criminal procedure handouts final)

8/6/2019 Criminal Procedure Handouts Final)

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ESSENTIAL CONCEPTS IN CRIMINAL PROCEDURE(Part 1)

JURISDICTION

1. The jurisdiction of the Municipal Trial Courts was increased from theoriginal penalty of not exceeding six (6) months imprisonment and/or P200fine, to not exceeding four (4) years and two (2) months and/or a fine ofP4,000 in BP 129, and further increased to not exceeding six (6) yearsirrespective of the fine in RA 7691.

Hence, although originally only minor offenses were not subject topreliminary investigation (People vs Abejuela, 38 SCRA 324), by increasingthe jurisdiction of the Municipal Courts, more serious offenses were also NOTmade subject to preliminary investigation.

INSTITUTION OF A CRIMINAL ACTION (RULE 110)

1. The institution of a criminal action depends upon whether or not theoffense is one which requires a preliminary investigation (Sec. 1, Rule 110,Rules of Court).

Where a preliminary investigation is required, a criminal action isinstituted by filing the complaint with the proper officer for the purpose ofconducting the requisite preliminary investigation (Sec. 1, Rule 110, Rules ofCourt).

Where a preliminary investigation is not required, a criminal action isinstituted in either of two ways:

(a) by filing the complaint or information directly with theMunicipal Trial Court or Municipal Circuit Trial Court, or

(b) by filing the complaint with the office of the prosecutor (Sec.1, Rule 110, Rules of Court).

2. A query that is often involved at this juncture is why the rule makesreference only to the Municipal Trial Court and the Municipal Circuit Trial asthe courts in which offenses may be prosecuted by the direct filing of the

information or complaint. The Regional Trial Court and the Metropolitan TrialCourt are not mentioned in the rule.

The reason is obvious. There is no direct filing of an information orcomplaint with the Regional Trial Court because its jurisdiction coversoffenses which require preliminary investigation. A preliminary investigationis to be conducted for offenses where the penalty prescribed by law is atleast four (4) years, two (2) months and one (1) day (Sec. 1, Rule 112, Rulesof Court). The Regional Trial Court has jurisdiction over an offense punishablewith imprisonment of more than six (6) years, way above the minimumpenalty for an offense that requires a preliminary investigation. On the other

hand the Municipal Trial Court has exclusive jurisdiction over offensespunishable with imprisonment not exceeding six (6) years ( Sec. 32[2],Judiciary Reorganization Act of 1980 [BP 129]).

There is likewise no direct filing with the Metropolitan Trial Courtbecause in Manila, including other chartered cities, the complaint, as a rule,shall be filed with the office of the prosecutor, unless otherwise provided by

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their charters (Sec. 1, Rule 110, Rules of Court).The rule is that in charteredcities the complaint shall be filed with the prosecutor but in case of a conflictbetween a city charter and a provision of the Rules of Court, the former,being substantive law, shall prevail.

Effect of the institution of the criminal action on period ofprescription

The institution of the criminal action shall interrupt the period ofprescription of the offense charged. The exception is when the contrary is soprovided by special laws (Sec. 1, Rule 110, Rules of Court).

Meaning of complaint

A complaint is a sworn written statement charging a person with anoffense, subscribed by the offended party, any peace officer, or other public

officer, charged with the enforcement of the law violated (Sec. 3, Rule 110,Rules of Court). The complaint is not filed in the name of a private person,natural or juridical but in the name of the People of the Philippines. It is filedagainst all persons who appear to be responsible for the offense involved(Sec. 2, Rule 110, Rules of Court).

Meaning of information

An information is an accusation in writing charging a person with anoffense subscribed by the prosecutor and filed with the court (Sec. 4, Rule110, Rules of Court). Like a complaint, an information is filed in the name of

the People of the Philippines against all persons who appear to beresponsible for the offense involved (Sec. 2, Rule 110, Rules of Court).

Distinction between a complaint and an information

1. A complaint must be under oath. By the clear terms of Sec. 3 ofRule 110, it is a sworn written statement.

An information requires no oath. Sec. 4 of Rule 110 merely requiresthat it be an accusation in writing. This is because the prosecutor filing theinformation is acting under the oath of his office (Estudillo vs. Baloma, 426

SCRA 83).

2. A complaint or information is subscribed by (a) the offendedparty, (b) any peace officer, (c) or other public officer charged with theenforcement of the law violated (Sec. 3, Rule 110, Rules of Court).

An information is subscribed by the prosecutor (Sec. 4, Rule 110, Rulesof Court).

Who must prosecute a criminal action

1. A criminal action is prosecuted under the direction and control of theprosecutor. This is the general rule and this applies to a criminal actioncommenced either by a complaint or an information (Sec. 5, Rule 110, Rulesof Court). Even if there is a private prosecutor, the criminal action is stillprosecuted under the direction and control of the public prosecutor.

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2. The appointment of a private prosecutor is done by the offended partyand is the mode by which the latter intervenes in the prosecution of theoffense. This intervention is however, only allowed where the civil action forthe recovery of the civil liability is instituted with the criminal action pursuantto Rule 111 (Sec. 16, Rule 110, Rules of Court). Hence, the offended party

may not intervene in the prosecution of the offense through a privateprosecutor if the offended party (a) waives the civil action, (b) reserves theright to institute it separately, or (c) institutes the civil action prior to thecriminal action.

When a private prosecutor may prosecute a case even in theabsence of the public prosecutor

1. A private prosecutor may prosecute the criminal action up to the endof the trial even in the absence of the public prosecutor if he is authorized todo so in writing. This written authorization shall be given by either the Chief

of the Prosecution Office or the Regional State Prosecutor. The writtenauthorization in order to be given effect must however, be approved by thecourt (Sec. 5, Rule 110, Rules of Court; A.M. No. 02-2-07-SC, April 10, 2002effective May 1, 2002).

2. The written authorization to the private prosecutor shall be givenbecause of either of the following reasons: (a) the public prosecutor has aheavy work load or, (b) there is a lack of public prosecutors (Sec. 5, Rule110, Rules of Court; A.M. No. 02-2-07-SC, April 10, 2002 effective May 1,2002).

Prosecution of a criminal action in the Municipal Trial Court orMunicipal circuit Trial Court

A criminal action in a Municipal Trial Court or in a Municipal Circuit TrialCourt shall be prosecuted under the direction and control of the prosecutor(Sec. 5, Rule 110, Rules of Court). However, when the prosecutor assigned isnot available, the action may be prosecuted by (a) the offended party, (b)any peace officer, (c) or public officer charged with the enforcement of thelaw violated (OCA Circular No. 39-2002, August 21, 2002).

Prosecution of adultery and concubinage

1. The prosecution of adultery and concubinage is done upon a complaintfiled by the offended spouse. The rule stresses that the action cannot beinstituted against one party alone. It must be instituted against both guiltyparties, unless one of them is no longer alive (Sec. 5, Rule 110, Rules ofCourt).

2. The offense of adultery and concubinage may not be instituted if it isshown that the offended party has consented to the offense or has pardonedthe offenders (sec. 5, Rule 110, Rules of Court). Since the rule does not

distinguish, the consent or pardon may be either expressed or implied.

Prosecution of seduction, abduction and acts of lasciviousness

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1. The offenses of seduction, abduction and acts of lasciviousness shallnot be prosecuted except upon a complaint filed by the offended party or herparents, grandparents or guardian, nor, in any case, if the offender has beenexpressly pardoned by them (Sec. 5. Rule 110, Rules of Court). Note that thepardon must be expressly made. It is clear that an implied pardon is not

contemplated under Sec. 5 of Rule 110.

2. If the offended party dies or becomes incapacitated before she can filethe complaint, and she has no known parents, grandparents or guardian, theState shall initiate the criminal action in her behalf (Sec. 5, Rule 110, Rulesof Court).

3. Also, under Sec. 5 of Rule 110, the offended party, even if a minor, hasthe right to initiate the prosecution of the offense, independently of herparents, grandparents or guardian except if she is incompetent or incapableof doing do (Sec. 5, Rule 110, Rules of Court).

Where the minor fails to initiate the prosecution of the offense, thecomplaint may be filed by the minors parents, grandparents or guardian inthe successive order mentioned. This right to file the complaint shall beexclusive of all other persons except with respect to the state under theconditions in the immediately preceding paragraph (Sec. 5, Rule 110, Rulesof Court).

Note: The crime of rape is no longer a private crime. Hence, it no longerrequires the filing of a complaint by the offended party or her parents,grandparents or guardian (Sec. 5 of Rule 110, 3rd paragraph). Under Sec. 2

of the Anti-Rape Law of 1997 (RA 8353) the crime of rape is now classified asa crime against persons.

Effect of R.A. 7610 (Special Protection of Children Against ChildAbuse, Exploitation and Discrimination Act)

Under Sec. 27 of R.A. 7610, complaints on cases of unlawful actsmentioned in the law committed against children, may be filed by thefollowing:

(a)offended party;

(b)parents or guardians;(c) ascendant or collateral relative within the third degree of

consanguinity;(d)officer, social worker or representative of a licensed child-caring

institution;(e)officer or social worker of the Department of Social Welfare and

Development;(f) barangay chairman; or(g)at least three (3) concerned, responsible citizens where the

violation occurred.

Prosecution of defamation

1. The defamation under this rule (Sec. 5, Rule 110) consists in theimputation of the offenses of adultery, concubinage, seduction, abductionand acts of lasciviousness (Sec.5, Rule 110, Rules of Court).

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2. The criminal action for defamation under the rule shall be at theinstance of the offended party only and upon a complaint filed by saidoffended party i.e., only the offended party can file the complaint (Sec. 5,Rule 110, Rules of Court).

Prosecution for violation of special laws

Where the offense is a violation of a special law, the same shall beprosecuted pursuant to the provisions of said law (Sec. 5, Rule 110, Rules ofCourt).

When a complaint or an information is deemed sufficient

A complaint or an information is deemed sufficient if it contains thefollowing:

(a) The name of the accused; if the offense is committed by morethan one person, all of them shall be included in the complaint orinformation;

(b) The designation of the offense given by statute;(c) The acts or missions complained of as constituting the offense;(d) The name of the offended party;(e) The approximate date of the commission of the offense; and(f) The place where the offense was committed (Sec. 6, Rule 110,

Rules of Court).

How to state the name of the accused

Sec. 7 of Rule 110 establishes the following rules in designating thename of the accused:

(a) The complaint or information must state the name and surnameof the accused or any appellation or nickname by which he hasbeen known is known.

(b) If his name cannot be ascertained, he must be described under afictitious name. A description of the accused under a fictitiousname must be accompanied by a statement that his true name isunknown.

(c) If later his true name is disclosed by him or becomes known insome other manner, his true name shall be inserted in thecomplaint or information and in the records of the case.

How to state the name of the offended party who is a natural person

The complaint or information must state the name and surname of theoffended party or any appellation or nickname by which such person hasbeen or is known. However, if there is no better way of identifying him, hemust be described under a fictitious name. If later on, the true name of the

offended party is disclosed or ascertained, the court must cause such truename to be inserted (Sec. 12, Rule 110, Rules of Court).

How to state the name of the offended party which is a juridicalperson

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Where a criminal action shall be instituted and tried

As a rule, the criminal action shall be instituted and tried in the court ofthe municipality or territory (a) where the offense was committed, or (b)where any of its essential ingredients occurred. This rule is however, subject

to existing laws (Sec. 15(a), Rule 110, Rules of Court).

Rule where offense is committed in a train, aircraft or vehicle

Where an offense is committed in a train, aircraft, or vehicle, whetherpublic or private, the criminal action shall be instituted and tried in the courtof any municipality or territory where such train, aircraft, or other vehiclepassed during its trip, including the place of its departure and arrival. Notethat this rule applies when the offense is committed in the course of the tripof the train, aircraft or vehicle (Sec. 15(b), Rule 110, Rules of Court).

Rule where offense is committed on board a vessel

Where an offense is committed on board a vessel, the criminal actionshall be instituted and tried in (a) the court of the first port of entry, or (b)the municipality or territory where the vessel passed during its voyage. Thisrule applies when the offense is committed during the voyage of the vesseland is subject to the generally accepted principles of international law (Sec.15(c), Rule 110, Rules of Court).

Rule when the offense is covered by Art. 2 of the Revised PenalCode

Crimes committed outside the Philippines but punishable under Art. Ofthe Revised Penal Code shall be cognizable by the court where the criminalaction is first filed (Sec. 15(d), Rule 110, Rules of Court).

How to state the place of the commission of the offense

The statement of the place of commission of an offense is sufficient if itcan be understood from the allegations of the complaint or information thatthe offense was committed or some of its essential ingredients occurred atsome place within the jurisdiction of the court (Sec. 10, Rule 110, Rules of

Court). Where the particular place where the offense was committed ishowever, an essential ingredient of the offense or is necessary for itsidentification, the description of the place of commission of the offense mustbe specific (Sec. 10, Rule 110, Rules of Court).

How to state the date of the commission of the offense

1. Sec. 11 of Rule 110 establishes the general rule that it is not necessaryto state the precise date the offense was committed because the offensemay be alleged to have been committed on a date as near as possible to theactual date of its commission.

2. The same rule provides by way of exception that it is necessary tostate the precise date the offense was committed when it is a materialingredient of the offense (Sec. 5, Rule 110, Rules of Court).

Duplicity of the offense

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2. A preliminary investigation is not a trial but is, in certain cases, theinitial step towards the criminal prosecution of a person. It is a mere inquiryor a proceeding which do not involve the examination of witnesses by way ofdirect or cross-examinations. Its purpose is not to determine the guilt of therespondent beyond reasonable doubt, but to determine (a) whether or not a

crime has been committed, and (b) that the respondent is probablyguilty ofsaid crime.

3. A preliminary investigation does not require the full and exhaustivepresentation of every evidence available to the persons involved but merelysuch evidence as may engender a well-founded belief that an offense hasbeen committed and that the respondent is probably guilty thereof.

When a preliminary investigation is required

A preliminary investigation is required to be conducted before the filing

of a complaint or information for an offense where the law prescribes apenalty of at least four (4) years, two (2) months and one (1) day withoutregard to the fine (Sec. 1, Rule 112, Rules of Court). This is the general rule.

When preliminary investigation is not required even if the offense requires apreliminary investigation

If a person is arrested lawfully without a warrant involving an offense

which requires a preliminary investigation, i.e., the penalty is at least four (4)years, two (2) months and one (1) day, an information or complaint may befiled against him without need for a preliminary investigation. If he has been

arrested in a place where an inquest prosecutor is available, an inquest willbe conducted instead of a preliminary investigation. In the absence orunavailability of an inquest prosecutor, the complaint may be filed directlywith the proper court on the basis of the affidavit of the offended party orarresting officer or person (Sec. 7, Rule 112, Rules of Court).

2. The fact that a person was lawfully arrested without a warrant does notabsolutely bar him from availing of a preliminary investigation becausebefore the complaint or information is filed, he may ask that a preliminaryexamination be conducted. However, before he is granted the preliminaryinvestigation asked for by him, he must sign a waiver of the provisions of Art.

125 of the Revised Penal Code. This penal code provision imposes a penaltyupon a public officer or an employee who, although having detained a personfor some legal ground, fails to deliver the person arrested to the properjudicial authorities within the periods of twelve (12), eighteen (18) or thirtysix (36) hours as the case may be.

By virtue of Republic Act 7438, any waiver by the person arrested ordetained or under custodial investigation shall be in writing, signed by suchperson in the presence of his counsel, otherwise such waiver shall be nulland void (Sec. 2, Republic Act 7438, Rules of Court).

The waiver of the provisions of Art. 125 of the Revised Penal Code doesnot bar the person arrested from applying for bail and even while thepreliminary investigation is pending. This preliminary investigation must beterminated within fifteen (15) days from its inception (Sec. 7, last par., Rule112, Rules of Court). Note that under the Rules, bail is available to a personunder custody even before he is charged in court. He may apply for bail in

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Rule when resolution is reversed or modified by the Secretary ofJustice

If upon petition by a proper party or motu propio, the Secretary ofJustice reverses or modifies the resolution of the provincial or city prosecutor

of chief state prosecutor, he shall direct the prosecutor concerned either tofile the corresponding information without conducting another preliminaryinvestigation, or to dismiss or move for dismissal of the complaint orinformation with notice to the parties (Sec. 4, Rule 112, Rules of Court).

ARREST (RULE 113)

1. Under Sec. 5 of Rule 113, there are instances when a peace officer or evena private person may make an arrest without warrant. The second instancewhen an arrest may be made lawfully without a warrant has been liberalizedas follows:

When an offense has just been committed and he has probable causeto believe based on personal knowledge of facts and circumstances that theperson to be arrested has committed it. (Sec 5[b] of Rule 113)

Formerly, it provided x x x he has personal knowledge of factsindicating that the person to be arrested has committed it.

Warrantless arrests

1. The general rule as regards arrests, searches and seizures is that a

warrant is needed in order to validly effect the same. The Constitutionalprohibition against unreasonable arrests, searches and seizures refers tothose effected without a validly issued warrant (Malacat vs. Court of Appeals,283 SCRA 159). Hence, the doctrine is that a warrant of arrest is requiredbefore an arrest is made. A warrantless arrest is the exception.

2. The pertinent provisions of Rule 113 of the Rules on Criminal Procedureprovide for the instances when a warrantless arrest may be made:

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

a) When, in his presence, the person to be arrested hascommitted, is actually committing, or is attempting to commit anoffense;

b) When an offense has just been committed, and he hasprobable cause to believe based on personal knowledge of factsor circumstances that the person to be arrested has committedit; and

c) When the person to be arrested is a prisoner who hasescaped from a penal establishment or place where he is servingfinal judgment or is temporarily confined while his case ispending, or has escaped while being transferred from oneconfinement to another.

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Section 5 of Rule 113 provides three (3) instances when warrantlessarrest may be lawfully effected: (a) arrest of a suspect in flagrante delicto;(b) arrest of a suspect where, based on personal knowledge of the arrestingofficer, there is probable cause that said suspect was the author of a crimewhich had just been committed (called hot pursuit; (c) arrest of a prisoner

who has escaped from custody serving final judgment or temporarilyconfined while his case is pending.

There is another ground for a warrantless arrest other than thoseprovided for under Sec. 5 of Rule 113 of the Rules of Court. That ground iswhen a person previously lawfully arrested escapes or is rescued. Under theRules, any person may immediately pursue or retake him without a warrantat any time and in any place3 within the Philippines (Sec. 13, Rule 113, Rulesof Court).

Who may make the warrantless arrest

The warrantless arrest may be made not only by a peace officer butalso by a private person. When the latter makes the arrest under thecircumstances provided for under the Rules, the arrest is called citizensarrest.

A. The flagrante delicto exception

The exception in Sec. 5(a), Rule 113 provides:

* * * When, in his presence, the person to be arrestedhas committed, is actually committing, or is attempting tocommit an offense * * *

Requisites for the application of the exception

For a warrantless arrest of a person caught in flagrante delicto underparagraph (a) of Section 5 to be valid, two requisites must concur:

(a) the person to be arrested must execute an overt act indicating thathe 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 thearresting officer (People vs. Burgos, 144 SCRA 1; People vs. Laguio, G.R. No.128587, March 16, 2007). Reliable information alone is not sufficient tojustify a warrantless arrest under Section 5(a), Rule 113Existence of an overt act of a crime

1. The rule requires that the accused perform some overt act that wouldindicate that he has committed, is actually committing, or is attempting tocommit an offense and that an arrest must precede the search. While a

search incidental to a lawful arrest is sanctioned by the Rules of Court,recent jurisprudence holds that the arrest must precede the search; theprocess cannot be reversed as where the search preceded the arrest. Aflagrante delicto arrest is not justified when no one among the accused wascommitting a crime in the presence of the police officers, more so if thepolice officers did not have personal knowledge of the facts indicating thatthe persons to be arrested had committed an offense. The searches

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conducted on the plastic bag then cannot be said to be merely incidental toa lawful arrest. Reliable information alone is not sufficient to justify awarrantless arrest under Section 5(a), Rule 113. The rule requires, inaddition, that the accused perform some overt act that would indicate thathe has committed, is actually committing, or is attempting to commit an

offense (People vs. Nuevas, G.R. No.170233, February 22, 2007).

2. Consider an experienced officer who upon noticing the characteristicoutlines 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 askingany questions immediately arrests him, cuffs him and forces him inside awaiting patrol car. Inside the car, the officer fishes out the firearm from thearrestees waist, asks him whether or not he has a license to possess and apermit to carry the firearm, and after an admission from the person arrestedthat his gun has neither a license nor any other permit books him for illegalpossession of firearms. Whether or not the acts of the officer are permissible

under the law and the Rules will necessarily be determined by the requisitesprovided for by Sec. 5(a) of Rule 113. The crucial issue to be laid before thecourt would be whether or not having the butt of a pistol bulge from oneswaist plainly within the view of the officer constitutes an overt act of thecrime of illegal possession of firearm which would justify an immediatearrest. The defense counsel would certainly argue that mere carrying of apistol does not in itself indicate a violation of the law since illegal possessionof a gun cannot be inferred from its mere possession. When theapprehension was made, the officer had no awareness that a crime is beingcommitted in his presence since he had no prior knowledge that the personcarrying the same had no license for the firearm, a knowledge that came to

him only after the arrest. In short, there was absolutely nothing under thefacts that would show an overt act of a crime other than the mere suspicionthat the gun was unlicensed at the time of the arrest. The gun, under thecircumstances becomes a fruit of the poisonous tree and would inevitablybe held as inadmissible in evidence.

3. A 1988 case, People vs. Aminnudin, 163 SCRA 402, demonstrates thelegal infirmity of an arrest for noncompliance with the requisites of theflagrantedelicto exception. Here, two days before the arrest, constabularyofficers received a tip from an informer that the accused was on board anidentified vessel on a particular date and time and was carrying marijuana.

Acting on the information, they waited for the accused and approached himas he descended the gangplank of the ship and arrested him. A subsequentinspection of his bag disclosed the presence of three kilos of marijuanaleaves. The Court declared as inadmissible in evidence the marijuana foundin the possession of the accused as a product of an illegal search as notbeing an incident to a lawful arrest. Emphatically, the Supreme Courtdeclared that the accused was not, at the moment of his arrest, committinga crime nor was it shown that he was about to do so or that he had just doneso. He was merely descending the gangplank of the ship and there was nooutward indication that called for his arrest. To all appearances, he was likeany of the other passengers innocently disembarking from the vessel. It was

only when the informer pointed to him as the carrier of the marijuana that hesuddenly became a suspect and so subject to apprehension. The court addedthat from the information received by the officers, they could have obtaineda warrant since they had at least two days to apply for the same but theofficers made no efforts to comply with the bill of rights. They chose toignore the law.

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Then too, in People vs. Molina, 352 SCRA 174, the conviction by thetrial court was reversed and set aside when the Supreme Court declared asinvalid an arrest made merely on the basis of reliable information that thepersons arrested were carrying marijuana. The accused were arrested whileinside a pedicab despite the absence of any outward indications of a crime

being committed.

Similarly, in Malacat vs. Court of Appeals, 283 SCRA 159, the SupremeCourt declared that a warrantless arrest cannot be justified where no crime isbeing committed at the time of the arrest because no crime may be inferredfrom the fact that the eyes of the person arrested were moving fast andlooking at every person passing by.

4. A classic case that illustrates an invalid arrest and a subsequent illegalsearch and seizure is People vs. Mengote, 210 SCRA 174. The issue on thelegality of the arrest, search and seizure stemmed from a telephone call to

the police from an alleged informer that suspicious looking men were at astreet corner in Tondo shortly before noon. The police operatives dispatchedto the place saw three men one of whom who turned out to be Mengote, waslooking from side to side clutching his abdomen. The operativesapproached the three men and introduced themselves as policemen. Two ofthem accordingly tried to run away but the attempt was foiled. The searchyielded a revolver in the possession of Mengote and a fan knife in the pocketof another. Mengote contends that the revolver should not have beenadmitted in evidence because its seizure was a product of an illegal searchand made as an incident to a lawful arrest.

Speaking through Justice Isagani A. Cruz the Court ruled that therequirements of a warrantless arrest were not complied with. There was nooffense which could have been suggested by the acts of Mengote of lookingfrom side to side while holding his abdomen. Observed the Court: These arecertainly not sinister acts. * * * He was not skulking in the shadows butwalking in the clear light of day. There was nothing clandestine about hisbeing 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 actsthat an offense had just been committed, or was at least being attempted intheir presence.

5. One relatively recent case (People vs. Laguio, G.R. No. 128587, March16, 2007), and which drew much from the ruling in Aminnudin likewise aptlyillustrates the application of the doctrine. In this case, two men werearrested while they were about to hand over a bag of shabu to a policerofficer. Questioned, the arrested men told police operatives working for amodelling agency owned by a certain Wang although they did not disclosethe source of the shabu but they disclosed that they knew of a scheduleddelivery ofshabu early the following morning and that their employer, Wangcould be found at a certain apartment building in Malate, Manila. The policeoperatives decided to look for Wang to shed light on the illegal drugactivities of his alleged employees and proceeded to the location of the

apartment and placed the same under surveillance.

When Wang came out of the apartment towards a parked car, twoother police officers approached Wang, introduced themselves to him aspolice officers, asked his name and, upon hearing that he was Wang,immediately frisked him and asked him to open the back compartment of thecar. When frisked, there was found inside the front right pocket of Wang and

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(a) The right to be assisted by counsel at all times (Sec. 2(a), R.A.7438);

(b)The right to remain silent (Sec. 2(b), R.A. 7438);(c)The right to be informed of the above rights (Sec. 2(b), R.A. 7438);

and

(d)The right to be visited by the immediate members of his family, byhis counsel, or by any non-governmental organization, national orinternational (Sec. 2(f), Rule 113, Rules of Court).

2. The counsel must be one who is independent and competent. He shallbe allowed to confer at all times with the person arrested, detained or undercustodial investigation. If such person cannot afford the services of his owncounsel, he must be provided by the investigating officer with a competentand independent counsel (Sec.2(b), Rule 113, Rules of Court).

3. In the absence of a lawyer, no custodial investigation shall be

conducted and the suspected person can only be detained by theinvestigating officer in accordance with the provisions of Article 125 of theRevised Penal Code (Sec. 3, R.A. 7438). Also, any waiver of the provisions ofArticle 125 of the Revised Penal Code, shall be in writing, and signed by theperson arrested, detained or under custodial investigation in the presence ofhis counsel, otherwise the waiver shall be null and void and of no effect (Sec.2(e), Rule 113, Rules of Court).

4. Any extrajudicial confession made shall also be in writing and signedby the person, detained or under custodial investigation in the presence ofhis counsel, or in the latters absence, upon a valid waiver, and in the

presence of any of the parents, older brothers and sisters, his spouse, themunicipal mayor, the municipal mayor, the municipal judge, district schoolsupervisor, or priest or minister of the gospel as chosen by him; otherwisesuch extrajudicial confession shall be inadmissible as evidence in anyproceeding (Sec. 2(d), R.A. 7438).

5. R.A. 7438 expanded the meaning of custodial investigation. Under Sec.2(f) of the Act, custodial investigation shall include the practice of issuing aninvitation to a person who is investigated in connection with an offense heis suspected to have committed, without prejudice to the liability of theinviting officer for any violation of law.

6. R.A. 7438 provides penalties for its violations. For instance, anyarresting officer or investigating officer who fails to inform any person,arrested, detained or under custodial investigation of his rights to remainsilent and to counsel, shall suffer a penalty consisting of a fine of sixthousand pesos (P6,000.00) or a penalty of imprisonment of not less thaneight (8) years but not more than ten (10) years, or both.

Any person who obstructs, prevents or prohibits any lawyer, anymember of the immediately family of a person arrested, detained or undercustodial 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).

Effect of admission to bail on objections to an illegal arrest

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grant of bail. The court must conduct a hearing to determine whether or notevidence of guilt is strong (Narciso vs. Sta. Romana-Cruz, March 17, 2000).To dispense with a hearing in cases ofreclusion perpetua or higher showsignorance or incompetence of the judge (Grageda vs. Tresvalles, 421 SCRA5000).

The constitutional provision on bail makes reference to the word.conviction It suggests that bail applies to those arrested for the violation ofcriminal laws. Does it apply to extradition proceedings? One case held,generally NO! However, it was ruled that there is no logic to confine bail tocriminal proceedings. Bail should be made available in all cases where thereis deprivation of liberty prior to or during trial. Although not a matter of rightin extradition proceedings, bail may be granted if: (a) the extraditee is not aflight risk; and (b0 there are special, humanitarian and compelling reasons(Government of the U.S. vs. Purganan, 389 SCRA 623).

The Supreme Court has recently leaned towards granting bail inextradition cases: Thus,

Extradition has thus been characterized as the rightof a foreign power, created by treaty, to demand the surrenderof one accused or convicted of a crime within its territorial jurisdiction, and the correlative duty of the other state tosurrender him to the demanding state.] It is not a criminalproceeding. Even if the potential extraditee is a criminal, anextradition proceeding is not by its nature criminal, for it is notpunishment for a crime, even though such punishment may

follow extradition. It is sui generis, tracing its existence whollyto treaty obligations between different nations. It is not a trial todetermine the guilt or innocence of the potential extraditee. Noris it a full-blown civil action, but one that is merely administrativein character. Its object is to prevent the escape of a personaccused or convicted of a crime and to secure his return to thestate from which he fled, for the purpose of trial or punishment.

But while extradition is not a criminal proceeding, it ischaracterized by the following: (a) it entails a deprivation ofliberty on the part of the potential extraditee and (b) the means

employed to attain the purpose of extradition is also themachinery of criminal law. This is shown by Section 6 of P.D.No. 1069 (The Philippine Extradition Law) which mandates theimmediate arrest and temporary detention of the accused ifsuch will best serve the interest of justice. We further notethat Section 20 allows the requesting state in case of urgencyto ask for the provisional arrest of the accused, pending receiptof the request for extradition; and that release from provisionalarrest shall not prejudice re-arrest and extradition of theaccused if a request for extradition is received subsequently.

Obviously, an extradition proceeding, while ostensiblyadministrative, bears all earmarks of a criminal process. Apotential extraditee may be subjected to arrest, to a prolongedrestraint of liberty, and forced to transfer to the demanding statefollowing the proceedings. Temporary detention may be anecessary step in the process of extradition, but the length oftime of the detention should be reasonable.

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