to the other factors we have mentioned. The strength of his efforts will be affected by the length of the delay, to some extent by the reason for the delay, and most particularly by the personal prejudice, which is not always readily identifiable, that he experiences. The more serious the deprivation, the more likely a defendant is to complain. The defendant's assertion of his speedy trial right, then, is entitled to strong evidentiary weight in determining whether the defendant is being deprived of the right. We emphasize that failure to assert the right will make it difficult for a defendant to prove that he was denied a speedy trial.
A fourth factor is prejudice to the defendant. Prejudice, of course, should be assessed in the light of the interests of defendants which the speedy trial right was designed to protect. This Court has identified three such interests: (i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and
(iii) to limit the possibility that the defense will be impaired. Of these, the most serious is the last, because the inability of a defendant adequately to prepare his case skews the fairness of the entire system. If witnesses die or disappear during a delay, the prejudice is obvious. There is also prejudice if defense witnesses are unable to recall accurately events of the distant past. Loss of memory, however, is not always reflected in the record because what has been forgotten can rarely be shown."

UPDATED EDITION 	/
The privilege against self-incrimination (Bar 1996; 1998; 2004; 2005)
1.	The privilege is expressed in the following provisions:
(a)	"No person shall be compelled to be a witness against himself" (Sec. 17, Art. Ill, Philippine Constitution).
(b)	"In all criminal prosecutions, the accused shall be entitled to the following rights x x x (e) To be exempt from being compelled to be a witness against himself" (Sec. l[e], Rule 115, Rules of Court).
2.	The privilege is intended to prevent the State, with all its coercive powers, from extracting from the suspect testimony that may convict him and to avoid a person subject to such compulsion to perjure himself for his own protection (People v. Besonia, 422 SCRA 210).
3.	"The privilege rests upon the principle that "forcing a man to be a witness against himself is at war with 'the fundamentals of a republican government;' that [i]t may suit the purposes of despotic power but it cannot abide the pure atmosphere of political liberty and personal freedom, x x x The maxim Nemo tenetur seipsum accusare had its origin in a protest against the inquisitorial and manifestly unjust methods of interrogating accused persons, which has long obtained in the continental system, and, until the expulsion of the Stuarts from the British throne in 1688, and the erection of additional barriers for the protection of the people against the exercise of arbitrary power, was not uncommon even in England. While the admissions of confessions of the prisoner, when voluntarily and freely made, have always ranked high in the scale of incriminating evidence, if an accused person be asked to explain his apparent connection with a crime under investigation, the ease with which the questions put to him may assume an inquisitorial character, the temptation to press, the witness unduly, to browbeat him if he be timid or reluctant, to push him into a corner, and to entrap him into fatal contradictions, which is so painfully evident in many of the earlier state tri