The end does not justify the means (in warrantless searches and arrests)

By Atty. Eduardo T. Reyes III

Being aggressive in swooping down on criminal activity on one hand, and respecting privacy rights on the other, involves a delicate balancing act.

The rule is that every search of a private place must be supported by a warrant to be issued by a judge upon a finding of probable cause that a crime is being committed or was just committed. In these cases, the duty devolves upon the judge to determine where privacy rights must end and clamping down on crime must begin.

In urgent cases however, where there is no time to procure a search warrant, police officers can act in pursuance of their mandate to stop an ongoing criminal activity and apprehend the criminal who is caught red-handed even without a search warrant and/ or warrant of arrest.

In People of the Philippines v. Ronilo Jumarang y Mulingbayan, G.R. No. 250306, which was handed down on August 10, 2022, it was concluded that  “In warrantless arrest made pursuant to Section 5(a), two elements must concur: ( 1) the person to be arrested must execute an overt act indicating that he has just committed, 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.”

Thus,  an “overt act” is necessary before a warrantless arrest can be effected. The “overt act” must be in relation to the commission of a crime on the basis of “personal knowledge” of the arresting officer and not just based on mere “suspicion” or even a “confidential tip”.

In People of the Philippines v. Ronilo Jumarang y Mulingbayan, a person suspected of being engaged in the illegal sale of marijuana plants was seen descending from a staircase holding a “pot” which was “suspected” to contain a marijuana plant. The arresting officers who were “10 meters away” did not actually see that it was a marijuana plant from their vantage point yet they still proceeded to make a warrantless arrest on the suspect/ accused.

The Supreme Court nullified the arrest by ruling that:

“In an arrest made in flagrante delicto, it is required that the apprehending officer must have been spurred by probable cause to arrest a person caught. Probable cause refers to “such facts and circumstances which would lead a reasonably discreet and prudent [person] to believe that an offense has been committed by the person sought to be arrested”.

In this case, P02 Tanay testified that they received a tip from a confidential informant that marijuana plants could be found in the De Lima residence located in Santiago, Bato, Camarines Sur. To verify the tip, the police officers proceeded to the De Lima residence and conducted a surveillance where they observed the house from the roadside. According to P02 Tanay, they were positioned at a distance of ten meters from the house when they saw a man going downstairs holding a potted plant. According to P02 Tanay, since their confidential informant already told them that the person had some marijuana plants, they already assumed that the potted plant was marijuana. Thus, they called the man and instructed him to come down from the stairs and they asked him about the plant he was carrying.

As stated above, when the police officers saw accused-appellant, he was simply going downstairs while holding a potted plant. Accused-appellant was, at this moment, not committing a crime and it was not even shown that he was about to do so or that he had just done so. What he was doing was descending from the stairs, and there was no outward indication that called for his arrest”.

                It is therefore necessary that arresting officers must have “personal knowledge” that the suspect is really “committing a crime”. It is not enough that they rely on the whisperings of a confidential informant and make a hasty conclusion that a crime is already being committed.

At the risk of occasional error, acts which are not clearly considered as crimes like the mundane activities of ordinary persons must be respected and they should not be accosted for doing such. This is true even if the “mere suspicion” of the arresting officer turns out to be correct.

In other words, in warrantless searches, and arrests made as an incident of the same, “the end does not justify the means”.

(The author is the senior partner of ET Reyes III & Associates– a law firm based in Iloilo City. He is a litigation attorney, a law professor and a law book author. His website is etriiilaw.com).