Warrantless Arrest in Drug Buy-Bust Operations (Philippine Context)

This article explains the legal framework, doctrines, and practical rules governing warrantless arrests made during drug buy-bust operations in the Philippines. It’s designed for lawyers, law enforcers, and litigants who need a comprehensive, practice-oriented reference.

1) The Statutory and Constitutional Backbone

Constitutional guarantees.

Right against unreasonable searches and seizures (Art. III, Sec. 2).
Exclusionary rule for illegally obtained evidence (Art. III, Sec. 3[2]).
Rights of persons under custodial investigation (Art. III, Sec. 12): to be informed of rights, to remain silent, to counsel, and to be free from coercion; any waiver must be in writing and in the presence of counsel.

Rules of Court—warrantless arrest.

Rule 113, Sec. 5 recognizes three instances:
1. In flagrante delicto: The person is caught in the very act of committing an offense in the presence of the arresting officer.
2. Hot pursuit: An offense has just been committed and the officer has personal knowledge of facts indicating the person arrested committed it.
3. Escapee: The person is an escapee from custody.

Comprehensive Dangerous Drugs Act (R.A. 9165, as amended by R.A. 10640).

Sec. 5 (Sale/Trading): Life imprisonment and fine; an offense typically consummated the moment there is delivery of the drug and payment/consideration.
Sec. 21 (Chain of Custody): Requires immediate marking, inventory, and photographing of seized items in the presence of the accused and two witnesses (after R.A. 10640):
- An elected public official, and
- A representative of the National Prosecution Service (DOJ) or the media. Non-compliance may be excused only upon justifiable grounds and proof that the integrity and evidentiary value of the seized items were preserved.

2) Why a Buy-Bust Allows Warrantless Arrest

A buy-bust is a form of entrapment where law enforcers, often through a poseur-buyer, arrange a purchase to catch a seller in flagrante delicto. The Supreme Court has long upheld buy-bust operations as a legitimate method of apprehension. The cornerstone is Rule 113, Sec. 5(a): during the sale, the offense unfolds in the presence of the officer (often the poseur-buyer). Hence, no arrest warrant is required.

Key points:

Entrapment vs. Instigation.
- Entrapment (law enforcers set a trap to catch an offender) is lawful.
- Instigation (officers induce one not predisposed to commit a crime) is unlawful and exculpatory. Courts examine whether the accused was already predisposed and whether the police merely provided an opportunity.
Objective test of buy-bust legality. Courts assess the details: the initial contact; offer and acceptance; the actual exchange (delivery of drug and receipt of consideration); the marking and seizure; arrest timing; and how evidence flowed through the chain of custody. Credible, coherent narration—usually by the poseur-buyer and arresting team—is crucial.

3) Elements the Prosecution Must Prove (Illegal Sale)

For Sec. 5 (sale of dangerous drugs), prosecution must establish:

Identity of the buyer and seller, the object (dangerous drug), and the consideration (money or other item of value); and
Delivery of the drug to the buyer and payment by the buyer.

The drug itself (corpus delicti) must be presented and proven to be the same item seized, through an unbroken chain of custody.

4) The Chain of Custody: Make-or-Break

Four critical links (commonly used framework):

Seizure and immediate marking of the item by the apprehending officer at the place of arrest (or as soon as practicable).
Turnover to the investigating officer.
Delivery to the forensic chemist, with receipt; laboratory examination and issuance of chemistry report.
Presentation in court of the same marked item, with every custodian testifying (or providing proper documentation) to maintain the evidentiary chain.

Witnesses and documentation (Sec. 21 as amended):

Inventory and photographs must be done immediately after seizure at the place of arrest or at the nearest police station/office.
Presence of the accused (or representative/counsel), an elected public official, and a DOJ-NPS representative or a media representative.
Justifiable grounds for any deviation must be affirmatively shown, and officers must demonstrate earnest efforts to secure the required witnesses (e.g., prior coordination calls, letters, arrival logs).
The government must prove that no substitution or alteration of the seized items occurred.

Practical litigation notes:

Minor lapses do not automatically result in acquittal if the integrity and identity of the drug are reliably preserved and reasons for non-compliance are credible and documented.
Conversely, unexplained or material deviations (e.g., no marking, missing witnesses with no effort to secure them, broken seals) are often fatal.

5) Search, Seizure, and Incidentals to a Lawful Arrest

Scope of searches in buy-busts:

Incident to lawful arrest: Officers may search the person of the arrestee and areas within immediate control for contraband, buy-bust money (marked bills), or weapons.
Plain view doctrine may apply when incriminating items are immediately apparent and the officers are lawfully present.
Searches beyond these bounds (e.g., distant containers, homes, or vehicles) require a warrant or another specific exception (e.g., consent, moving vehicle exception, customs searches, checkpoints with valid routine inspection, etc.).

Marked money and other items.

Presentation of marked money helps corroborate the sale but is not indispensable if the exchange and drug identity are independently proven.

6) The Role of PDEA Coordination and Pre-Ops Reports

Coordination with PDEA (R.A. 9165, Sec. 86) and pre-operation reports are part of best practices and are often presented to bolster credibility. However:

Lack of PDEA coordination does not, by itself, invalidate a buy-bust if the elements of the offense and chain of custody are properly proven.
Courts may treat absence of coordination as a credibility factor but not a standalone ground for acquittal.

7) Validity of the Warrantless Arrest

A buy-bust arrest is valid under in flagrante delicto when:

The officer personally witnessed the overt acts constituting the sale/delivery of the drug; and
The arrest immediately follows the transaction.

Hot pursuit is less common in buy-busts but may validate arrests of fleeing cohorts if:

The sale has just been committed, and
Officers have personal knowledge of facts indicating the person arrested participated.

Effect of an illegal arrest.

The illegality of the arrest does not automatically void a conviction; the remedy is to object before arraignment (e.g., move to quash arrest/information).
However, evidence obtained through an illegal search (not merely an illegal arrest) may be suppressed under the exclusionary rule if timely objected to.

8) Custodial Rights and Inquest

After a warrantless arrest for a buy-bust:

The accused must be informed of rights and provided counsel for any questioning.
Article 125, Revised Penal Code timelines apply (delivery to the proper judicial authorities within specific hours depending on the offense). Drug sale (a grave offense) generally falls under the 36-hour cap.
Cases proceed via inquest; if the accused signs a waiver of Art. 125, with counsel, a regular preliminary investigation may follow within set periods.

9) Common Prosecution Pitfalls (and Defense Angles)

Chain-of-custody gaps: No immediate marking; missing/incorrect witnesses; undocumented transfers; unsealed or tampered evidence; mismatched labels.
Unconvincing buy-bust narrative: Vague on who said what, when, and where; no clear delivery/payment; contradictions about who seized/marked the item.
Instigation: Evidence suggesting police (or informant) coerced or lured an otherwise innocent person to commit a crime.
Unlawful search beyond the arrest: Evidence from overbroad searches may be excluded.
Failure to present poseur-buyer: Not always fatal, but the State must adequately explain and corroborate the transaction through other competent witnesses and exhibits.
Poor documentation of “earnest efforts” to secure Sec. 21 witnesses: Courts now expect affirmative proof (calls, letters, logs, reasons for unavailability).

10) Practical Checklist for Law Enforcers

Before the operation

Coordinate with PDEA; prepare pre-operation and coordination reports.
Prepare marked money (record serial numbers); body cameras if available.
Brief all team members; designate poseur-buyer, arresting and seizing officers, evidence custodian.

During the transaction

Ensure the actual exchange occurs in the presence of officers.
Upon signal, arrest immediately; announce authority and inform rights.
Seize and mark the drugs immediately; secure marked money and paraphernalia.

After seizure

Conduct inventory and photographs immediately at the scene or nearest station, in the presence of the accused and two required witnesses (elected official + DOJ/NPS or media).
Document any unavailability of witnesses and efforts to secure them.
Prepare chain-of-custody forms, turnover receipts, and deliver to the forensic lab without undue delay.
Keep all seals intact; log every transfer.

For prosecutors

Establish the objective details of the buy-bust through direct and cross-resistant testimony.
Lay every link in the chain using receipts, logbooks, chemistry report, and identification of marked items in court.
If there were deviations, plead and prove justifiable grounds and integrity preservation.

11) Practical Checklist for Defense Counsel

Challenge in flagrante basis: Was the officer truly present for the delivery and payment?
Interrogate the chain: Who marked? When and where? Which witnesses were present? Any documented efforts to secure them?
Move to suppress evidence from unlawful searches beyond the arrest’s scope.
Probe entrapment vs instigation: Was the client predisposed? Who initiated?
Timing objections: Raise illegal arrest issues before arraignment; file motions to quash/suppress timely.
Scrutinize forensics: Seal integrity, custody logs, lab handling, discrepancies between request, result, and presented item.

12) Bail, Penalties, and Collateral Issues

Bail: For Sec. 5 sale, non-bailable if evidence of guilt is strong; otherwise, bail may be granted.
Penalties: Life imprisonment and fine (death penalty barred by R.A. 9346).
Civil/administrative: Convictions often trigger asset forfeiture; officers face liability for rights violations (administrative/criminal/civil).

13) Sample Litigation Outlines

A) Prosecution direct of poseur-buyer (high-level):

Identity, role, and briefing; pre-ops/PDEA coordination.
Initial contact with accused (where/how).
Terms of sale; hand-off of marked money; delivery of sachet.
Arrest signal; arrest; reading of rights.
Immediate marking; inventory and photos with witnesses; documents signed.
Turnover to investigator; delivery to lab; receipt and results.
Identification in court of the same marked item and the accused.

B) Defense cross themes:

Inconsistencies in who, when, where of marking and inventory.
Witness presence and earnest efforts gaps.
Unexplained delays or seal breaks.
Overreach in search scope; lack of marked money recovery (if relied upon).
Inducement by informant/police.

14) Takeaways

A buy-bust arrest without a warrant is valid when the sale is personally witnessed by officers—in flagrante delicto.
The case lives or dies on chain-of-custody compliance and a credible, detailed narration of the transaction.
R.A. 10640’s two-witness rule tightened expectations: document your efforts and reasons for any deviations.
Entrapment is lawful; instigation is not. The objective test—focusing on concrete, verifiable details—guides courts in separating the two.

Disclaimer

This is a general legal reference. Specific cases turn on their facts, documentary trails, and testimony. For concrete matters, consult counsel and the latest jurisprudence and issuances.