Stop-and-frisk rule vs. search incidental to a lawful arrest

By Atty. Eduardo T. Reyes III

The grisly report of a Hong Kong model being dismembered, and her body parts placed in a soup pot is a stark reminder that gruesome crimes happen, and that law enforcement must always be on their toes to prevent these from happening or immediately arrest the perpetrators in the name of justice.

Yet on the balance, overzealousness in the arrest of mere suspected criminals must also be put in check. Freedoms and civil liberties could be imperiled by the failure to reckon the jurisprudential guidelines to be observed prior to an arrest and search of a suspect.

Thus, for both the police who are tasked to prevent crimes from occurring and civilians who are entitled to their civil liberties, knowing the law could prevent a clash between law enforcement and enjoyment of freedoms.

First, the stop-and-frisk rule. Can the police just accost a passer-by and pat or search him or her on the ground that it is “standard operating procedure”?

The answer is no.

In Minda Clemente y Diaz v. People of the Philippines, G.R. No. 243159 which was handed down on February 13, 2023, it was explained that the stop-and-frisk rule requires “a reasonable suspicion” that must be “based on experience” that “a crime is afoot” or is about to happen. Thus, it must not be implemented as a mere standard operating procedure or SOP. It was held:

Stop-and-frisk rule

“A search incidental to a lawful arrest and a stop and frisk search are often confused with each other. However, We explained in Malacat v. Court of Appeals (Malacat) that these two types of warrantless searches “differ in terms of the requisite quantum of proof before they may be validly effected and in their allowable scope.

X x x

Otherwise stated, a stop and frisk search is allowed only under specific and limited circumstances: “(1) it should be allowed only on the basis of the police officer’s reasonable suspicion, in light of his or her experience, that criminal activity may be afoot and that the persons with whom he/she is dealing may be armed and presently dangerous; (2) the search must only be a carefully limited search of the outer clothing; and (3) it must be conducted for the purpose of discovering weapons which might be used to assault him/her or other persons in the area”. 

                In turn, there is a valid warrantless arrest known as “search incidental to a lawful arrest”. As the phrase connotes, the search must only be a logical consequence of a valid arrest. Stated differently, if the arrest is not valid or legal to begin with, then the search is not valid or legal as well.

Still in Minda Clemente, it was held that:

Search incidental to a lawful arrest.

“A valid warrantless arrest, which justifies a subsequent search, is carried out under the parameters of Sec. 5 (a), Rule 113 of the Rules of Court. This rule requires that the arresting officer must have been spurred by probable cause to arrest a person caught in flagrante delicto. Case law requires two requisites for a valid in flagrante delicto warrantless arrest, namely that: (a) 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 (b) such overt act is done in the presence or within the view of the arresting officer. Accordingly, the law requires that there should first be a lawful warrantless arrest before a search can be made. The process cannot be reversed”.

In fine, people’s freedoms cannot simply be curtailed on account of some standard operating procedure. Instead, to bother a private citizen requires a reasonable cause. It must proceed from a reasonable belief that a crime is about to be committed, is being committed, or was just committed.

In the absence of such reasonable cause, the private citizen’s right to remain private and in peace, must not be disturbed.

Especially for the lawyers, paraphrasing the words of the great Clarence Darrow, to fight for other people’s freedom is just as important as to protect one’s own.

(The author is the senior partner of ET Reyes III & Associates– a law firm based in Iloilo City. He is a litigation attorney, a law professor and a law book author. His website is