LAWYER-COP VILLANIA EXPLAINS

'INITIAL VIOLATION'

Reynold Villania is a celebrity lawyer and police officer on Facebook. His

goal is to empower police officers and citizens through legal education. He
educates the public, especially his fellow policemen, through his
informative social media posts and discussions.

Importante ang topic natin sa ngayon na may kaugnayan sa terminong

"initial violation". Sinasabing sa traffic daw, para makapagsagawa ng
warrantless search sa tao at sasakyan, kailangan may initial violation , gaya
ng no helmet, no OR and/or CR, no headlight at iba pa. Ano ba ang legal na
basehan nito?

[This is an important topic nowadays and it has something to do with the

term "initial violation." It is said that, in traffic cases, there should be an
"initial violation" before a police officer can conduct a warrantless search on
a person or his vechile. Such initial violation is said to be in the form of lack
of helmet, lack of OR and/or CR, busted or broken headlight and others.
What is the legal basis of this?]

OR means official receipt. CR means certificate of registration.

Kung pagbabasehan ang Criminal Procedure, wala makikitang "initial

violation" as a legal basis for a warrantless search. Ang makikita ay "search
incidental to a lawful arrest" na ang ibig sabihin, ang tao may ginawang
krimen dahilan para siya ay legal na ma-search without a warrant.

[In criminal procedure, the term "initial violation" is not used as a legal
basis to justfiy a warantless search. What can be seen in the rules is "search
incidental to a lawful arrest" which means that a person has done a crime
which is the reason why he is legally under search despite lack of warrant.]

Ano ba ang pagkakaiba ng dalawa? Kung tutuusin, parehas lang dahil ang
tao ay may ginawang paglabag ng batas. Subalit:

[1] Malabo ang pinagmulan ng terminong initial violation (baka terminong

gamit ng pulis lamang) samantalang ang search incidental to a lawful arrest
ay nandyan sa batas mismo.

[2] Lumalabas na ang initial violation as a ground to conduct warrantless

search ay aplikable lamang sa traffic violation (kung ito ay legal),
samantalang ang search incidental to a lawful arrest ay aplikable sa lahat,
kasama na ang initial violation.

[3] Pagdating sa korte, mas angkop at mas kilala ang search incidental to a
lawful arrest kaysa sa initial violation kaya kung ito ang gagamitin ay mas
malakas at klarado ang legal na posisyon ng pulis.

Sa madaling sabi, ang dapat na sinasabi ng pulis ay search incidental to a

lawful arrest imbes na initial violation dahil ito ang tama at angkop sa mga
pangyayari.

[What is the difference between the two? If you look closely, both are
violations of law. HOWEVER:

[1] The term "initial violation" is a vague term with origins unknown. It may
be a term used only within the police force. On the other hand, search
incidental to lawful arrest is the exact term used by the law and rules;

[2] It appears that "initial violation" is a term used in traffic cases. It is a

ground to conduct a warrantless search if justified. On the other hand,
search incidental to lawful arrest is applicable to all cases. In short, the
second term covers the first term; and

[3] In court, it is better (and more popular) to used the term "search
incidental to lawful arrest" instead of "initial violation." When used, the
first term has a clearer and forceful legal effect to justify the position of the
arresting/searching police officer.]

ABOUT REYNOLD VILLANIA: He is the Legal Officer of Camarines

Norte Provincial Police Office, Region 5. (reynold.villania@yahoo.com)

VILLANIA WILL WRITE NEXT ON: Oplan Sita at Oplan

Galugad. FOR MORE
CONTENTS: https://www.facebook.com/reynoldvillania.

SOURCE: Villania (2019). "Initial Violation versus Search Incidental to a

Lawful Arrest". June 6,
2019. https://www.facebook.com/reynoldvillania/photos/a.165699706123
3350/2279238575675859/
Jurisprudence agrees with Villania. In Veridiano v. People, the court
discussed the concept of "incidental searches."

A search incidental to a lawful arrest requires that there must first be

a lawful arrest before a search is made. Otherwise stated, a lawful arrest
must precede the search; "the process cannot be reversed." For there to be a
lawful arrest, law enforcers must be armed with a valid warrant.
Nevertheless, an arrest may also be effected without a warrant.

There are three (3) grounds that will justify a warrantless arrest. Rule 113,
Section 5 of the Revised Rules of Criminal Procedure provides:

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.

The first kind of warrantless arrest is known as an in flagrante delicto arrest.

The validity of this warrantless arrest requires compliance with the overt
act test as explained in Cogaed:

[F]or a warrantless arrest of in flagrante delicto to be affected, "two

elements must concur: (1) the person to be arrested must execute an overt
act indicating that he [or she] 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."

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.

The warrantless search in People v. Racho was also considered

unlawful. The police officers received information that a man was in
possession of illegal drugs and was on board a Genesis bus bound for Baler,
Aurora. The informant added that the man was "wearing a red and white
striped [t]-shirt." The police officers waited for the bus along the national
highway. When the bus arrived, Jack Racho (Racho) disembarked and
waited along the highway for a tricycle. Suddenly, the police officers
approached him and invited him to the police station since he was
suspected of having shabu in his possession. As Racho pulled out his hands
from his pocket, a white envelope fell yielding a sachet of shabu.

In holding that the warrantless search was invalid, this Court observed that
Racho was not "committing a crime in the presence of the police officers" at
the time he was apprehended. Moreover, Racho's arrest was solely based on
a tip. Although there are cases stating that reliable information is sufficient
to justify a warrantless search incidental to a lawful arrest, they
were covered under the other exceptions to the rule on warrantless searches.
(G.R. No. 200370)