Dear PAO,

Someone shoplifted from my store the other day. I did not catch him in the act of stealing, and I only learned about it after reviewing my store’s CCTV footage of that day. If this person returns to my store, can I apprehend him? Please advise, as I really want to send this person to jail so that he can pay for his criminal liability.

AR

Dear AR,

Shoplifting typically involves the taking of personal property that is owned by the proprietor of a shop, store, or any other similar establishment. It is Theft, as defined under Article 308 of the Revised Penal Code of the Philippines, as the taking is usually done with intent to gain, but without using any violence against or intimidation of persons nor force upon things, and without the consent of the proprietor.

As a general rule, a person can only be validly arrested for a crime if such arrest is done by virtue of a warrant of arrest, in consonance with the constitutional guarantee that is explicitly provided under Section 2, Article III of the 1987 Philippine Constitution which states that:

“SECTION 2. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizure of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized.”

Nevertheless, persons who commit or have committed a crime, such as shoplifters, may be arrested by a peace officer or even by a private person without the necessity of a warrant if any of the instances mentioned under Section 5, Rule 113, Revised Rules on Criminal Procedure are present, specifically:

“Sec. 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.” (Emphasis supplied)

In in flagrante delicto arrests, as stated under Section 5 (a), Rule 113, Id, the culprit is “caught-in-the-act” after he has committed, while committing, or attempting to commit the crime, for which reason his or her timely arrest is justified. In hot pursuit arrests, as stated under Section 5 (b), Rule 113, Id, two elements must be present in order for the arrest to be considered valid: (1) personal knowledge of the person arresting as to the commission of the crime of the person sought to be arrested; and (2) immediacy, that is, no considerable time has elapsed between the time the crime was committed and the actual arrest. As explained by the Supreme Court, through Senior Associate Justice Marvic M.V.F. Leonen, in the case of Jamel M. Adoma v. People of the Philippines (GR 240126, April 12, 2023):

“For a valid arrest effected in hot pursuit, it must be shown that the police officers ‘have personal knowledge of facts, based on their observation, that the person sought to be arrested has just committed a crime.’ Equally important is the element of immediacy from when the crime is committed up to the point of arrest. These will produce the required probable cause to justify the hot pursuit arrest.”

Taking the foregoing into consideration, we submit that you cannot simply apprehend the person whom you believe has shoplifted from your store without a warrant of arrest if a considerable amount of time has already passed or if it has been days since the time he has actually committed the act of theft up to the time of the intended arrest because the situation will no longer fall under any of the exceptions provided under Section 5, Rule 113 of the Revised Rules on Criminal Procedure.

What you may do at this point is to file a police report relative to the shoplifting incident, find out the details of the alleged shoplifter, particularly his name and address, and thereafter file a complaint for Theft against him before the prosecutor’s office or the court where the alleged shoplifting incident transpired in order to commence the criminal proceeding against him.

We hope that we were able to answer your queries. Please be reminded that this advice is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.

Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to [email protected]