CRIMPRO DIGESTS G01
ATTY. ARNO V. SANIDAD
138) Ongcoma Hadji Homar v. People
ISSUE: W/N there was intent on the part of the police to arrest the accused on the basis of
the crime committed? NO.
FACTS:
- An Information was filed against Petitioner Homar for possession of 1 heat-sealed
plastic sachet of shabu
- PO1 Eric Tan [lone prosecution witness] testified that on 20 Aug 2002, at around
8:50pm, Chief Valdez ordered him to go to South Wing, Roxas Blvd.
- While proceeding there, he saw Homar crossing a “No Jaywalking” portion of Roxas 
Tan and civilian agent Tangcoy immediately stopped Homar and told him to cross at
the pedestrian lane
- Homar was seen to be picking up something from the ground  Tangcoy thus
conducted a frisk search resulting in the recovery of a knife  they did a more
thorough search and found the shabu
- [defense’ version] Homar was going home after selling some fake sunglasses at the
BERMA Shopping Center. After crossing the overpass, Tan stopped and frisked him
- They poked a gun at him and accused him of being a holdupper. They confiscated a
knife for cutting cords, and Homar was investigated for alleged possession of shabu.
- MTC acquitted him  RTC, convicted him, ruling on the presumption of regularity of
Tan and Tangcoy in their duties.
- CA  affirmed RTC, ruling that R113 S5(a) validated the warrantless arrest, because
Homar was committing jaywalking in the presence of the police, thus his arrest was
lawful. Consequently, the subsequent stop and frisk search was incidental to the
warrantless arrest, R126 S13
- [Homar’s arguments] (1) the evidence of shabu is inadmissible as it was obtained as a
result of an unlawful arrest  in fact, no report or criminal charge was filed against
him for the alleged jaywalking. Thus he did not commit, was not committing, or was
not attempting to commit any crime.
- (2) assuming that there was a valid arrest, R126 S113 permits a search that is directed
only upon dangerous weapons or anything that may have been used to constitute
proof in the commission of an offense. In this case, the shabu had nothing to do with
jaywalking.
- [Respondent’s arguments] Tan reiterated that the warrantless frisking and search was
an incident to a lawful arrest for jaywalking, and that the nonfiling of a criminal charge
of jaywalking against Homar did not render his arrest invalid.
HELD:
- Prosecution failed to prove that Homar was committing a crime related to the evidence
obtained from the warrantless search and seizure. The law requires that there be first a
lawful arrest before a search can be made — the process cannot be reversed.
- S5 R113 provides the only occasions when a person may be lawfully arrested without
warrant. In this case, Tan alleged that Homar’s arrest was due to his commission of
jaywalking in flagrante delicto
TOPIC: ARREST – INTENT TO ARREST
AUTHOR: CARO, MONICA CELINE A.
o [requisites] (1) the person 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
o (2) such overt act is done in the presence of or within the view of the arresting
officer.
- [doctrine] The prosecution has the burden to prove the legality of the warrantless
arrest from which the corpus delicti of the crime — shabu — was obtained. For,
without a valid warrantless arrest, the alleged confiscation resulting from a warrantless
search on the petitioner’s body is surely a violation of his right against unlawful search
and seizure.
o Tan failed to identify the area where Homar allegedly crossed. Thus, Tan merely
stated that Homar “crossed the street of Roxas Boulevard, in a place not
designated for crossing.” Aside from this conclusion, Tan failed to prove that the
portion of Roxas Blvd where Homar crossed was indeed a “no jaywalking” area.
Homar was also not charged of jaywalking.
- In the process of accosting Homar for jaywalking, Tangcoy recovered a knife and shabu,
thus there is doubt as to whether they intended to arrest Homar for jaywalking.
- [Doctrine] Arrest is the taking of a person into custody in order that he or she may be
bound to answer for the commission of an offense. Application of actual force, manual
touching of the body, or physical restraint, nor a formal declaration of arrest, is
required. It is enough that there be an intention on the part of one of the parties to
arrest the other, and that there be an intent on the part of the other to submit, under
the belief and impression that submission is necessary.
- Clearly, no arrest preceded the search on the person of the petitioner. When Tan and
Tangcoy allegedly saw Homar jaywalking, they did not arrest him but accosted him and
pointed to him the right place for crossing
- Tan and Tangcoy did not intend to bring the petitioner under custody or to restrain his
liberty. The intent to arrest Homar only came after the discovery of shabu.
- Luz v. People: Shabu confiscated from the accused was inadmissible as evidence when
the police who flagged him for traffic violation had no intent to arrest him. Due to the
lack of intent to arrest, the subsequent search was unlawful. This is notwithstanding
the fact that the accused, being caught in flagrante delicto for violating an ordinance,
could have been therefore lawfully stopped or arrested by the apprehending officers.