PRE TRIAL without raising the issue of jurisdiction over their
person. Their filing the motion is tantamount to
Q: Lilio filed a complaint in the MTC of Lanuza for
the recovery of a sum of money against Juan. The
latter filed his answer to the complaint serving a copy
thereof on Lilio. After the filing of the answer of Juan,
whose duty is it to have the case set for pre-trial?
Why? (2001 Bar)
A: After the filing of the answer of Juan, the plantiff
has the duty to promptly move ex parte that the case
be set for pre-trial (Sec. 1, Rule 18). The reason is that
it is the plaintiff who knows when the last pleading
has been filed and it is the plaintiff who has the duty
to prosecute.
Pre-Trial Agreement
Q: Mayor TM was charged of malversation through
falsification of official documents. Assisted by Atty.
OP as counsel de parte during pre-trial, he signed
together with Ombudsman Prosecutor TG a “Joint
Stipulation of Facts and Documents,” which was
presented to the Sandiganbayan. Before the court
could issue a pre-trial order but after some delay
caused by Atty. OP, he was substituted by Atty. QR as
defense counsel. Atty QR forthwith filed a motion to
withdraw the “Joint Stipulation,” alleging that it is
prejudicial to the accused because it contains, inter
alia, the statement that the “Defense admitted all the
documentary evidence of the Prosecution,” thus
leaving the accused little or no room to defend
himself, and violating his right against self-
incrimination. Should the court grant or deny QR’s
motion? Reason. (2004 Bar)
A: The court should deny QR’s motion. If in the pre-
trial agreement signed by the accused and his counsel,
the accused admits the documentary evidence of the
prosecution, it does not violate his right against self-
incrimination. His lawyer cannot file a motion to
withdraw. A pre-trial order is not needed. (Bayas v.
Sandiganbayan, G.R. Nos. 143689- 91, November 12,
2002). The admission of such documentary evidence
is allowed by the rule (Sec. 2, Rule 118; People v.
Hernandez, G.R. No. 108028, July 30, 1996).
JURISDICTION OF CRIMINAL ACTIONS
Q: Jose, Alberto and Romeo were charged with
murder. Upon filing of the information, the RTC
judge issued the warrants for their arrest. Learning of
the issuance of the warrants, the three accused jointly
filed a motion for reinvestigation and for the recall of
the warrants of arrest. On the date set for hearing of
their motion, none of the accused showed up in court
for fear of being arrested. The RTC judge denied their
motion because the RTC did not acquire jurisdiction
over the persons of the movants. Did the RTC rule
correctly? (2008 Bar)
A: No, the court acquired jurisdiction over the person
of the accused when they filed the aforesaid motion
and invoked the court’s authority over the case,
voluntary submission to the court’s jurisdiction and
contributes voluntary appearance. (Miranda v. Tuliao,
G.R. No. 158763, March 31, 2006).
Q: In complex crimes, how is the jurisdiction of a
court determined? (2003 Bar)
A: In a complex crime, jurisdiction over the whole
complex crime must be lodged with the trial court
having jurisdiction to impose the maximum and most
serious penalty imposable on an offense forming part
of the complex crime. (Cuyos v. Garcia, G.R. No. L-
46934 April 15, 1988).
Q: Mariano was convicted by the RTC for raping
Victoria and meted the penalty of reclusion perpetua.
While serving sentence at the National Penitentiary,
Mariano and Victoria were married. Mariano filed a
motion in said court for his release from the
penitentiary on his claim that under Republic Act No.
8353, his marriage to Victoria extinguished the
criminal action against him for rape, as well as the
penalty imposed on him. However, the court denied
the motion on the ground that it had lost jurisdiction
over the case after its decision had become final and
executory.
1. Is the ruling of the court correct? Explain.
A: No. The court can never lose jurisdiction so long
as its decision has not yet been fully implemented and
satisfied. Finality of a judgment cannot operate to
divest a court of its jurisdiction. The court retains an
interest in seeing the proper execution and
implementation of its judgments, and to that extent,
may issue such orders necessary and appropriate for
these purposes. (Echegaray v. Secretary of Justice,
G.R. No. 13205, January 19, 1999)
2. What remedy/remedies should the counsel of
Mariano take to secure his proper and most
expeditious release from the National
Penitentiary? Explain. (2005 Bar)
A: To secure the proper and most expeditious release
of Mariano from the National Penitentiary, his counsel
should file: (a) a petition for habeas corpus for the
illegal confinement of Mariano (Rule 102), or (b) a
motion in court which convicted him, to nullify the
execution of his sentence or the order of his
commitment on the ground that a supervening
development had occurred (Melo v. People, G.R. No.
L-3580, March 22, 1950) despite the finality of the
judgment.
When injunction may be issued to restrain
criminal prosecution
Q: Will the injunction lie to restrain the
commencement of a criminal action? Explain. (1999
Bar)
A: As a general rule, injunction will not lie to restrain
a criminal prosecution except:
1. To afford adequate protection to the
constitutional rights of the accused;
2. When necessary for the orderly administration of
justice or to avoid oppression or multiplicity of
actions;
3. When double jeopardy is clearly apparent;
4. Where the charges are manifestly false and
motivated by the lust for vengeance; and
5. Where there is clearly no prima facie case against
the accused and a motion to quash on that ground
has been denied. (Roberts v. Court of Appeals,
G.R. No. 113930, March 5, 1996; Brocka v.
Ponce Enrile, G.R. No. 69863- 65, December 10,
1990)
Designation of Offense
Q: The prosecution filed an information against Jose
for slight physical injuries alleging the acts
constituting the offense but without any more alleging
that it was committed after Jose’s unlawful enter in
the complainant’s
abode. Was the information correctly prepared by the
prosecution? Why? (2001 Bar)
A: No. The aggravating circumstance of unlawful
entry in the complainant’s abode has to be specified in
the information; otherwise, it cannot be considered as
aggravating. (Sec. 8, Rule 110)
Amendment or substitution of complaint or
information
Q: D and E were charged with homicide in one
Information. Before they could be arraigned, the
prosecution moved to amend the information to
exclude E therefrom. Can the court grant the motion
to amend? Why? (2001, 2002 Bar)
A: Yes, provided notice is given to the offended party
and the court states its reasons for granting the same.
(Sec. 14, Rule 110)
Q: On the facts above stated, suppose the prosecution,
instead of filing a motion to amend, moved to
withdraw the information altogether and its motion
was granted. Can the prosecution re-file the
information although this time for murder? Explain.
A: Yes, the prosecution can re-file the information for
murder in substitution of the information for homicide
because no double jeopardy has a yet attached.
(Galvez v. Court of Appeals, G.R. No. 114046
October 24, 1994)
Q: A was accused of homicide for the killing of B.
During the trial, the public prosecutor received a copy
of the marriage certificate of A and B. a. Can the
public prosecutor move for the amendment of the
information to charge A with the crime of parricide?
A: No. The information cannot be amended to change
the offense charged from homicide to parricide. The
marriage is not a supervening fact arising from the act
constituting the charge of homicide. (Sec. 8, Rule
110)
Q: Suppose instead of moving for the amendment of
the information, the public prosecutor presented in
evidence the marriage certificate without objection on
the part of the defense, could A be convicted of
parricide? (1997 Bar)
A: No. A can be convicted only of homicide not of
parricide which is a graver offense. The accused has
the constitutional rights of due process and to be
informed of the nature and the cause of the accusation
against him. (Sec. 1, 14[1] and [2] Art. III, 1987
Constitution).
PRELIMINARY INVESTIGATION
Preliminary investigation is an inquiry or
proceeding to determine whether there is sufficient
ground to engender a well-founded belief that a crime
has been committed and the respondent is probably
guilty thereof, and should be held for trial.
Q: In a neighborhood bicycle race, Mr. A bumped the
bicycle of one of his competitors, Mr. B, in order to
get ahead. This caused the latter to lose control of the
bike which hit the concrete pavement and sent Mr. B
crashing headfirst into the sidewalk. By the time the
organizers got to him, Mr. B was dead. Law
enforcement authorities who witnessed the incident
arrested Mr. A without a warrant, and immediately
brought him to the inquest prosecutor for the conduct
of an inquest. Thereafter, an Information for
Homicide was filed by the inquest prosecutor without
the conduct of a preliminary investigation. The next
day Mr. A requested for the conduct of a preliminary
investigation.
(a) Is the inquest prosecutor's filing of the
Information without the conduct of preliminary
investigation proper?
A: Yes. The initial duty of the inquest officer is to
determine whether the respondent was arrested
pursuant to Section 5, Rule 113. If that was so, then
he can file the information immediately in the proper
court. Since Mr. A was arrested in flagrante delicto,
the action of the inquest prosecutor in filing the
Information without conducting a preliminary
investigation was correct. (Section 8, Rule on Inquest)
(b) Is Mr. A's request permissible? Explain. (2017,
2019 Bar)
A: The request of Mr. R to conduct a preliminary
investigation was correct and the same is supported
by the Revised Guidelines on Continuous trial
because it was made within the five (5)-day
reglementary period from inquest and filing of the
Information in Court. Mr. R’s request was made a day
after the Information for Homicide was filed in court
by the inquest prosecutor. (A.M. No. 15-06-10-SC,
otherwise known as the Revised Guidelines for
Continuous trial in Criminal cases)
Q: Regional Director AG of the Department of Public
Works and Highways was charged with violation of
Section 3(e) of Republic Act No. 3019 in the Office of
the Ombudsman. An administrative charge for gross
misconduct arising from the transaction subject matter
of said criminal case was filed against him in the
same office. The Ombudsman assigned a team
composed of investigators from the office of the
Special Prosecutor and from the Office of the Deputy
Ombudsman for the Military to conduct a joint
investigation of the criminal case and the
administrative case. The team of investigators
recommended to the Ombudsman that AG be
preventively suspended for a period not exceeding six
months on its finding that the evidence of guilt is
strong. The Ombudsman issued the said order as
recommended by the investigators. AG moved to
reconsider the order on the following grounds: a) The
office of the Special Prosecutor had exclusive
authority to conduct a preliminary investigation of the
criminal case; b) The order for his preventive
suspension was premature because he has yet to file
his answer to the administrative complaint and submit
countervailing evidence; and c) he was career
executive service officer and under Presidential
Decree No. 807 (Civil Service Law), his preventive
suspension shall be for a maximum period of three
months. Resolve with reasons the motion of
respondent AG. (2005 Bar)
A: The motion should be denied for the following
reasons:
1. The office of the Special Prosecutor does not
have exclusive authority to conduct a preliminary
investigation of the criminal case but it
participated in the investigation together with the
Deputy Ombudsman for the Military who can
handle cases of civilians and is not limited to the
military.
2. The order of preventive suspension need not wait
for the answer to the administrative complaint
and the submission of countervailing evidence.
(Garcia v. Mojica, G.R. No. 13903, September
10, 1999).
Q: X, an undersecretary of DENR, was charged
before the Sandiganbayan for malversation of public
funds allegedly committed when he was still the
Mayor of a town in Rizal. After arraignment, the
prosecution moved that X be preventively suspended.
X opposed the motion arguing that he was now
occupying a position different from that which the
Information charged him and therefore, there is no
more possibility that he can intimidate witnesses and
hamper the prosecution. Decide. Suppose X files a
Motion to Quash challenging the validity of the
Information and the Sandiganbayan denies the same,
will there still be a need to conduct a pre-suspension
hearing? Explain. (2012 Bar)
A: There is no necessity for the court to conduct
presuspension hearing. Under Section 13 of RA No.
3019, an incumbent public officer against whom any
criminal prosecution under a valid information for
graft-related crime such as malversation is pending in
court, shall be suspended from office. The word
“office”, from which the public officer charged shall
be preventively suspended, could apply to any office,
which he might currently be holding and not
necessarily the particular office under which he was
charged. Thus, the DENR undersecretary can be
preventively suspended even though he was a mayor,
when he allegedly committed malversation.
Settled is the rule that where the accused files a
motion to quash the information or challenges the
validity thereof, a show-cause order of the trial court
would no longer be necessary. What is indispensable
is that the trial court duly hear the parties at a hearing
held for determining the validity of the information,
and thereafter hand down its ruling, issuing the
corresponding order of suspension should it uphold
the validity of the information (Luciano v. Mariano,
G.R. No. L-32950, July 30, 1971). Since a pre-
suspension hearing is basically a due process
requirement, when an accused public official is given
an adequate opportunity to be heard on his possible
defenses against the mandatory suspension under
R.A. No. 3019, then an accused would have no reason
to complain that no actual hearing was conducted.
(Miguel v. Sandiganbayan, G.R. No. 172035, July 04,
2012).
In the facts given, the DENR Undersecretary was
already given opportunity to question the validity of
the Information for malversation by filing a motion to
quash, and yet, the Sandiganbayan sustained its
validity. There is no necessity for the court to conduct
pre-suspension hearing to determine for the second
time the validity of the information for purpose of
preventively suspending the accused.
Q: You are the defense counsel of Angela Bituin who
has been charged under RA 3019 (Anti- Graft and
Corrupt Practices Act) before the Sandiganbayan.
While Angela has posted bail, she has yet to be
arraigned. Angela revealed to you that she has not
been investigated for any offense and that it was only
when police officers showed up at her residence with
a warrant of arrest that she learned of the pending
case against her. She wonders why she has been
charged before the Sandiganbayan when she is not in
government service.
1. What "before-trial" remedy would you
invoke in Angela’s behalf to address the fact
that she had not been investigated at all, and
how would you avail of this remedy?
A: I will file a motion for the conduct of preliminary
investigation or reinvestigation and the quashal or
case is pending with an additional prayer to suspend
the arraignment.
Under Section 6, Rule 112, after filing of the
complaint or information in court without a
preliminary investigation, the accused may within five
days from the time he learns of its filing ask for a
preliminary investigation with the same right to
adduce evidence in his defense.
Moreover, Section 26, Rule 114 provides that 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 therefor, or from
assailing the regularity or questioning the absence of a
preliminary investigation of the charge against him,
provided that he raises them before entering his plea.
The court shall resolve the matter as early as
practicable as but not later than the start of the trial of
the case.
2. What "during-trial" remedy can you use to
allow an early evaluation of the prosecution
evidence without the need of presenting
defense evidence; when and how can you
avail of this remedy? (2013 Bar)
A: I will file first a motion for leave to file a demurrer
within five (5) days from the time the prosecution
rested its case. If the same is granted, then I will now
file a demurrer to evidence within ten (10) days (Sec.
23, Rule 119). This remedy would allow the
evaluation of the sufficiency of prosecution’s
evidence without the need of presenting defense
evidence. It may be done through the court’s initiative
or upon motion of the accused and after the
prosecution rested its case. (Sec. 23, Rule 119)
Q: On his way to the PNP Academy in Silang, Cavite
on board a public transport bus as a passenger, Police
Inspector Masigasig of the Valenzuela Police
witnessed an on-going armed robbery while the bus
was traversing Makati. His alertness and training
enabled him to foil the robbery and to subdue the
malefactor. He disarmed the felon and while frisking
him, discovered another handgun tucked in his waist.
He seized both handguns and the malefactor was later
charged with the separate crimes of robbery and
illegal possession of firearm. May the charges of
robbery and illegal prosecution of firearm be filed
directly by the investigating prosecutor with the
appropriate court without a preliminary investigation?
(2013 Bar)
A: Yes. Since the offender was arrested in flagrante
delicto without a warrant of arrest; an inquest
proceeding should be conducted and thereafter a case
may be filed in court even without the requisite
preliminary investigation.
Under Section 7, Rule 112, when a person is lawfully
arrested without a warrant involving an offense which
requires preliminary investigation, the complaint or
information may be filed by a prosecutor without the
need of such investigation provided an inquest has
been conducted in accordance with existing rules. In
the absence or unavailability of an inquest prosecutor,
the complaint may be filed by the offended party or a
peace officer directly with the proper court on the
basis of the affidavit of the offended party or arresting
officer or person.
Q: Engr. Magna Nakaw, the District Engineer of the
DPWH in the Province of Walang Progreso, and Mr.
Pork Chop, a private contractor, were both charged in
the Office of the Ombudsman for violation of the
Anti-Graft and Corrupt Practices Act (R.A. No. 3019)
under a conspiracy theory. While the charges were
undergoing investigation in the Office of the
Ombudsman, Engr. Magna Nakaw passed away. Mr.
Pork Chop immediately filed a motion to terminate
the investigation and to dismiss the charges against
him, arguing that because he was charged in
conspiracy with the deceased, there was no longer a
conspiracy to speak of and, consequently, any legal
ground to hold him for trial had been extinguished.
Rule on the motion to terminate filed by Mr. Pork
Chop, with brief reasons. (2017 Bar)
A: Mr. Pork Chop’s motion to terminate the
investigation before the Office of the Ombudsman
should be denied. In a case involving similar facts, the
Supreme Court held that the death of a co-conspirator,
even if he was the lone public officer, did not mean
that the allegation of conspiracy to violate the Anti-
Graft Law could no longer be proved or that the
alleged conspiracy was already expunged. The only
thing extinguished by the death of a co-conspirator
was his criminal liability. His death did not extinguish
the crime nor did it remove the basis of the charge of
conspiracy between him and private respondent.
(People v. Go, G.R. 168539, March 25, 2014).
ARREST
Q: Give at least two instances when a peace officer or
a private person may make a valid warrantless arrest.
(2017 Bar)
A: Under Section 5, Rule 113, a peace officer or a
private person may make a valid warrantless arrest in
the following instances: (POP)
a. When, in his presence, the person to be
arrested has committed, is actually
committing, or is attempting to commit an
offense;
b. When an offense has just been committed,
and he has probable cause to believe based on
personal knowledge of facts or circumstances
that the person to be arrested has committed
it; and
c. When the person to be arrested is a prisoner
who has escaped from a penal establishment
or place where he is serving final judgment or
is temporarily confined while his case is
 pending, or has escaped while being
transferred from one confinement to another.
Q: As Cicero was walking down a dark alley one
midnight, he saw an "owner-type jeepney”
approaching him. Sensing that the occupants of the
vehicle were up to no good, he darted into a corner
and ran. The occupants of the vehicle −elements from
the Western Police District −gave chase and
apprehended him. The police apprehended Cicero,
frisked him and found a sachet of 0.09 gram of shabu
tucked in his waist and a Swiss knife in his secret
pocket, and detained him thereafter. Is the arrest and
body search legal? (2010 Bar)
A: No. The arrest and the body-search were not legal.
Cicero’s act of running does not show any reasonable
ground to believe that a crime has been committed or
is about to be committed for the police officers to
apprehend him and conduct body search. Hence, the
arrest was illegal as it does not fall under any of the
circumstances for a valid warrantless arrest provided
in Section 5, Rule 113.
Q: AX swindled RY in the amount P10,000 sometime
in mid-2003. On the strength of the sworn statement
given by RY personally to SPO1 Juan Ramos
sometime in mid-2004, and without securing a
warrant, the police officer arrested AX. Forthwith the
police officer filed with the City Prosecutor of Manila
a complaint for estafa supported by RY’s sworn
statement and other documentary evidence. After due
inquest, the prosecutor filed the requisite information
with the MM RTC. No preliminary investigation was
conducted either before or after the filing of the
information and the accused at no time asked for such
an investigation. However, before arraignment, the
accused moved to quash the information on the
ground that the prosecutor suffered from a want of
authority to file the information because of his failure
to conduct a preliminary investigation before filing
the information, as required by the Rules of Court.
1. Is the warrantless arrest of AX valid?
A: No. The warrantless arrest is not valid because the
alleged offense has not just been committed. The
crime was allegedly committed one year before the
arrest. (Sec. 5(b), Rule 113)
2. Is he entitled to a preliminary investigation
before the filing of the information? Explain.
(2004 Bar)
A: Yes, he is entitled to a preliminary investigation
because he was not lawfully arrested without a
warrant (Sec. 7, Rule 112). He can move for a
reinvestigation.
Q: A was killed by B during a quarrel over a hostess
in a nightclub. Two days after the incident, and upon
complaint of the widow of A, the police arrested B
without a warrant of arrest and searched his house
without a search warrant.
1. Can the gun used by B in shooting A, which
was seized during the search of the house of
B, be admitted in evidence?
A: No. The gun seized during the search of the house
of B without a search warrant is not admissible in
evidence (Sec. 2 and 3[2], Art. III, 1987 Constitution).
Moreover, the search was not an incident to a lawful
arrest of a person under Sec. 13, Rule 126.
2. Is the arrest of B legal?
A: No. A warrantless arrest requires that the crime has
in fact just been committed and the police arresting
has personal knowledge of facts that the person to be
arrested has committed it (Sec. 5, Rule 113). Here, the
crime has not just been committed since a period of
two days had already lapsed, and the police arresting
has no such personal knowledge because he was not
present when the incident happened. (Go v. Court of
Appeals, G.R. No. 101837, February 11, 1992).
3. Under the circumstances, can B be convicted
of homicide? (1997 Bar)
A: Yes. The gun is not indispensable in the conviction
of A because the court may rely on testimonial or
other evidence.
Q: In a buy-bust operation, the police operatives
arrested the accused and seized from him a sachet of
shabu and an unlicensed firearm. The accused was
charged in two Informations, one for violation of the
“Dangerous Drug Act”, as amended, and another for
illegal possession of firearms. The accused filed an
action for recovery of the firearm in another court
against the police officers with an application for the
issuance of a writ of replevin. He alleged in his
complaint that he was a military informer who had
been issued a written authority to carry said firearm.
The police officers moved to dismiss the complaint on
the ground that the subject firearm was in custodia
legis. The court denied the motion and instead issued
the writ of replevin.
1. Was the seizure of the firearm valid?
A: Yes. The seizure of the firearm was valid because
it was seized in the course of a valid arrest in a buy
bust operation (Secs. 12 and 13, Rule 126). In such
operation, a search warrant was not necessary. (People
v. Salazar, G.R. No. 98060, January 27, 1997)
2. Was the denial of the motion to dismiss
proper? (2003 Bar)
A: No. The denial of the motion to dismiss was not
proper. The court had no authority to issue the writ of
replevin whether the firearm was in custodia legis or
not. The motion to recover the firearm should be filed
in the court where the criminal action is pending.
Q: FG was arrested without a warrant by policemen
while he was walking in a busy street. After the
preliminary investigation, he was charged with rape
and the corresponding information was filed in the
RTC. On arraignment, he pleaded not guilty. Trial on
the merits ensued. The court rendered judgment
convicting him. On appeal, FG claims that the
judgment is void because he was illegally arrested. If
you were the Solicitor General, counsel, for the
People of the Philippines, how would you refute said
claim? (2000 Bar)
A: I would assert that any objection to the illegality of
the arrest of the accused without a warrant is deemed
waived when he pleaded not guilty at the arraignment
without raising the question. It is too late to complain
about a warrantless arrest after trial is commenced
and completed and a judgment of conviction rendered
against the accused. (People v. Cabiles, G.R. No.
112035, January 16, 1998)
Q: Boy Maton, a neighborhood tough guy, was
arrested by a police officer on suspicion that he was
keeping prohibited drugs in his clutch bag. When Boy
Maton was searched immediately after the arrest, the
officer found and recovered 10 sachets of shabu
neatly tucked in the inner linings of the clutch bag. At
the time of his arrest, Boy Maton was watching a
basketball game being played in the town plaza, and
he was cheering for his favorite team. He was
subsequently charged with illegal possession of
dangerous drugs, and he entered a plea of not guilty
when he was arraigned. During the trial, Boy Maton
moved for the dismissal of the information on the
ground that the facts revealed that he had been
illegally arrested. He further moved for the
suppression of the evidence confiscated from him as
being the consequence of the illegal arrest, hence, the
fruit of the poisonous tree. The trial court, in denying
the motions of Boy Maton, explained that at the time
the motions were filed Boy Maton had already waived
the right to raise the issue of the legality of the arrest.
The trial court observed that, pursuant to the Rules of
Court, Boy Maton, as the accused, should have
assailed the validity of the arrest before entering his
plea to the information. Hence, the trial court opined
that any adverse consequence of the alleged illegal
arrest had also been equally waived. Comment on the
ruling of the trial court. (2017 Bar)
A: The ruling of the court denying the motion for
dismissal of the information on the ground of illegal
arrest is proper. Under Sec. 9, Rule 117, the accused’s
failure to file a motion to quash before plea is a
waiver of the objection to lack of personal jurisdiction
or of the objection to an illegal arrest. Here, Boy
Maton entered a plea without filing a motion to quash
on the ground of lack of personal jurisdiction. Hence,
he is deemed to have waived the ground of illegal
arrest which is subsumed under lack of personal
jurisdiction.
However, the ruling denying the motion to suppress
evidence is not correct. The Supreme Court has held
that a waiver of an illegal, warrantless arrest does not
carry with it a waiver of the inadmissibility of
evidence seized during an illegal warrantless arrest
(People v. Racho, G.R. No. 186529, August 3, 2010).
A waiver of an illegal arrest is not a waiver of an
illegal search. The Constitution provides that evidence
seized in violation of the right against illegal search is
inadmissible in evidence. Hence, the evidence was
seized was virtue of an illegal search considering that
the arrest was illegal, rendering it inadmissible in
evidence.
Q: Under Section 5, Rule 113, a warrantless arrest is
allowed when an offense has just been committed and
the peace officer has probable cause to believe, based
on his personal knowledge of facts and circumstances,
that the person to be arrested has committed it. A
policeman approaches you for advice and asks you
how he will execute a warrantless arrest against a
murderer who escaped after killing a person. The
policeman arrived two (2) hours after the killing and a
certain Max was allegedly the killer per information
given by a witness. He asks you to clarify the
following:
1. How long after the commission of the crime
can he still execute the warrantless arrest?
A: In executing a warrantless arrest under Section 5,
Rule 113, the Supreme Court held that the
requirement that an offense has just been committed
means that there must be a large measure of
immediacy between the time the offense was
committed and the time of the arrest (Pestilos
v.Generoso, G.R. No. 182601, November 10, 2014).
If there was an appreciable lapse of time between the
arrest and the commission of the crime, a warrant of
arrest must be secured. In any case, personal
knowledge by the arresting officer is an indispensable
requirement to the validity of a valid warrantless
arrest.
2. What does “personal knowledge of the facts
and circumstances that the person to be
arrested committed it” mean? (2016 Bar)
A: The phrase “personal knowledge of the facts and
circumstances that the person to be arrested
committed it” means that matters in relation to the
supposed commission of the crime were within the
actual perception, personal evaluation or observation
of the police officer at the scene of the crime.
Thus, even though the police officer has not seen
someone actually, fleeing, he could still make a
warrantless arrest if, based on his personal evaluation
of the circumstances at the scene of the crime, he
could determine the existence of probable cause that
the person sought to be arrested has committed the
crime; however, the determination of probable cause
and the gathering of facts or circumstances should be
made immediately after the commission of the crime
in order to comply with the element of immediacy.
Q: An information for murder was filed against
Rapido. The RTC judge, after personally evaluating
the prosecutor's resolution, documents and parties'
affidavits submitted by the prosecutor, found probable
cause and issued a warrant of arrest. Rapido's lawyer
examined the rollo of the case and found that it only
contained the copy of the information, the
submissions of the prosecutor and a copy of the
warrant of arrest. Immediately, Rapido's counsel filed
a motion to quash the arrest warrant for being void,
citing as grounds:
1. The judge before issuing the warrant did not
personally conduct a searching examination
of the prosecution witnesses in violation of
his client's constitutionally-mandated rights;
2. There was no prior order finding probable
cause before the judge issued the arrest
warrant.
May the warrant of arrest be quashed on the grounds
cited by Rapido's counsel? State your reason for each
ground. (2015 Bar)
A: No, the warrant of arrest may not be quashed
based on the grounds cited by Rapido’s counsel. In
the issuance of warrant of arrest, the mandate of the
Constitution is for the judge to personally determine
the existence of probable cause.
The words “personal determination,” was interpreted
by the Supreme Court in Soliven v. Makasiar (G.R.
No. 82585, November 14, 1988) as the exclusive and
personal responsibility of the issuing judge to satisfy
himself as to the existence of probable cause.
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. Thus,
personal examination of the complainant and his
witnesses is, thus, not mandatory and indispensable in
the determination of probable cause for the issuance
of a warrant of arrest. (People v. Grey, G.R. No.
10109, July 26, 2010).
ARRAIGNMENT & PLEA
Q: D was charged with theft of an article worth
P15,000.00. Upon being arraigned, he pleaded not
guilty to the offense charged. Thereafter, before trial
commenced, he asked the court to allow him to
change his plea of not guilty to a plea of guilty but
only to estafa involving P5,000.00. Can the court
allow D to change his plea? Why? (2002 Bar)
A: No, because a plea of guilty to a lesser offense
may be allowed if the lesser offense is necessarily
included in the offense charged (Sec. 2, Rule 116).
Estafa involving P5,000.00 is not necessarily included
in theft of an article worth P15,000.00.
Q: Mr. W was charged with raping his neighbor's
seventeen (17)-year old daughter, AAA. When he was
arraigned, Mr. W expressed his desire to plead
"guilty," provided that his sentence be substantially
reduced. Both AAA's mother and the prosecutor were
amenable to the proposal. Consequently, the judge
entered a plea of guilty for Mr. W and sentenced him
to serve a reduced straight penalty of only ten (10)
years of imprisonment, as agreed upon.
1. Did the judge properly enter a plea of guilty
for Mr. W? Explain.
A: No. The act of Mr. W is a conditional plea,
meaning, subject to the condition that he be punished
to a certain penalty. In that case, the trial court should
have vacated such a plea and entered a plea of not
guilty for a conditional plea of guilty, or one subject
to the proviso that a certain penalty be imposed upon
him. A conditional plea of guilty is equivalent to a
plea of not guilty and would, therefore, require a full-
blown trial before judgment may be rendered.
ALTERNATIVE ANSWER:
No. Rape is considered as a capital offense being
punishable by reclusion perpetua. Thus, under Section
3, Rule 166 of the Rules of Court, the Judge is duty
bound: (1) to conduct a searching inquiry into the
voluntariness and full comprehension of the
consequences of the plea of guilt; (2) to require the
prosecution to still prove the guilt of the accused and
the precise degree of his culpability; and (3) to inquire
whether or not the accused wishes to present evidence
in his behalf and allow him to do so if he desires.
2. Assuming that Mr. W was once more charged
with the crime of Rape committed against
AAA based on the same incident, may Mr. W
validly invoke the defense of double jeopardy
through a motion to quash and will such
motion prosper? Explain. (2019 Bar)
A: No. In effect, the judgment rendered by the trial
court against Mr. W which was based on a void plea
bargaining is also void ab initio and cannot be
considered to have attained finality for the simple
reason that a void judgment has no legality from its
inception. Thus, since the judgment of conviction
rendered against Mr. W was void, double jeopardy
will not lie.
MOTION TO QUASH
Grounds. — The accused may move to quash the
complaint or information on any of the following
grounds:
a) That the facts charged do not constitute an
offense;
b) That the court trying the case has no
jurisdiction over the offense charged;
c) That the court trying the case has no
jurisdiction over the person of the accused;
 d) That the officer who filed the information
had no authority to do so;
e) That it does not conform substantially to the
prescribed form;
f) That more than one offense is charged
except when a single punishment for
various offenses is prescribed by law;
g) That the criminal action or liability has been
extinguished;
h) That it contains averments which, if true,
would constitute a legal excuse or
justification; and
i) That the accused has been previously
convicted or acquitted of the offense
charged, or the case against him was
dismissed or otherwise terminated without
his express consent.
Q: A criminal information is filed in court charging
Anselmo with homicide. Anselmo files a motion to
quash the information on the ground that no
preliminary investigation was conducted. Will the
motion be granted? Why or why not? (2009 Bar)
A: No, the motion to quash will not be granted. The
lack of preliminary investigation is not a ground for a
motion to quash. Preliminary investigation is only a
statutory right and can be waived. The accused should
instead file a motion for reinvestigation within five
(5) days after he learn of the filing in Court of the
case against him. (Sec. 6, Rule 112, as amended).
Q: Pedrito and Tomas, Mayor and Treasurer,
respectively, of the Municipality of San Miguel,
Leyte, are charged before the Sandiganbayan for
violation of Section 3 (e), Republic Act No. 3019
(Anti-Graft and Corrupt Practices Act). The
information alleges, among others, that the two
conspired in the purchase of several units of computer
through personal canvass instead of a public bidding,
causing undue injury to the municipality. Before
arraignment, the accused moved for reinvestigation of
the charge, which the court granted. After
reinvestigation, the Office of the Special Prosecutor
filed an amended information duly signed and
approved by the Special Prosecutor, alleging the same
delictual facts, but with an additional allegation that
the accused gave unwarranted benefits to SB
Enterprises owned by Samuel. Samuel was also
indicted under the amended information. Before
Samuel was arraigned, he moved to quash the
amended information on the ground that the officer
who filed the same had no authority to do so. Resolve
the motion to quash with reasons. (2009 Bar)
A: The motion to quash filed Samuel should be
granted. Under R.A. No. 6770, also known as the
Ombudsman Act of 1989, the Special Prosecutor has
the power and authority, under the supervision and
control of the Ombudsman, to conduct preliminary
investigation and prosecute criminal cases before the
Sandiganbayan and perform such other duties
assigned to him by the Ombudsman (Calingin v.
Desierto, G.R. Nos. 145743-89, August 10, 2007).
Absent a clear delegation of authority from the
Ombudsman to the Special Prosecutor to file the
information, the latter would have no authority to file
the same. The Special Prosecutor cannot be
considered an alter ego of the Ombudsman as the
doctrine of qualified political agency does not apply
to the Office of the Ombudsman. (Perez v.
Sandiganbayan, G.R. No. 166062, September 26,
2006)
Q: BC is charged with illegal possession of firearms
under an Information signed by a Provincial
Prosecutor. After arraignment but before pre-trial, BC
found out that the Provincial Prosecutor had no
authority to sign the information as it was the City
Prosecutor who has such authority. During the pre-
trial, BC moves that the case against him be dismissed
on the ground that the Information is defective
because the officer signing it lacked the authority to
do so. The Provincial Prosecutor opposes the motion
on the ground of estoppel as BC did not move to
quash the Information before arraignment. If you are
counsel for BC, what is your argument to refute the
opposition of the Provincial Prosecutor? (2000 Bar)
A: I would argue that since the Provincial Prosecutor
had no authority to file the information, the court did
not acquire jurisdiction over the person of the accused
and over the subject matter of the offense charged
(Cudia v. Court of Appeals, G.R. No. 110315, January
16, 1998). Hence, this ground is not waived if not
raised in a motion to quash and could be raised at the
pre-trial. (Sec. 9, Rule 117)
Note: In Gomez v. People, G.R. No. 216824,
November 10, 2020, the Supreme Court held that the
lack of signature and approval of the provincial, city
or chief state prosecutor on the face of the
Information shall not divest the court of jurisdiction
over the person of the accused and the subject matter
in a criminal action. It is sufficient for the validity of
the Information or Complaint, as the case may be, that
the Resolution of the investigating prosecutor
recommending for the filing of the same in court
bears the imprimatur of the provincial, city or chief
state prosecutor whose approval is required under
Section 4, Rule 112 of the Rules of Court.
Q: Rodolfo is charged with possession of unlicensed
firearms in an Information filed in the RTC. It was
alleged therein that Rodolfo was in possession of two
unlicensed firearms: a .45 calibre and a .32 calibre.
Under Republic Act No. 8294, possession of an
unlicensed .45 calibre gun is punishable by prision
mayor in its minimum period and a fine of
P30,000.00, while possession of an unlicensed .32
calibre gun is punishable by prision correccional in its
maximum period and a fine of not less than
P15,000.00. As counsel of the accused, you intend to
file a motion to quash the Information. What ground
or grounds should you invoke? Explain. (2005 Bar)
A: The ground for the motion to quash is that more
than one offense is charged in the information (Sec.
3(f), Rule 117).
Likewise, the RTC has no jurisdiction over the second
offense of possession of an unlicensed .32 calibre gun,
punishable by prison correccional in its maximum
period and a fine of not less than P15,000.00. It is the
MTC that has exclusive and original jurisdiction over
all offenses punishable by imprisonment not
exceeding six year. (B.P. Blg. 129, as amended by
R.A. No. 7691).
Q: If the Information is not accompanied by a
certification that a preliminary investigation has been
conducted. Is the Information void? (1998 Bar)
A: No. The certification which is provided in Sec. 4,
Rule 112, Rules of Criminal Procedure, is not an
indispensable part of the information. (People v.
Lapura, G.R. No. 94494, March 15, 1996)
Q: The Information against Roger Alindogan for the
crime of acts of lasciviousness under Art. 336 of the
Revised Penal Code avers:
“That on or about 10:30 o’ clock in the evening of
February 1, 2010 at Barangay Matalaba, Imus, Cavite
and within the jurisdiction of this Honorable Court,
the above-named accused, with lewd and unchaste
design, through force and intimidation, did then and
there, wilfully, unlawfully and feloniously commit
sexual abuse on his daughter, Rose Domingo, a minor
of 11 years old, either by raping her or committing
acts of lasciviousness on her, against her will and
consent to her damage and prejudice.
ACTS CONTRARY TO LAW.”
The accused wants to have the case dismissed because
he believes that the charge is confusing and the
information is defective. What ground or grounds can
he raise in moving for the quashal of the information?
Explain. (2016 Bar)
A: The accused may move to quash the information
based on any of the following grounds:
a) That the facts charged do not constitute an
offense;
b) That it does not conform substantially to the
prescribed form; and
c) That more that one offense is charged except
when a single punishment for various
offenses is prescribed by law (Sec. 3, Rule
117).
In People v. Dela Cruz (G.R. Nos. 135554-56, June
21, 2002) the Supreme Court ruled that the phrase “by
either raping her or committing acts of
lasciviousness” does not constitute an offense since it
does not cite which among the numerous sections or
subsections of R.A. No. 7610 has been violated by
accused-appellant. Moreover, it does not state the acts
and omissions constituting the offense, or any special
or aggravating circumstances attending the same, as
required under the rules of criminal procedure.
DOUBLE JEOPARDY
Requisites:
1. A valid indictment
2. Before a court of competent jurisdiction
3. The arraignment of the accused
4. A valid plea entered by him
5. The acquittal or conviction of the accused, or
the dismissal or termination of the case
against him without his express consent.
Q: SPO1 CNC filed with the MTC in Quezon City
(MeTC-QC) a sworn written statement duly
subscribed by him, charging RGR (an actual resident
of Cebu City) with the offense of slight physical
injuries allegedly inflicted on SPS (an actual resident
of Quezon City). The judge of the branch to which the
case was raffled thereupon issued an order declaring
that the case shall be governed by the Rule on
Summary Procedure in Criminal cases. Soon
thereafter, the Judge ordered the dismissal of the case
for the reason that it was not commenced by
information, as required by said Rule. Sometime later,
based on the same facts giving rise to the slight
physical injuries case, the City Prosecutor filed with
the same MeTC-QC an information for attempted
homicide against the same RGR. In due time, before
arraignment, RGR moved to quash the information on
the ground of double jeopardy and after due hearing,
the Judge granted his motion.
1. Was the dismissal of the complaint for slight
physical injuries proper?
A: Yes, the dismissal of the complaint for slight
physical injuries is proper because in Metropolitan
Manila and in chartered cities, the case has to be
commenced only by information. (Sec. 11, Revised
Rule on Summary Procedure)
2. Was the grant of the motion to quash the
attempted homicide information correct?
(2004 Bar)
A: No, the grant of the motion to quash the attempted
homicide information on the ground of double
jeopardy was not correct, because there was no valid
prosecution for slight physical injuries.
Q: D was charged with slight physical injuries in the
MTC. He pleaded not guilty and went to trial. After
the prosecution had presented its evidence, the trial
court set the continuation of the hearing on another
date. On the date scheduled for hearing, the
prosecutor failed to appear, whereupon the court, on
motion of D, dismissed the case. A few minutes later,
the prosecutor arrived and opposed the dismissal of
the case. The court reconsidered its order and directed
D to present his evidence. Before the next date of trial
came, however, D moved that the last order be set
aside on the ground that the reinstatement of the case
had placed him twice in jeopardy.
Acceding to this motion, the court again dismissed the
case. The prosecutor then filed an Information in the
RTC, charging D with direct assault based on the
same facts alleged in the information for slight
physical injuries but with the added allegation that D
inflicted the injuries out of resentment for what the
complainant had done in the performance of his duties
as chairman of the board of election inspectors. D
moved to quash the second information on the ground
that its filing had placed him in double jeopardy. How
should D’s motion to quash be resolved? (2002 Bar)
A: D’s motion to quash should be granted on the
ground of double jeopardy because the first offense
charged is necessarily included in the second offense
charged. (Draculan v. Donato, G.R. No. L- 44079,
December 19, 1985)
Q: For the multiple stab wounds sustained by the
victim, Noel was charged with frustrated homicide in
the RTC. Upon arraignment, he entered a plea of
guilty to said crime. Neither the court nor the
prosecution was aware that the victim had died two
days earlier on account of his stab wounds. Because
of his guilty plea, Noel was convicted of frustrated
homicide and meted the corresponding penalty. When
the prosecution learned of the victim’s death, it filed
within 15 days therefrom a motion to amend the
information to upgrade the charge from frustrated
homicide to consummated homicide. Noel opposed
the motion claiming that the admission of the
amended information would place him in double
jeopardy. Resolve the motion with reasons. (2005
Bar)
A: The amended information to consummated
homicide from frustrated homicide does not place the
accused in double jeopardy. As provided in the second
paragraph of Sec. 7, Rule 117, the conviction of the
accused shall not be a bar to another prosecution for
an offense which necessarily includes the offense
charged in the former complaint or information when:
a) the graver offense developed due to supervening
facts arising from the same act or omission
constituting the former charge; or
b) the facts constituting the graver charge became
known or were discovered only after a plea was
entered in the former complain or information.
Here, when the plea to frustrated homicide was made,
neither the court nor the prosecution was aware that
the victim had died two days earlier on account of his
stab wounds.
Q: McJolly is a trouble-maker of sorts, always getting
into brushes with the law. In one incident, he drove
his Humvee recklessly, hitting a pedicab which sent
its driver and passengers in different directions. The
pedicab driver died, while two (2) of the passenger
suffered slight physical injuries. Two (2) Informations
were then filed against McJolly. One, for Reckless
Imprudence Resulting in Homicide and Damage to
Property, and two, for Reckless Imprudence Resulting
in Slight Physical Injures.
The latter case was scheduled for arraignment earlier,
on which occasion McJolly immediately pleaded
guilty. He was meted out the penalty of public
censure. A month later, the case for reckless
imprudence resulting on homicide was also set for
arraignment. Instead of pleading, McJolly interposed
the defense of double jeopardy. Resolve. (2014 Bar)
A: McJolly correctly interposed the defense of
double jeopardy. Reckless imprudence under Article
365 is a quasi-offense by itself and not merely a
means to commit other crimes, such that conviction or
acquittal of such quasi-offense already bars
subsequent prosecution for the same quasi
offense, .regardless of its various resulting acts. (Ivler
v. Modesto-San Pedro, G.R. No. 172716, November
17, 2010)
Q: Juancho entered a plea of guilty when he was
arraigned under an information for homicide. To
determine the penalty to be imposed, the trial court
allowed Juancho to present evidence proving any
mitigating circumstance in his favor. Juancho was
able to establish complete self- defense. Convinced by
the evidence adduced by Juancho, the trial court
rendered a verdict of acquittal. May the Prosecution
assail the acquittal without infringing the
constitutional guarantee against double jeopardy in
favor of Juancho? Explain your answer. (2017 Bar)
A: Yes, the Prosecution may assail the acquittal
without infringing upon the constitutional guarantee
against double jeopardy.
Under the Rules of Criminal Procedure, a requirement
for a first jeopardy to attach is that there must have
been a valid plea by the accused. Said rules also
provide that when the accused pleads guilty but
presents exculpatory evidence, his plea shall be
deemed withdrawn and a plea of not guilty shall be
entered for him. Here Juancho’s plea of guilty was
deemed withdrawn when he presented exculpatory
evidence to the effect that he acted in self-defense.
Hence his plea of guilty was deemed withdrawn and a
plea of not guilty should have been entered for him by
the court, which however was not done.
Since there was no standing plea, a first jeopardy did
not attach and thus the Prosecution may assail the
acquittal without infringing upon Juancho’s right
against double jeopardy.
Provisional dismissal
Q: In a prosecution for robbery against D, the
prosecutor moved for the postponement of the first
scheduled hearing on the ground that he had lost his
records of the case. The court granted the motion but,
when the new date of trial arrived, the prosecutor,
alleging that he could not locate his witnesses, moved
for the dismissal of the case. If D’s counsel does not
object, may the court grant the motion of the
prosecutor? Why? (2002 Bar
A: No, because a case cannot be provisionally
dismissed except upon the express consent of the
accused and with notice to the offended party. (Sec. 8,
Rule 117)
SEARCH & SEIZURES
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.
Personal property to be seized: (S0-SE-UI)
(a) Subject of the offense;
(b) Stolen or embezzled and other proceeds, or
fruits of the offense; or
(c) Used or intended to be used as the means of
committing an offense.
Search 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.
Q: A PDEA asset/informant tipped the PDEA Director
Shabunot that a shabu laboratory was operating in a
house at Sta. Cruz, Laguna, rented by two (2) Chinese
nationals, Ho Pia and Sio Pao. PDEA Director
Shabunot wants to apply for a search warrant, but he
is worried that if he applies for a search warrant in
any Laguna court, their plan might leak out.
1. Where can he file an application for search
warrant?
A: PDEA Director may file an application for search
warrant in any court within the judicial region where
the crime was committed. (Sec. 2[b], Rule 126)
Section 2. Court where application for search
warrant shall be filed. — An application for search
warrant shall be filed with the following:
a) Any court within whose territorial jurisdiction a
crime was committed.
b) For compelling reasons stated in the application,
any court within the judicial region where the crime
was committed if the place of the commission of the
crime is known, or any court within the judicial
region where the warrant shall be enforced.
However, if the criminal action has already been filed,
the application shall only be made in the court where
the criminal action is pending.
2. What documents should he prepare in his
application for search warrant?
A: He should prepare a petition for issuance of a
search warrant and attach therein sworn statements
and affidavits.
3. Describe the procedure that should be taken by
the judge on the application.
A: The judge must, before issuing the warrant,
examine personally in the form of searching questions
and answers, in writing and 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 (Sec. 5, Rule 126).
If the judge is satisfied of the existence of facts upon
which the application is based or that there is probable
cause to believe that they exist, he shall issue the
warrant, which must be substantially in the form
prescribed by the Rules. (Sec. 6, Rule 126).
4. Suppose the judge issues the search warrant
worded in this way:
TO ANY PEACE OFFICER
Greetings:
It appearing to the satisfaction of the undersigned
after examining under oath PDEA Director Shabunot
that there is probable cause to believe that violations
of Section 18 and 16 of R.A. 9165 have been
committed and that there are good and sufficient
reasons to believe that Ho Pia and Sio Pao have in
their possession or control, in a two (2) door
apartment with an iron gate located at Jupiter St.,
Sta. Cruz, Laguna, undetermined amount of "shabu"
and drug manufacturing implements and
paraphernalia which should be seized and brought to
the undersigned.
You are hereby commanded to make an immediate
search, at any time in the day or night, of the premises
above described and forthwith seize and take
possession of the abovementioned personal property,
and bring said property to the undersigned to be dealt
with as the law directs.
Witness my hand this 1st day of March, 2012.
(signed) Judge XYZ
Cite/enumerate the defects, if any, of the search
warrant.
A:
a. The search warrant failed to particularly describe
the place to be searched and the things to be seized
(Sec. 4, Rule 126).
b. The search warrant commanded the immediate
search, at any time in the day or night. The general
rule is that a search warrant must be served in the
daytime, unless the affidavit asserts that the property
is on the person or in the place ordered to be searched,
in which case a direction may be inserted that it be
served at any time of the day or night.
5. Suppose the search warrant was served on March
15, 2012 and the search yielded the described
contraband and a case was filed against the
accused in RTC, Sta. Cruz, Laguna and you are
the lawyer of Sio Pao and Ho Pia, what will you
do?
A: If I were the lawyer of Sio Pao and Ho Pia, I
would file a Motion to Quash the search warrant for
having been served beyond its period of validity (Sec.
14, Rule 126).
A search warrant shall be valid only for ten days from
its date. Thereafter, it shall be void. (Sec. 10, Rule
126)
6. Suppose an unlicensed armalite was found in
plain view by the searchers and the warrant was
ordered quashed, should the court order the
return of the same to the Chinese nationals?
(2012 Bar)
A: No, the Court should not order the return of the
unlicensed armalite because it is contraband or illegal
per se. The possession of an unlicensed armalite
found in plain view is mala prohibita. The same be
kept in custodia legis.
Particularity of place to be searched and things to
be seized
Q: The search warrant authorized the seizure of
"undetermined quantity of shabu." During the service
of the search warrant, the raiding team also recovered
a kilo of dried marijuana leaves wrapped in newsprint.
The accused moved to suppress the marijuana leaves
as evidence for the violation of Section 11 of the
Comprehensive Dangerous Drugs Act of 2002 since
they were not covered by the search warrant. The
State justified the seizure of the marijuana leaves
under the "plain view" doctrine. There was no
indication of whether the marijuana leaves were
discovered and seized before or after the seizure of
the shabu. If you are the judge, how would you rule
on the motion to suppress? (2008 Bar)
A: The motion to suppress filed by the accused should
be granted. The search warrant violates the
constitutional and statutory requirement that it should
particularly describe the person or things to be seized.
The “plain view” doctrine cannot be invoked because
the marijuana leaves were wrapped in newsprint.
Besides the marijuana leaves are not the subject of the
search warrant.
Q: Police operatives of Western Police District,
Philippine National Police, applied for a search
warrant in the RTC for the search of the house of Juan
Santos and the seizure of an undetermined amount of
shabu. The team arrived at the house of Santos but
failed to find him there. Instead, the team found
Roberto Co. The team conducted a search in the house
of Santos in the presence of Roberto Co and barangay
official and found ten (10) grams of shabu. Roberto
Co was charged in court with illegal possession of ten
grams of shabu. Before his arraignment, Roberto Co
filed a motion to quash the warrant on the following
grounds (a) it was not the accused named in the
search warrant and (b) the warrant does not prescribe
the article to be seized with sufficient particularity.
Resolve the motion with reasons. (2005 Bar)
A: The motion to quash should be denied. The name
of the person in the search warrant is not important. It
is not even necessary that a particular person be
implicated (Mantaring v. Roman, A.M. No. RTJ-93-
904, February 28, 1996), so long as the search is
conducted in the place where the search warrant will
be served. Moreover, describing the shabu in an
undetermined amount is sufficiently particular.
(People v. Tee, G.R. Nos. 140546-47, January 20,
2003).
Q: A search warrant was issued for the purpose of
looking for unlicensed firearms in the house of Ass-
asin, a notorious gun for hire. When the police served
the warrant, they also sought the assistance of
barangay tanods who were assigned to look at other
portions of the premises around the house. In a nipa
hut thirty (30) meters away from the house of Ass-
asin, a Barangay tanod came upon a kilo of marijuana
that was wrapped in newsprint. He took it and this
was later used by the authorities to charge Ass-asin
with illegal possession of marijuana. Ass-asin
objected to the introduction of such evidence claiming
that it was illegally seized. Is the objection of Ass-asin
valid? (2014 Bar)
A: The objection is valid. The search warrant
specifically designates or describes the house as the
place to be searched. Incidentally, the marijuana was
seized by the Barangay Tanods thirty (30) meters
away from the house of the accused. Since the
confiscated items were found in a place other than the
one described in the search warrant, it can be
considered as fruits of an invalid warrantless search,
the presentation of which as an evidence is a violation
of petitioner’s constitutional guaranty against
unreasonable searches and seizure.
Besides, the search is also illegal because the
marijuana confiscated in the nipa hut was wrapped in
a newsprint. Therefore, the same cannot be considered
validly seized in plain view.
Remedies from unlawful search and seizure
Q: Hercules was walking near a police station when a
police officer signalled for him to approach. As soon
as Hercules came near, the police officer frisked him
but the latter found no contraband. The police officer
told Hercules to get inside the police station. Inside
the police station, Hercules asked the police officer,
"Sir, may problema po ba?" Instead of replying, the
police officer locked up Hercules inside the police
station jail.
1. If Hercules filed with the Ombudsman a
complaint for warrantless search, as counsel
for the police officer, what defense will you
raise for the dismissal of the complaint?
A: As counsel of policeman, I will raise the defense of
presumption of regularity in the performance of duty.
I can also raise the defense that the police officer has
the duty to search Hercules under the “Stop-and-
Frisk” rule. A stop-and-frisk situation must precede a
warrantless arrest, be limited to the person’s outer
clothing, and should be grounded upon a genuine
reason, in the light of the police officers experience
and surrounding conditions, to warrant the belief that
the person detained has weapons concealed about
him.
The “stop-and-frisk” search should be used “when
dealing with rapidly unfolding and potentially
criminal situation in the city streets where unarguably
there is no time to secure a search warrant.”
“Stop-and-frisk” searches (sometimes referred to as
Terry searches) are necessary for law enforcement,
that is, law enforcers should be given the legal arsenal
to prevent the commission of the offenses. This
should be balanced, however, with the need to protect
the privacy of citizens in accordance with Article III,
Section 2 of the Constitution.
2. If Hercules opts to file a civil action against
the police officer, will he have a cause of
action? (2015 Bar)
A: Yes. Hercules has a cause of action to file civil
action against the police officer under Article 32(4) in
relation to Article 2219(6) and (10) of the New Civil
Code, which provides that a police officer may be
liable for damages when the right to be secure in
one’s person, house, papers and effects against
unreasonable searches and seizures is impaired. The
indemnity includes moral damages. Exemplary
damages may also be adjudicated.