It is time for Duterte and his PNP Chief to refresh their knowledge of the legal procedures for arrest in relation to their announced policy of “shoot to kill” without restraints, limitations, and qualifications.
Rule 113 of the Rules of Criminal Procedure govern the legal procedures for ARREST.
“Arrest” is the taking of a person “into custody” in order that he may be bound “to answer for the commission” of an offense. (Sec. 1)
An arrest is made by an “actual restraint of a person to be arrested”, or by “his submission to the custody of the person making the arrest”. (Sec. 2).
A warrant of arrest is “not a license to kill” the accused to be arrested.
“No violence or unnecessary force” shall be used in making an arrest. (Id.).
The person arrested shall “not be subject to a greater restraint than is necessary” for his detention. (Id.)
It shall be the “duty” of the officer executing the warrant “to arrest” the accused and “to deliver him to the nearest police station or jail” without unnecessary delay. (Sec. 3).
Section 5 (“arrest without warrant; when lawful”) of Rule 113 governs the procedures on “valid warrantless arrests”.
It provides that 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.
The person arrested without a warrant shall be forthwith delivered to the nearest police station or jail and shall be proceeded against in accordance with the Inquest Proceedings of the Department of Justice. (Read also Section 7, Rule 112).
Section 7 9 (“method of arrest by officer by virtue of warrant”) of Rule 113 provides that when making an arrest “by virtue of a warrant”, the officer shall “inform the person to be arrested” of the cause of the arrest and of the fact that a warrant has been issued for his arrest.
The exception is when “he flees or forcibly resists” before the officer has opportunity to so inform him, or when the giving of such information will imperil the arrest.
Section 8 (“method of arrest by officer without warrant) of Rule 113 provides that when making an arrest “without a warrant”, the officer shall inform the person to be arrested of his authority and the cause of the arrest, unless the latter is either engaged in the commission of an offense, is pursued immediately after its commission, has escaped, flees or forcibly resists before the officer has opportunity so to inform him, or when the giving of such information will imperil the arrest.
Section 9 (“method of arrest by private person”) of Rule 113 is commonly called by laymen as “citizen’s arrest”. It provides that when making an arrest, a ‘private person” shall “inform the person to be arrested” of the intention to arrest him and cause of the arrest, unless the latter is either engaged in the commission of an offense, is pursued immediately after its commission, or has escaped, flees, or forcibly resists before the person making the arrest has opportunity to so inform him, or when the giving of such information will imperil the arrest.
Section 11 (“right of officer to break into building or enclosure”) of Rule 113 provides that an officer, in order to make an arrest either by virtue of a warrant, or without a warrant as provided in Section 5, may break into any building or enclosure where the person to be arrested is or is reasonably believed to be, if he is “refused admittance” thereto, “after announcing his authority and purpose.”
Section 13 (“arrest after escape or rescue”) of Rule 113 provides that if a person lawfully arrested “escapes or is rescued”, “any person”
may immediately “pursue or retake” him “without a warrant” at any time and in any place within the Philippines.
Section 14 (“right of attorney or relative to visit person arrested”) of Rule 113 speaks of the rights of an arrested person. It provides that any member of the Philippine Bar shall, at the request of the person arrested or of acting in his behalf, have the right to visit and confer privately with such person in the jail or any other place of custody at any hour of the day or night. Subject to reasonable regulations, a relative of the person arrested can also exercise the same right.
In the case of Dinapol v. Baldado, 225 SCRA 110 (1993), per Rule 112, the rights of accused prior to arrest are: (a) to seek a “reinvestigation” by the Office of the Prosecutor; (b) to oppose issuance of warrant of arrest based on “lack of probable cause”; and (c) to seek “judicial determination of probable cause”.