Arrest without a warrant

Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to dearpao@



The Manila Times


Dear PAO, My sister was arrested for allegedly possessing shabu (methamphetamine hydrochloride). She was apprehended without a warrant of arrest and is now detained in one of the police community precincts in Parañaque City. Can a person be apprehended without a warrant? Lino Dear Lino, To answer your question, we shall refer to Section 5 of Rule 113 of the Rules of Court, which states that: “Section 5. Arrest without warrant; when lawful. —A peace officer or a private person may, without a warrant, arrest a person: (a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense; (b) When an offense has 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. In cases falling under paragraph (a) and (b) above, the person arrested without a warrant shall be forthwith delivered to the nearest police station or jail… xxx” (Emphases supplied) Clearly, a person can be arrested without a warrant under three instances: in flagrante delicto, hot pursuit, and escape from prison. However, considering that warrantless arrest is the exception to the general rule requiring a warrant prior to arrest, there are required elements that must be established. This serves as a safeguard to the citizens against possible abuse that may be committed by the arresting officers. In the case of People vs. Pavia, et. al. (G.R. No. 202687, January 14, 2015), the Supreme Court through retired Associate Justice Jose P. Perez elucidated: “Paragraph (a) of Section 5 is commonly known as an in flagrante delicto arrest. For a warrantless arrest of an accused caught in flagrante delicto to be valid, two requisites must concur: (1) the person to be arrested must execute an overt act indicating that he has just committed, is actually committing, or is attempting to commit a crime; and (2) such overt act is done in the presence or within the view of the arresting officer.” (Emphases supplied) Meanwhile, in the case of Joey M. Pestilos, et al. vs. Moreno Generoso and the People of the Philippines, G.R. No. 182601, November 10, 2014, the Supreme Court speaking through retired Associate Justice Arturo D. Brion explained the second instance of warrantless arrest described as “hot pursuit” arrest as follows: “As presently worded, the elements under Section 5(b), Rule 113 of the Revised Rules of Criminal Procedure are: first, an offense has just been committed; and second, the arresting officer has probable cause to believe based on personal knowledge of facts or circumstances that the person to be arrested has committed it.” Further clarifying the second element, “the Court held that personal knowledge of facts must be based on probable cause, which means an actual belief or reasonable grounds of suspicion. xxx A reasonable suspicion, therefore, must be founded on probable cause, coupled with good faith on the part of the peace officers making the arrest.” Notably, in both instances, it is required that the arrested person committed acts that would justify his or her arrest. In People of the Philippines vs. Mario S. Veridiano, (G.R. No. 200370, June 7, 2017), the Supreme Court, through Associate Justice Marvic Mario Victor F. Leonen, clarified that: “Failure to comply with the overt act test renders an INflAGRANTE delicto arrest constitutionally infirm. In Cogaed, the warrantless arrest was invalidated as an in flagrante delicto arrest because the accused did not exhibit an overt act within the view of the police officers suggesting that he was in possession of illegal drugs at the time he was apprehended. xxx The warrantless arrest cannot likewise be justified under Rule 113, Section 5(b) of the Revised Rules of Criminal Procedure. The law enforcers had no personal knowledge of any fact or circumstance indicating that petitioner had just committed an offense. A hearsay tip by itself does not justify a warrantless arrest.” Considering that your sister is not an escapee from prison, she may be validly arrested without warrant if the conditions set forth IN flAGRANT delicto or hot pursuit arrest are present. Either she committed acts indicating the commission of a crime in the presence of police officers, or there was a crime and the arresting officers had probable cause to believe that she was the perpetrator, which would also require commission of external acts on her part. If the conditions were not present at the time of her apprehension, then her arrest is invalid and is in violation of the fundamental right of every person to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose guaranteed by Section 2, Article III of our Constitution. We hope that we were able to answer your queries. This advice is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.