CASE 11

Agbay vs. Hon. Deputy Ombudsman for the Military G. R. No. 134503 July 2, 1999

FACTS: On September 7, 1997, petitioner, together with Sherwin Jugalbot, was arrested and
detained at the Liloan Police Station, Metro Cebu for an alleged violation of R.A. 7610 or the
"Special Protection of Children Against Child Abuse, Exploitation and Discrimination Act.”
Thereafter, a complaint was filed against petitioner and Jugalbot before the 7th MCTC, Metro
Cebu by Joan Gicaraya for and in behalf of her daughter Gayle. The complaint states that the
accused, did then and there, willfully, feloniously and unlawfully, conspiring, confederating,
helping with one another, while Agbay manipulating to finger the vagina of Gayle Fatima
Amigable Gicayara, his companion block the sight of the victim’s mother, while on board a
tricycle going their destinations. Upon initial investigation of the Barangay Captain of Catarman,
Jugalbot was released; and Agbay is presently detained. On September 10, counsel for petitioner
wrote the Chief of Police of Liloan demanding the immediate release of petitioner considering
that the latter had "failed to deliver Agbay to the proper judicial authority within 36 hours from
September 7, 1997. Private respondents did not act on this letter and continued to detain
petitioner. On September 26, petitioner filed a complaint for delay in the delivery of detained
persons against herein private respondents SPO4 Nemesio Natividad, Jr., SPO2 Eleazar M.
Salomon and other unidentified police officers stationed at the Liloan Police Substation.
Regarding the complaint for violation of R.A. 7610, it is alleged by petitioner that on November
10, the 7th MCTC of Liloan, Metro Cebu issued a resolution stating that there is probable cause
for the crime in violation of R.A. 7610. Thus, an information was filed against the two accused.
On the other hand, the case for delay in delivery filed by the petitioner against private
respondents was forwarded to the Ombudsman for the Military, thereby recommending its
dismissal. Hence, this petition for certiorari.

ISSUE: Whether or not the arrest of the petitioner is legal without a warrant. 

RULING: Yes. Warrantless arrests are sanctioned in the following instances: Sec. 5. Arrest
without warrant; when lawful. - A peace officer or a private person may, without a warrant,
arrest a person: (a) When, in his presence, the person to be arrested has committed, is actually
committing, or is attempting to commit an offense; (b) When an offense has in fact just been
committed, and he has personal knowledge of facts indicating that the person to be arrested has
committed it. (c) When the person to be arrested is a prisoner who has escaped from a penal
establishment or place where he is serving final judgment or temporarily confined while his case
is pending, or has escaped while being transferred from one confinement to another. The
policemen's warrantless arrest of petitioner could likewise be justified under paragraph (b) as he
had in fact just committed an offense. There was no supervening event or a considerable lapse of
time between the hit and run and the actual apprehension. Furthermore, the arrest was proper as
he was again actually committing another offense (illegal possession of firearm and
ammunitions) and this time in the presence of a peace officer. Even assuming that the firearms
and ammunitions were products of an active search done by the authorities on the person and
vehicle of petitioner, their seizure without a search warrant can still be justified under a search

incidental to a lawful arrest. Once the lawful arrest was effected, the police may undertake a
protective search of the passenger compartment and containers in the vehicle which are within
petitioner's grabbing distance regardless of the nature of the offense. Thus, a warrantless search
is constitutionally permissible when, as in this case, the officers conducting the search have
reasonable or probable cause to believe, before the search, that either the motorist is a law-
offender (like herein petitioner with respect to the hit and run) or the contents or cargo of the
vehicle are or have been instruments or the subject matter or the proceeds of some criminal
offense. The petition is dismissed.