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CR No. The Information states that on or about August 20, , the petitioner was found to possess one heat-sealed transparent plastic sachet containing 0. The petitioner pleaded not guilty during arraignment. Alfredo C. While proceeding to the area onboard a mobile hunter, they saw the petitioner crossing a ' No Jaywalking ' portion of Roxas Boulevard. They immediately accosted him and told him to cross at the pedestrian crossing area. The petitioner picked up something from the ground, prompting Tangcoy to frisk him resulting in the recovery of a knife. Thereafter, Tangcoy conducted a thorough search on the petitioner's body and found and confiscated a plastic sachet containing what he suspected as shabu. Tangcoy and Tan executed a sinumpaang salaysay on the incident. After crossing the overpass, a policeman and a civilian stopped and frisked him despite his refusal. They poked a gun at him, accused him of being a holdupper , and forced him to go with them. They also confiscated the kitchen knife, which he carried to cut cords. He was likewise investigated for alleged possession of shabu and detained for one day. The RTC also noted that PO1 Eric Tan was straightforward in giving his testimony and he did not show any ill motive in arresting the petitioner. This defense is weak especially when it is not substantiated by clear and convincing evidence as in this case. According to the CA, Section 5, paragraph a of Rule of the Revised Rules of Criminal Procedure enumerates the circumstances when a warrantless arrest is legal, valid, and proper. One of these is when the person to be arrested has committed, is actually committing, or is attempting to commit an offense in the presence of a peace officer or a private person. The Petitioner's Position The petitioner argues that the CA erred in affirming his conviction on the following grounds: First , the shabu , which was allegedly recovered from the petitioner, is inadmissible as evidence because it was obtained as a result of his unlawful arrest and in violation of his right against unreasonable search and seizure. The petitioner has not committed, was not committing and was not attempting to commit any crime at the time of his arrest. In fact, no report or criminal charge was filed against him for the alleged jaywalking. The alleged confiscated drug has nothing to do with the offense of jaywalking. Consequently, the sole testimony of Tan cannot sustain the petitioner's conviction beyond reasonable doubt. The Respondent's Position In his Comment, the respondent argues that the guilt of the petitioner was conclusively established beyond reasonable doubt. According to the respondent, the petitioner can no longer question his arrest after voluntarily submitting himself to the jurisdiction of the trial court when he entered his plea of not guilty and when he testified in court. The prosecution failed to prove that a lawful warrantless arrest preceded the search conducted on the petitioner's body. The Constitution guarantees the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures. Any evidence obtained in violation of these rights shall be inadmissible for any purpose in any proceeding. While the power to search and seize may at times be necessary to the public welfare, the exercise of this power and the implementation of the law should not violate the constitutional rights of the citizens. For this purpose, the law requires that there be first a lawful arrest before a search can be made — the process cannot be reversed. In the present case, the respondent alleged that the petitioner's warrantless arrest was due to his commission of jaywalking in flagrante delicto and in the presence of Tan and Tangcoy. To constitute a valid in flagrante delicto arrest, 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 of or within the view of the arresting officer. For, without a valid warrantless arrest, the alleged confiscation of the shabu resulting from a warrantless search on the petitioner's body is surely a violation of his constitutional right against unlawful search and seizure. As a consequence, the alleged shabu shall be inadmissible as evidence against him. On this point, we find that aside from the bare testimony of Tan as quoted by the CA in its decision, the prosecution did not proffer any other proof to establish that the requirements for a valid in flagrante delicto arrest were complied with. Particularly, the prosecution failed to prove that the petitioner was committing a crime. The respondent failed to specifically identify the area where the petitioner allegedly crossed. Thus, Tan merely stated that the petitioner 'crossed the street of Roxas Boulevard, in a place not designated for crossing. The petitioner was also not charged of jaywalking. These are pieces of evidence that could have supported the conclusion that indeed the petitioner was committing a crime of jaywalking and therefore, the subsequent arrest and search on his person was valid. Unfortunately, the prosecution failed to prove this in the present case. We clarify, however, that the filing of a criminal charge is not a condition precedent to prove a valid warrantless arrest. Even if there is a criminal charge against an accused, the prosecution is not relieved from its burden to prove that there was indeed a valid warrantless arrest preceding the warrantless search that produced the corpus delicti of the crime. Neither can the presumption of regularity in the performance of official duty save the prosecution's lack of evidence to prove the warrantless arrest and search. This presumption cannot overcome the presumption of innocence or constitute proof of guilt beyond reasonable doubt. Among the constitutional rights enjoyed by an accused, the most primordial yet often disregarded is the presumption of innocence. This elementary principle accords every accused the right to be presumed innocent until the contrary is proven beyond reasonable doubt; and the burden of proving the guilt of the accused rests upon the prosecution. 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. It is effected by an actual restraint of the person to be arrested or by that person's voluntary submission to the custody of the one making the arrest. Neither the 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. A: At in the evening of August 20, , we saw a male person crossed the street of Roxas Boulevard, in a place not designated for crossing. Q: What did you do when you saw this person crossed the street of Roxas Boulevard, in a place not designated for crossing? A: We accosted him. Q: How did you accost that person? A: We accosted him and pointed to him the right place for crossing. Pero napansin namin siya na parang may kinukuha, so he was frisked by Ronald Tangcoy and a knife was recovered from his possession. Q: After a knife was recovered by your companions sic from that person who allegedly crossed the wrong side of the street, what happened after that? A: After recovering the knife, nakaalalay lang ako and he was frisked again by Tangcoy and a plastic sachet was recovered from his possession. Q: Did you know the contents of that plastic sachet which your companion recovered from that person who crossed the wrong side of the street? A: Yes, sir. Q: What about the contents? A: Suspected shabu or methylamphetamine hydrochloride. Q: After the drug was recovered from the possession of that man, what did you do? Q: Did you come to know the name of that person whom you arrested in the morning of August 20, ? Q: What is his name? A: Ongcoma Hadji Omar, sir. When Tan and Tangcoy allegedly saw the petitioner jaywalking, they did not arrest him but accosted him and pointed to him the right place for crossing. In fact, according to the RTC, Tan and Tangcoy ' immediately accosted him and told him to cross \[at\] the designated area. This lack of intent to arrest him was bolstered by the fact that there was no criminal charge that was filed against the petitioner for crossing a 'no jaywalking' area. From Tan's testimony, the intent to arrest the petitioner only came after they allegedly confiscated the shabu from the petitioner, for which they informed him of his constitutional rights and brought him to the police station. The indispensability of the intent to arrest an accused in a warrantless search incident to a lawful arrest was emphasized in Luz vs. People of the Philippines. According to the Court, 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. In the light of the discussion above, the respondent's argument that there was a lawful search incident to a lawful warrantless arrest for jaywalking appears to be an afterthought in order to justify a warrantless search conducted on the person of the petitioner. In fact, the illegality of the search for the shabu is further highlighted when it was not recovered immediately after the alleged lawful arrest, if there was any, but only after the initial search resulted in the recovery of the knife. Thereafter, according to Tan, Tangcoy conducted another search on the person of the petitioner resulting in the alleged confiscation of the shabu. Clearly, the petitioner's right to be secure in his person was callously brushed aside twice by the arresting police officers. We agree with the respondent that the petitioner did not timely object to the irregularity of his arrest before his arraignment as required by the Rules. In addition, he actively participated in the trial of the case. As a result, the petitioner is deemed to have submitted to the jurisdiction of the trial court, thereby curing any defect in his arrest. However, this waiver to question an illegal arrest only affects the jurisdiction of the court over his person. It is well-settled that a waiver of an illegal, warrantless arrest does not carry with it a waiver of the inadmissibility of evidence seized during an illegal warrantless arrest. Tayag and concurred in by Associate Justice Rodrigo V. Cosico and Hakim S. Abdulwahid, rollo , pp. Possession of Dangerous Drugs. Otherwise, if the quantity involved is less than the foregoing quantities, the penalties shall be graduated as follows: 1 Life imprisonment and a fine ranging from Four hundred thousand pesos P, Delos Reyes, et al. Arrest without warrant; when lawful. People of the Philippines , G. View printer friendly version. The prosecution failed to prove that. At in the evening of August 20, , we saw a male person crossed the street of Roxas Boulevard, in a place not designated for crossing. What did you do when you saw this person crossed the street of Roxas Boulevard, in a place not designated for crossing? We accosted him and pointed to him the right place for crossing. After a knife was recovered by your companions sic from that person who allegedly crossed the wrong side of the street, what happened after that? After recovering the knife, nakaalalay lang ako and he was frisked again by Tangcoy and a plastic sachet was recovered from his possession. Did you know the contents of that plastic sachet which your companion recovered from that person who crossed the wrong side of the street? After the drug was recovered from the possession of that man, what did you do? Did you come to know the name of that person whom you arrested in the morning of August 20, ? What happened after you obeyed the order of your immediate superior?

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