NDER the Constitution, the general rule is that an arrest or search can be made, only if it is authorized by a warrant issued by a judge. However, there are certain exceptions when a warrantless arrest and a warrantless search could be conducted by the police.

Under the Rules of Court, Rule 113, Section 5, a warrantless arrest, also known as "citizen’s arrest," is lawful under three circumstances:

1. When, in the presence of the policeman, the person to be arrested has committed, is actually committing, or is attempting to commit an offense. This is the "in flagrante delicto" rule.

2. 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. This is the "hot pursuit" arrest rule.

3. When the person to be arrested is a prisoner who has escaped from a penal establishment.

This rule allowing warrantless arrest is strictly construed. If the warrantless arrest is unlawful at the beginning, it cannot be made lawful later, by anything that happens or is discovered afterwards.

The term "in flagrante delicto" means "in the very act of committing a crime." In other words, the suspect was caught red-handed. To be caught in flagrante delicto necessarily implies positive identification by the eyewitness. The accused should be caught immediately after the commission of the act.

In flagrante delicto warrantless arrest should comply with the element of immediacy between the time of the offense and the time of the arrest. For example, in one case the Supreme Court held that when the warrantless arrest was made three months after the crime was committed, the arrest was unconstitutional and illegal.

If an accused is caught in flagrante delicto, the warrantless arrest is lawful and the evidence obtained in a search incidental to the arrest is admissible as evidence. One common example of a warrantless arrest is a buybust operation.

An offense is committed in the presence or within the view of an officer when the officer sees the offense, although at a distance; or hears the disturbance that it creates and proceeds at once to the scene.

If the warrantless arrest turns out to be unlawful, still the court is capable of assuming jurisdiction over the accused. Any objection to the court’s jurisdiction is waived, when the person arrested submits to arraignment without any objection.

The test of in flagrante delicto arrest is that the suspect was acting under circumstances reasonably tending to show that he has committed or is about to commit a crime. Evidence of guilt is not necessary. It is enough if there is probable cause. For example, if there was a prior arrangement to deliver shabu inside a hotel, the immediate warrantless arrest of the accused upon his entry in the hotel room is valid. By contrast, the discovery of marked money on the accused does not justify a warrantless arrest.

The police are authorized to make a warrantless arrest at any time or place, under the doctrine of continuing crime. One example of a continuing crime is rebellion, for which a warrantless arrest is valid at any time or place. By contrast, inciting to sedition is not a continuing crime, and cannot be the subject of a warrantless arrest.

Under the rule on "hot pursuit" arrest, the policeman should have personal knowledge that the suspect committed the crime. The test is probable cause, which the Supreme Court has defined as "an actual belief or reasonable grounds of suspicion."

Under this rule, the policeman does not need to actually witness the execution or acts constituting the offense. But he must have direct knowledge, or view of the crime, right after its commission.

Accordingly, the following are lawful warrantless arrests:

* The police had earlier conducted surveillance of the accused.

* The policeman sees the offense, although at a distance.

* The policeman hears the disturbance created by the offense.

* There is probable cause of a communist threat.

* There is probable cause of a national security threat.

* Shoplifting, when the shopkeeper detains the suspect for the time necessary for a reasonable investigation.

* Direct contempt committed in the presence of the court, upon the oral discretion of the presiding judge.

* Vagrancy

* Frisking the person, or any intrusions short of an arrest, when circumstances combine to establish probable cause and the incidental search reveals that the solid object is a revolver. This is known as the "Terry stop."

* Public intoxication.

* Driving while intoxicated.

* Investigatory stop of motor vehicle, based on articulable and reasonable suspicion that the motorist is unlicensed, the automobile is not registered, or either the vehicle or an occupant is otherwise subject to seizure for violation of law. This is known as the "articulable and reasonable suspicion" standard.

* Mentally disabled persons on emergency grounds.

By contrast, the following are unlawful warrantless arrests:

* Arrest on the verbal report of a witness.

* Arrest based on raw intelligence information.

* Arrest based on unreliable hearsay information.

* Arrest based on unreasonable suspicion.

If a warrantless arrest is made and eventually the court finds the arrested persons to be innocent and acquits them, are the arresting officers liable? The answer is no.

The Constitution does not forbid warrantless search; it only forbids unreasonable search. The Rules of Court, Rule 126, Section 13, allows a warrantless search, provided it is incident to a lawful arrest. The law provides: "A person lawfully arrested maybe searched for dangerous weapons or anything which may have been used or constitute proof in the commission of an offense without a search warrant."

To be valid, the search must have been conducted at about the time of the arrest or immediately thereafter, and only at the place where the suspect was arrested, or the premises or surroundings under his immediate control.

Any evidence obtained during an illegal search (even if it confirms initial suspicion of felonious activity) is considered absolutely inadmissible for any purpose in any proceeding, since it is considered to be the fruit of a poisonous tree. Since the AntiWiretapping Law provides that an illegal wiretap is inadmisslble for any purpose in any proceeding, being the fruit of a poisonous tree, do you wonder how the alleged Garci tape could be possibly considered admissible? I wonder too.

A valid arrest must precede the search, not vice versa. One exception to the rule on search is waiver by the suspect. For example, where the shabu was discovered by virtue of a valid warrantless search, and the accused himself freely gave his consent to the search, the prohibited drugs found as a result were inadmissible as evidence.

Another example, is the stopand-frisk rule. A warrantless search is allowed if the officers had reasonable or probable cause to believe before the search that either the motorist is a law offender, or that they did find the evidence pertaining to the commission of a crime in the vehicle to be searched. The rule for checkpoints is that the inspection of the vehicle should be limited to a vehicle search. The vehicle itself should not be searched, and its occupants should not be subjected to a body search.

The following are lawful warrantless searches:

* Warrantless search incidental to a lawful arrest recognized under the Rules of Court, Rule 126, Section 12, and by prevailing jurisprudence;

* Where consent is given to the search;

* Seizure of prohibited articles in plain view. The seizure should comply with the following requirements:

(1) A prior valid intrusion based on a valid warrantless arrest, in which the police are legally present in the pursuit of their official duties.

(2) The evidence was inadvertently discovered by the police who had the right to be where they are.

(3) The evidence must be immediately apparent.

(4) Plain view justified mere seizure of evidence without further search.

The rule is that the object must be open to the eye and hand, and its discovery was not evident. If the object seized was inside a closed package, and was not in plain view, can the policeman make a warrantless search? No. However, he can make a warrantless search or seizure if the package proclaims its contents, whether by its distinctive configuration, or its transparency; or if it is contents are obvious to an observer.

* Where exigent or emergency circumstances exist. The rule on "exigent circumstances" to justify a warrantless search or seizure calls for an immediate search without delay, such as danger or violence or injury to the officers or others, risk of the subject’s escape, or the probability that, unless taken on the spot, evidence will be concealed or destroyed.

* Where the search is made incidental to an inventory search;

* Where the search involves national security;

* The search of a moving vehicle, based on the reasoning that it is not practicable to secure a warrant when the vehicle can be quickly moved out of the locality. The purpose is to prevent a violation of smuggling or immigration laws.

* Search on ships and airplanes for violation of customs laws;

* Stop-and-frisk rule;

* Inspection of buildings and other premises for the enforcement of fire, sanitary and building regulations.

As a lawyer and a former RTC judge, I am a very strong lawand-order person. The people upholding law in society are policemen and therefore, all doubts should be resolved in favor of the police. After all, the Rules of Court provides for the disputable presumption that official duty has been regularly performed.

I submit that it is not fair to demand that the police should risk their very lives to uphold the rule of law, and yet should be held in low esteem by people whose mission in life is to change or disregard the law, outside of constitutional processes. Accordingly, as vice chair of the Senate Finance Committee, I will file at the end of the Senate budget hearings, a motion to appropriate the sum of R37 billion for the Philippine National Police.

This amount should be appropriated for the following projects:

* Additional police stations in tourist destinations and insurgency affected areas;

* More ground vehicles, aircraft, and sea craft;

* More firearms, both short and long; more radios, whether base, mobile, or handheld.

In my motion, I will cite and express full support for Senate Joint Resolution Nos. 4 and 5, which will provide for an increase in daily subsistence allowance from R60 to R100, with an additional R20 for those in training. The resolutions also provide for adjustment of this amount, based on the Customer Price Index as may be determined by NEDA every three years.

Policemen of the Philippines, unite! When in the right, stand your ground, for as the poet said: