Crimpro 113

G.R. Nos.
107200-03 November 9, 1993

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
MANUEL DE GUIA y SAMONTE, defendant-appellant.
The Solicitor General for plaintiff-appellee.
Ricardo D. Latorre for accused-appellant.
PUNO, J.:
Illegal recruiters constitute one of the worst vultures of our society today. They prey on the gullible,
and often, they victimize the already marginalized Filipinos who will do anything to improve their
economic status. The case before us involves one of their kind.
Accused-appellant Manuel de Guia y Samonte was convicted by the Regional Trial Court of Manila,
Branch XLI, 1of the crime of Illegal Recruitment in large scale 2 and three (3) counts of Estafa, 3 in violation
of Article 38 of the Labor Code, as amended and Article 315 (2) (a) of the Revised Penal Code,
respectively.
The Information in each case reads as follows:
1. Criminal Case No. 92-103341:
That in (sic) or about and during the period comprised between May
23, 1991 and December 11, 1991, inclusive, in the City of Manila,
Philippines, the said accused, conspiring and confederating with one
whose true name, identity and present whereabouts are still
(unknown) and mutually helping each other, representing himself to
have the capacity to contract, enlist and transport Filipino workers for
employment abroad, did then and there wilfully and unlawfully for a
fee, recruit and promise employment/job placement abroad to Cirilo
Lising y Mercado, Monteza (sic) Gazmin y Pascual, Leopoldo Realino
y Arceo and Jesus Sumalinog y Carin, without first having secured
the required license or authority from the Department of Labor and
Employment.
Contrary to law. (Rollo, p. 4)
That on or about November 24, 1991, in the City of Manila, the said
(accused,) conspiring and confederating with one whose true name,
identity and present whereabouts are still unknown, and mutually
helping each other, did then and there wilfully, unlawfully and
feloniously defraud Leopoldo Realino y Arceo in the following

manner, to wit: the said accused by means of false manifestations
and fraudulent representation which he made to said Leopoldo
Realino y Arceo to the effect that he had the proper (authority) and
capacity to recruit and employ said Leopoldo Realino y Arceo as
factory worker in Japan and could facilitate the processing of the
pertinent papers if given the necessary amount to meet the
requirements thereof, and by means of other similar deceits, induced
and succeeded in inducing said Leopoldo Realino y Arceo to give and
deliver, as in fact he gave and delivered to said accused the amount
of P120,000.00 on the strength of said manifestations and
representations, said accused well knowing that the same were false
and fraudulent and were made solely to obtain, as in fact he did
obtain the amount of P120,000.00, which amount once in his
possession, with intent to defraud he, wilfully, unlawfully and
feloniously misappropriated, misapplied and converted to his own
personal use and benefit, to the damage and prejudice of said
Leopoldo Realino y Arceo in the aforesaid amount of P20,000.00
Philippine Currency. (Rollo, pp. 5-6)
That on or about and during the period comprised between October 3
and December 11, 1991, inclusive, in the City of Manila, Philippines,
the said accused conspiring and confederating with one whose true
name, identity and presents whereabouts are still unknown and
mutually helping each other did then and there wilfully, unlawfully and
feloniously defraud Jesus Sumalinog y Carin (in) the following
and fraudulent representation which they made to said Jesus
Sumalinog y Carin to the effect that he had the proper (authority) and
capacity to recruit and employ said Jesus Sumalinog y Carin as . . .
contract worker in Japan and could facilitate the processing of the
pertinent papers if given the necessary amount to meet the
requirements thereof, and by means of other similar deceits, induced
and succeeded in inducing said Jesus Sumalinog y Carin to give and
deliver, as in fact he gave and delivered to said accused the amount
of P50,000.00 on the strength of said manifestations and
representation, said accused well knowing that the same were false
and fraudulent and were made solely to obtain, as in fact he did
obtain the amount of P50,000.00 which amount once in his
possession, with intent to defraud he, willfully, unlawfully and
feloniously misappropriated, misapplied and converted to his own
persona use and benefit, to the damage and prejudice of said Jesus
Sumalinog y Carin in the aforesaid amount of P50,000.00 Philippine
Currency. (Rollo, pp. 7-8)
That on May 23, 1991, in the City of Manila, Philippines, the said
accused, conspiring and confederating with one whose true name,
identity and present whereabouts are still unknown and mutually
helping each other did then and there willfully, unlawfully and
feloniously defraud Monteza (sic) Gazmin y Pascual in the following
and fraudulent representation which he made to said Montesa
Gazmin y Pascual to the effect that he had the power and capacity to
recruit and employ said Montesa Gazmin y Pascual as factory worker
in Korea and could facilitate the processing of the pertinent papers if
given the necessary amount to meet the requirements thereof, and
by means of other similar decits, induced and succeeded in inducing
said Montesa Gazmin y Pascual to give and deliver, as in fact she
gave and delivered to said accused the amount of P30,000.00 on the
strength of said manifestations and representations, said accused
well knowing that the same were false and fraudulent and were made
solely to obtain, as in fact he did obtain the amount of P30,000.00
which amount once in his possession, with intent to defraud he,
wilfully, unlawfully and feloniously misappropriated, misapplied and
converted to his own personal use and benefit, to the damage and
prejudice of said Montesa Gazmin y Pascual in the aforesaid amount
of P(30,000.00) Philippine Currency. (Rollo, pp. 9-10)
Upon arraignment, the accused pleaded not guilty to the offenses charged. The cases were tried
jointly.
The prosecution presented the four (4) private complainants (Cirilo Lisong, Montessa Gasmin,
Leopoldo Realino and Jesus Sumalinog) as witnesses. They testified as follows:
CIRILO LISING, a 41-year old farmer from Gapan, Nueva Ecija testified that in August 1991, he was
summoned by his brother-in-law, Jose (Jhun) Cruz, to fix the septic tank in his house. 4 There, he was
introduced to the accused and a certain Loida de Guia who represented themselves to be husband and
wife. The two were boarders in Cruz' house. 5While fixing the tank, the couple engaged him in a
conversation and told him they could facilitate his employment in Korea. He was informed that the
placement fee was forty thousand pesos (P40,000.00). Relying on the couple's representations, he
decided to try his luck abroad. The couple promised him a job as factory worker in Korea with an income
of $500.00 per month. They asked him to prepare an initial amount of nine thousand seven hundred
pesos (P9,700.00) for his plane fare. They told him that he could pay for the balance of the fee when he
reach Korea for upon his arrival, he would receive a two-months cash advance on his salary. He agreed. 6
On August 12, 1991, he submitted to the accused his passport and biodata in their office, ML
Promotions, at Room 102, Marrieta Apt., 1200 J. Bocobo Street, Ermita, Manila. He handed the
amount of P9,700.00 to Loida and the latter issued and signed a receipt therefore. 7
Lising, however, failed to leave for Korea. He then verified the status of the agency from the POEA
and discovered that the accused and Loida were not licensed recruiters. 8 Thus, on February 13, 1992,
he complained to CIS PO3 Romeo M. Cerezo and gave a written statement. 9
On cross-examination, Lising produced two (2) calling cards of ML Promotions: one showed Loida
de Guia as the general manager while the other showed the accused as its travel consultant. 10
MONTESA GASMIN, a 19-year old, high school graduate from San Juan, Tarlac testified that she
learned from her cousin, Joey Lino, that the accused and Loida de Guia were engaged in job
placement overseas. On May 15, 1991, she asked her cousin to accompany her to the couple's
Ermita office where the accused informed her that they deploy workers to Korea. Relying on said
representation, she applied as a factory worker in Korea and accomplished the corresponding
application form. She was told that she would earn $500.00 per month and was asked to pay thirty
thousand pesos (P30,000.00) to cover her traveling expenses. 11
She gave the couple the required amount in two (2) installments, viz: P10,000.00 on May 23, 1991
and P20,000.00 on June 4, 1991, as evidence by two (2) receipts of even date. 12 She gave the
money to Loida who signed the receipts in her presence. 13 The couple assured her that she could leave
for Korea by the end of June 1991. The promise proved to be false. On July 14, 1991, she again went to
the couple's office in Ermita to follow-up her departure. Again, the spouses assured her that she would be
allow to leave on the succeeding week. Nothing came out of the promise. Thus, together with the other
private complainants, she reported the matter to the CIS Camp Crame where she executed her written
statement. 14
LEOPOLDO REALINO, a 42 year-old driver, residing at Balibago, Angeles City testified that her
brother, Roger, brought him to the couple's recruitment office in Ermita where he met the accused.
He inquired from the accused whether he could work out his employment in Japan. The accused
replied in the affirmative. Still undecided, he told the accused he would just come back. 15
Sometime in August 1991, he returned to their Ermita office and applied as a contract worker in
Japan. The accused told him to prepare one hundred twenty thousand pesos (P120,000.00). He was
also asked to fill up and sign an application form. 16
On November 4, 1991, Leopoldo went to their office and handed the money to the accused. The
accused then ordered Loida, whom Leopoldo met for the first time, to prepare the necessary
receipt. 17 The accused failed to employ him in Japan despite repeated promises. He demanded the
return of his money but to no avail. He, together with his companions, went to no avail. He, together with
his companions, went to the POEA where they discovered that the accused was not licensed to recruit
workers for overseas employment. With the intention of confronting the accused, they proceeded to their
Ermita office but were informed that the accused was already detained at Camp Crame. Thus, they went
to Camp Crame where they gave their statements. 18
The last witness for the prosecution was JESUS SUMALINOG, an industrial electrician from Makati.
He testified that he first met the accused in May 1991 in the accused's Ermita office where the
inquired about the possibility of employment of Japan. The accused interviewed him. The accused
told him that the cost of processing his papers would run from P85,000.00 to P95,000.00. However,
when Sumalinog intimated that he could only afford to pay P50,000.00, the accused conferred with
Loida, who was introduced by the accused as his wife. The couple then agreed to be paid
P50,000.00 and he was told to fill up an application form. He was informed that he could work as a
contract worker in a computer firm where he would earn $1,200.00 per month. The couple asked him
to prepare the money. 19
Sumalinog gave the money to the accused in four (4) installments, thus: P10,000.00 on October 3,
October 30, November 18 and November 21, 1991; P8,000.00 on November 25, 1991; and finally,
P2,000.00 on December 11, 1991. In each instance, the accused instructed Loida to prepare the
receipts and the same were duly issued and signed by Loida. 20
The two assured Sumalinog that he could leave after two (2) weeks. Failing to leave as promised, he
was again made to wait for another two (2) weeks. Still, the accused did not make good with said
promise. 21
He then went to the POEA where he discovered that the accused was not licensed to recruit workers
for overseas employment. He sought the accused in his Ermita office but found out that the accused
was already in the custody of the CIS. He talked with the accused in Camp Crame and the latter
asked him not to file any complaint. The accused assured him that his money would be returned. He
did not head said request and filed the complaint at bar. 22
The evidence of the accused rests mainly on denial and alibi. He alleged that he was not a recruiter
but a driver by profession from 1970 up to December 1991. He contended that he could not have
participated in the recruitment of complainants since from May to December 1991, he was employed
at RTS Trading Associate Corporation where he reported for work from 7:00 o'clock in the morning
until 5:00 o'clock in the afternoon. He was employed as a driver delivering various merchandise for
the corporation. He alleged that after work, he always went straight home to Montalban, Rizal. 23
He further testified that his legal wife is Paula Diones and the he has no illicit relationship with one
Loida de Guia. According to the accused, he first met Loida in the latter's house in Baclaran in May
1991. He met Loida to secure overseas employment for his son. He again went to Loida's house in
July 1991 to follow-up his son's employment application. Further, the accused claimed that he met
the complainants only while he was already detained in Camp Crame. 24
Renato Samonte, owner of RTS Trading and a childhood friend of the accused, corroborated his
alibi. He testified that the accused acted as his part-time driver from May 1991 until December
1991. 25
On the basis of the above evidence, the trial court found the accused guilty beyond reasonable
doubt of the crimes charged. The dispositive portion of the decision reads:
WHEREFORE, judgment is hereby rendered as follows:
1. In Crim. Case No. 92-103341, finding the accused Manuel de Guia y Samonte
guilty beyond reasonable doubt for (sic) the crime of Illegal Recruitment committed in
large scale and hereby sentences the said accused to suffer the penalty of life
imprisonment and for him to pay a fine of P100,000.00. The said accused is further
hereby ordered to pay the complainant Cirilo Lising the sum of P9,700.00 as and by
way of actual damage;
2. In Crim. Case No. 92-103342, finding the accused Manuel Guia y Samonte guilty
beyond reasonable doubt for (sic) the crime of Estafa and hereby sentences the said
accused to suffer an indeterminate sentence ranging from Eight (8) years and One
(1) day of prision mayor as minimum to Fourteen (14) years Five (5) months and
Eleven (11) days of reclusion temporal as maximum and for the said accused to
indemnify the complainant Leopoldo Realino the sum of P120,000.00 as and by way
of actual damage;
3. In Crim. Case No. 92-103343, finding the accused Manuel de Guia y Samonte
guilty beyond reasonable doubt for (sic) the crime of Estafa and hereby sentences
the said accused to suffer an indeterminate sentence ranging from Three (3) years
Six (6) months and Twenty One (21) days ofprision correccional as minimum to
Seven (7) years Five (5) months and Eleven (11) days of prision mayor as maximum
and for the said accused to indemnify the complainant Jesus Sumalinog the sum of
P50,000.00 as and by way of actual damage; and
4. In Crim. case No. 92-103344, finding the accused Manuel de Guia y Samonte
guilty beyond reasonable doubt for (sic) the crime of Estafa and hereby sentences
the said accused to suffer an indeterminate sentence ranging from One (1) year
Eight (8) months and Twenty One (21) days ofprision correccional as minimum to
Five (5) years Five (5) months and Eleven (11) days also ofprision correccional as
maximum and for the said accused to indemnify the complainant Montesa P. Gazmin
the sum of P30,000.00 as and by way of actual damage.
Costs against the accused.
SO ORDERED. (Rollo, pp. 20-30)
Accused appealed to this Court raising the following assignment of errors:
I.
THE TRIAL COURT ERRED IN FAILING TO PROSECUTE THE REAL
MALEFACTOR, LOIDA DE GUIA, WHO SHOULD HAVE BEEN INCLUDED AS ONE
OF THE ACCUSED CONSIDERING THAT SHE ISSUED AND SIGNED THE
RECEIPTS EVIDENCING THE PAYMENTS ALLEGEDLY MADE BY THE PRIVATE
COMPLAINANTS AND WHICH WERE THE ONLY BASES FOR FINDING THE
ACCUSED GUILTY BEYOND REASONABLE DOUBT.
II.
THE TRIAL COURT ERRED IN CONVICTING THE ACCUSED BEYOND
REASONABLE DOUBT ON THE BASIS OF THE PAUCITY OF THE EVIDENCE
FOR THE PROSECUTION (receipts of payments) ALTHOUGH THE SAME ARE
INADMISSIBLE IN CHARACTER FOR BEING PURELY HEARSAY EVIDENCE.
III.
THE LOWER COURT ERRED IN (UP) HOLDING THE UNLAWFUL ARREST OF
THE ACCUSED IN A PUBLIC PLACE WITHOUT ANY WARRANT OR PROCESS
ISSUED BY A COMPETENT COURT.
The first (2) assigned errors are interrelated and shall be discussed together.
Appellant's position is that the real perpetrator of the charges imputed against him is Loida de Guia
whose signature appears on all the receipts issued to the complainants. He submits that his mere
presence at the Ermita office everytime the complainants paid the required fees cannot be made the
basis of a finding that he was involved in the illegal recruitment of private complainants. He contends
that Loida de Guia should have been charged as the proper accused.
Appellant's submission deserves scant consideration. To begin with, appellant did not raise this
argument in the trial court. It is too late to raise it on appeal. More importantly, the Informations
against the appellant show that the appellant was charged with "conspiring and confederating with
one whose true name, identity and present whereabouts are still unknown. . . . " From the evidence,
this co-conspirator is Loida de Guia who pretended to be the wife of herein appellant. There is no
obstacle for the State to charge this person who goes by the name of Loida de Guia as soon as her
true identity and address become known to the prosecution. Her non-prosecution at this state,
however, provides no ground for the appellant to fault the decision of the trial court convicting him.
Appellant also erred in dismissing the receipts issued by Loida de Guia as hearsay evidence. The
records show that Leopoldo Realino and Jesus Sumalinog testified that they personally handed the
money representing the required fees to herein appellant. The latter, in turn, instructed Loida to
prepare the corresponding receipts. This was after private complainants were made to believe that
the accused and Loida, aside from being husband and wife, were jointly operating the recruitment
business, with the former as travel consultant and the latter as the general manager. The evidence
shows that the receipts were signed by Loida in the presence of the complaining witnesses.
Consequently, Realino and Sumalinog had personal knowledge of the circumstances surrounding
the issuance of these receipts and their testimonies cannot be considered as hearsay evidence.
It is not also correct to argue that the guilt of the appellant was based alone on the receipts issued
by Loida de Guia. All the complaining witnesses testified that the accused took an active and direct
part in misrepresenting that he had the authority and the power to facilitate their employment abroad.
Aside from their testimonial evidence, calling cards were presented showing the accused to be the
Travel Consultant of said agency, with Loida as the General Manager. Moreover, the evidence also
showed that it was the accused who asked the applicants to fill up their applications and to prepare
their respective biodata. He also demanded from them varying amounts of money as processing
fees. All these show that the accused and Loida de Guia, who are not licensed recruiters, adopted a
systematic and elaborate scheme to defraud the complainants through false promises of jobs
abroad.
We are not also impressed by the defense of the appellant. Glaring inconsistencies marred his short
testimony. At one time, he testified that he was arrested by the CIS officers at a department store in
Ermita, Manila. 26 Later on, however, he stated that he was arrested in Marrieta Apartment, located at J.
Bocobo Street, Ermita, Manila. 27 He likewise claimed during the trial that he was not aware that Loida de
Guia had an office located in Marrieta Apartment, Ermita, 28 but at the same time, he raises in this appeal
the defense that he himself has been at the Ermita office to follow-up the job placement of his son in
Korea. 29
This is not all. Initially, appellant claimed during the trial that he could not have possibly been at the
Ermita office and received payments made by the complainants for he was then employed as a
professional driver for RTS Trading. On appeal, however, appellant would have Us believe that
during the period from May to December 1991 when private complainants went to the Ermita office
to file their application and pay the corresponding fees, accused-appellant "just happened to be
there" for he was himself following-up the job application of his son. 30
Appellant's corroborating witness, Renato Samonte, was equally unimpressive. In fact, Samonte's
testimony rendered the defense's theory more open to doubt. For one, his testimony that appellant
has been in his employ from May to December 1991 was not corroborated by any documentary
evidence, such as pay slip/pay roll, certification of SSS contributions and, hence, has little value.
Moreover, even assuming that appellant was a part-time driver of Samonte, the nature of his job
would not make it physically impossible for him to operate a recruitment business on the side. Time
and again, We have ruled that alibi, being a weak defense, must be proved by clear and convincing
evidence which should reasonably satisfy the Court of its veracity. 31
The credence of the private complainants is further bolstered by the admission of appellant himself
that he does not know of any ill-motive why they would hurl such serious accusations against
him. 32 The private complainants were all previously unknown to him.
Finally, appellant's alleged warrantless arrest will not exculpate him from his guilt as found by the
trial court. To be sure, the plea comes too late in the day. We note that upon arraignment, appellant
pleaded not guilty to the Information and did not raise the alleged illegality of his arrest. By so
pleading, he waived the alleged illegality of his arrest. 33 In People v. Briones, 34 we ruled that the
illegality of appellant's warrantless arrest cannot render all the other proceedings, including the appellant's
conviction, void. It cannot deprive the State of its right to convict the guilty when all the facts on record
point to his culpability.
WHEREFORE, premises considered, the decision of the court a quo finding the appellant Manuel de
Guia y Samonte guilty beyond reasonable doubt of Illegal Recruitment in Large Scale for having
engaged in the business of recruiting the four (4) private complainants for overseas employment
without any license or authority from the POEA and three (3) counts of Estafa, for falsely pretending
to possess power and qualification to deploy private complainants for overseas employment, is
hereby AFFIRMED in toto. Costs against appellant.
SO ORDERED.
G.R. No. 182601
November 10, 2014
JOEY M. PESTILOS, DWIGHT MACAPANAS, MIGUEL GACES, JERRY FERNANDEZ and

RONALD MUNOZ,Petitioners,
vs.
MORENO GENEROSO and PEOPLE OF THE PHILIPPINES, Respondents.
DECISION
BRION, J.:
We resolve the petition for review on certiorari under Rule 45 of the Rules of Court challenging the
decision dated January 21, 2008 and the resolution dated April 17, 2008 of the Court of Appeals
(CA) in CAG.R. SP No. 91541.
1
The appealed decision affirmed the Order dated March 16, 2005 of the Regional Trial Court (RTC),
Branch 96, Quezon City, denying Joey M. Pestilos, Dwight Macapanas, Miguel Gaces, Jerry
Fernandez, and Ronald Munoz's (petitioners) Urgent Motion for Regular Preliminary Investigation, as
well as their subsequent motion for reconsideration.
The Antecedent Facts
The records of the case reveal that on February 20, 2005, at around 3: 15 in the morning, an
altercation ensued between the petitioners and Atty. Moreno Generoso (Atty. Generoso) at
Kasiyahan Street, Barangay Holy Spirit, Quezon City where the petitioners and Atty. Generoso
reside.
3
Atty. Generoso called the Central Police District, Station 6 (Batas an Hills Police Station) to report
the incident. Acting on this report, Desk Officer SPOl Primitivo Monsalve (SPOJ Monsalve)
dispatched SP02 Dominador Javier (SP02 Javier) to go to the scene of the crime and to render
assistance. SP02 Javier, together with augmentation personnel from the Airforce, A2C Alano
Sayson and Airman Ruel Galvez, arrived at the scene of the crime less than one hour after the
alleged altercation and they saw Atty. Generoso badly beaten.
4
Atty. Generoso then pointed to the petitioners as those who mauled him. This prompted the police
officers to "invite" the petitioners to go to Batasan Hills Police Station for investigation. The
petitioners went with the police officers to Batasan Hills Police Station. At the inquest proceeding,
the City Prosecutor of Quezon City found that the petitioners stabbed Atty. Generoso with a bladed
weapon. Atty. Generoso fortunately survived the attack.
8
10
In an Information dated February 22, 2005, the petitioners were indicted for attempted murder
allegedly committed as follows:
That on or about the 20th h day of February, 2005, in Quezon City, Philippines, the said accused,
conspiring together, confederating with and mutually helping one another, with intent to kill, qualified
with evident premeditation, treachery and taking advantage of superior strength, did then and there,
willfully, unlawfully and feloniously commence the commission of the crime of Murder directly by
overt acts, by then and there stabbing one Atty. MORENO GENEROSO y FRANCO, with a bladed
weapon, but said accused were not able to perform all the acts of execution which would produce
the crime of Murder by reason of some cause/s or accident other than their own spontaneous
desistance, that is, said complainant was able to parry the attack, to his damage and prejudice.
CONTRARY TO LAW.
11
On March 7, 2005, the petitioners filed an Urgent Motion for Regular Preliminary Investigation on
the ground that they had not been lawfully arrested. They alleged that no valid warrantless arrest
took place since the police officers had no personal knowledge that they were the perpetrators of the
crime. They also claimed that they were just "invited" to the police station. Thus, the inquest
proceeding was improper, and a regular procedure for preliminary investigation should have been
performed pursuant to Rule 112 of the Rules of Court.
12
13
On March 16, 2005, the RTC issued its order denying the petitioners' Urgent Motion for Regular
Preliminary Investigation. The court likewise denied the petitioners' motion for reconsideration.
14
15
The petitioners challenged the lower court's ruling before the CA on a Rule 65 petition for certiorari.
They attributed grave abuse of discretion, amounting to lack or excess of jurisdiction, on the R TC for
the denial of their motion for preliminary investigation.
16
The Assailed CA Decision

On January 21, 2008, the CA issued its decision dismissing the petition for lack of merit. The CA
ruled that the word "invited" in the Affidavit of Arrest executed by SP02 Javier carried the meaning of
a command. The arresting officer clearly meant to arrest the petitioners to answer for the mauling of
Atty. Generoso. The CA also recognized that the arrest was pursuant to a valid warrantless arrest so
that an inquest proceeding was called for as a consequence. Thus, the R TC did not commit any
grave abuse of discretion in denying the Urgent Motion for Regular Preliminary Investigation.
17
The CA saw no merit in the petitioners' argument that the order denying the Urgent Motion for
Regular Preliminary Investigation is void for failure to clearly state the facts and the law upon which it
was based, pursuant to Rule 16, Section 3 of the Revised Rules of Court. The CA found that the
RTC had sufficiently explained the grounds for the denial of the motion.
The petitioners moved for reconsideration, but the CA denied the motion in its Resolution of April 17,
2008; hence, the present petition.
18
The Issues
The petitioners cited the following assignment of errors:
I.
WHETHER OR NOT THE PETITIONERS WERE VALIDLY ARRESTED WITHOUT A
WARRANT.
II.
WHETHER OR NOT THE PETITIONERS WERE LAWFULLY ARRESTED WHEN THEY
WERE MERELY INVITED TO THE POLICE PRECINCT.
III.
WHETHER OR NOT THE ORDER DENYING THE MOTION FOR PRELIMINARY
INVESTIGATION IS VOID FOR FAILURE TO STATE THE FACTS AND THE LAW UPON
WHICH IT WAS BASED.
The petitioners primarily argue that they were not lawfully arrested. No arrest warrant was ever
issued; they went to the police station only as a response to the arresting officers' invitation. They
even cited the Affidavit of Arrest, which actually used the word "invited. "
The petitioners also claim that no valid warrantless arrest took place under the terms of Rule 112,
Section 7 of the Revised Rules of Court. The incident happened two (2) hours before the police
officers actually arrived at the crime scene. The police officers could not have undertaken a valid
warrantless arrest as they had no personal knowledge that the petitioners were the authors of the
crime.
The petitioners additionally argue that the R TC' s Order denying the Urgent Motion for Regular
Preliminary Investigation is void because it was not properly issued.
The Court's Ruling
We find the petition unmeritorious and thus uphold the RTC Order. The criminal proceedings against
the petitioners should now proceed.
It is unfortunate that the kind of motion that the petitioners filed has to reach this Court for its
resolution. The thought is very tempting that the motion was employed simply to delay the
proceedings and that the use of Rule 65 petition has been abused.
But accepting things as they are, this delay can be more than compensated by fully examining in this
case the legalities surrounding warrantless warrants and establishing the proper interpretation of the
Rules for the guidance of the bench and the bar. These Rules have evolved over time, and the
present case presents to us the opportunity to re-trace their origins, development and the current
applicable interpretation.
I. Brief history on warrantless arrests
The organic laws of the Philippines, specifically, the Philippine Bill of 1902, and the
1935, 1973 and 1987 Constitutions all protect the right of the people to be secure in their persons
against unreasonable searches and seizures. Arrest falls under the term "seizure. "
19
20
21
22
23
This constitutional mandate is identical with the Fourth Amendment of the Constitution of the United
States. The Fourth Amendment traces its origins to the writings of Sir Edward Coke and The Great
Charter of the Liberties of England (Magna Carta Libertatum), sealed under oath by King John on
the bank of the River Thames near Windsor, England on June 15, 1215. The Magna Carta
Libertatum limited the King of England's powers and required the Crown to proclaim certain
liberties under the feudal vassals' threat of civil war. The declarations in Chapter 29 of the Magna
Carta Libertatum later became the foundational component of the Fourth Amendment of the United
States Constitution. It provides:
24
25
26
27
28
No freeman shall be taken, or imprisoned, or be disseised of his Freehold, or Liberties, or free

Customs, or be outlawed, or exiled, or any otherwise destroyed; nor will we not pass upon him, nor
condemn him, but by lawful Judgment of his Peers, or by the Law of the Land, We will sell to no
man, we will not deny or defer to any man either Justice or Right. [Emphasis supplied]
29
30
In United States v. Snyder, the United States Supreme Court held that this constitutional provision
does not prohibit arrests, searches and seizures without judicial warrant, but only those that are
unreasonable. With regard to an arrest, it is considered a seizure, which must also satisfy the test of
reasonableness.
31
32
33
In our jurisdiction, early rulings of the Court have acknowledged the validity of warrantless arrests.
The Court based these rulings on the common law of America and England that, according to the
Court, were not different from the Spanish laws. These court rulings likewise justified warrantless
arrests based on the provisions of separate laws then existing in the Philippines.
34
35
In 1905, the Court held in The United States v. Wilson that Section 37 of Act No. 183, or the
Charter of Manila, defined the arresting officer's power to arrest without a warrant, at least insofar as
the City of Manila was concerned.
36
37
In The United States v. Vallejo, et al., the Court held that in the absence of any provisions under
statutes or local ordinances, a police officer who held similar functions as those of the officers
established under the common law of England and America, also had the power to arrest without a
warrant in the Philippines.
38
The Court also ruled in The United States v. Santos that the rules on warrantless arrest were based
on common sense and reason. It further held that warrantless arrest found support under the then
Administrative Code which directed municipal policemen to exercise vigilance in the prevention of
public offenses.
39
40
41
In The United States v. Fortaleza, the Court applied Rules 27, 28, 29 and 30 of the Provisional Law
for the Application of the Penal Code which were provisions taken from the Spanish Law.
42
43
These rules were subsequently established and incorporated in our Rules of Court and
jurisprudence. Presently, the requirements of a warrantless arrest are now summarized in Rule 113,
Section 5 which states that: 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.
In cases falling under paragraph (a) and (b) above, the person arrested without a warrant shall be
forth with delivered to the nearest police station or jail and shall be proceeded against in accordance
with section 7 of Rule 112.
A warrantless arrest under the circumstances contemplated under Section 5(a) above has been
denominated as one "in flagrante delicto," while that under Section 5(b) has been described as a
"hot pursuit" arrest.
44
For purposes of this case, we shall focus on Section 5(b) the provision applicable in the present
case. This provision has undergone changes through the years not just in its phraseology but also in
its interpretation in our jurisprudence.
We shall first trace the evolution of Section 5(b) and examine the applicable American and Philippine
jurisprudence to fully understand its roots and its appropriate present application.
II. Evolution of Section 5(b), Rule 113
A. Prior to the 1940 Rules of Court
Prior to 1940, the Court based its rulings not just on American and English common law principle on
warrantless arrests but also on laws then existing in the Philippines. In Fortaleza, the Court cited
Rule 28 of the Provisional Law for the Application of the Penal Code which provided that:
45
Judicial and administrative authorities have power to detain, or to cause to be detained, persons
whom there is reasonable ground to believe guilty of some offense. It will be the duty of the
authorities, as well as of their agents, to arrest:
First. Such persons as may be arrested under the provisions of rule 27.
Second. A person charged with a crime for which the code provides a penalty greater than that of
confinamiento.
Third. A person charged with a crime for which the code provides a penalty less than that of
confinamiento, if his antecedents or the circumstances of the case would warrant the presumption
that he would fail to appear when summoned by the judicial authorities.
The provisions of the preceding paragraph shall not apply, however, to a defendant who gives
sufficient bond, to the satisfaction of the authority or agent who may arrest him, and who it may
reasonably be presumed will appear whenever summoned by the judge or court competent to try
him.
Fourth. A person coining under the provisions of the preceding paragraph may be arrested, although
no formal complaint has been filed against him, provided the following circumstances are present:
First. That the authority or agent had reasonable cause to believe that an unlawful act, amounting to
a crime had been committed.
Second. That the authority or agent had sufficient reason to believe that the person arrested
participated in the commission of such unlawful act or crime." [Emphasis and underscoring supplied]
In the same decision, the Court likewise cited Section 3 7 of the Charter of Manila, which provided
that certain officials, including police officers may, within the territory defined in the law, pursue and
arrest without warrant, any person found in suspicious places or under suspicious circumstances,
reasonably tending to show that such person has committed, or is about to commit any crime or
breach of the peace.
In Santos, the Court cited Miles v. Weston, which ruled that a peace officer may arrest persons
walking in the street at night when there is reasonable ground to suspect the commission of a crime,
although there is no proof of a felony having been committed.
46
47
The Court ruled in Santos that the arresting officer must justify that there was a probable cause for
an arrest without a warrant. The Court defined probable cause as a reasonable ground of suspicion,
supported by circumstances sufficiently strong in themselves as to warrant a reasonable man in
believing that the accused is guilty. Besides reasonable ground of suspicion, action in good faith is
another requirement. Once these conditions are complied with, the peace officer is not liable even if
the arrested person turned out to be innocent.
Based on these discussions, it appears clear that prior to the 1940 Rules of Court, it was not
necessary for the arresting officer to first have knowledge that a crime was actually committed. What
was necessary was the presence of reasonably sufficient grounds to believe the existence of an act
having the characteristics of a crime; and that the same grounds exist to believe that the person
sought to be detained participated in it. In addition, it was also established under the old court rulings
that the phrase "reasonable suspicion" was tantamount to probable cause without which, the
warrantless arrest would be invalid and the arresting officer may be held liable for its breach.
48
In The US. v. Hachaw, the Court invalidated the warrantless arrest of a Chinaman because the
arresting person did not state in what way the Chinaman was acting suspiciously or the particular act
or circumstance which aroused the arresting person's curiosity.
49
It appears, therefore, that prior to the establishment in our Rules of Court of the rules on warrantless
arrests, the gauge for a valid warrantless arrest was the arresting officer's reasonable suspicion
(probable cause) that a crime was committed and the person sought to be arrested has participated
in its commission. This principle left so much discretion and leeway on the part of the arresting
officer. However, the 1940 Rules of Court has limited this discretion.
B. The 1940 Rules of Court
(Restricting the arresting
officer's determination of
probable cause)
Rules 27 and 28 of the Provisional Law for the Application of the Penal Code were substantially
incorporated in Section 6, Rule 109 of the 1940 Rules of Court as follows:
50
SEC. 6. Arrest without warrant - When lawful. - A peace officer or a private person may, without a
warrant, arrest a person:
(a) When the person to be arrested has committed, is actually committing, or is about to
commit an offense in his presence;
(b) When an offense has in fact been committed, and he has reasonable ground to believe
that the person to be arrested has committed it;
establishment or place where he is serving final judgment or temporarily confined while his
[Emphasis and underscoring supplied]
These provisions were adopted in toto in Section 6, Rule 113 of the 1964 Rules of Court. Notably,
the 1940 and 1964 Rules have deviated from the old rulings of the Court. Prior to the 1940 Rules,
the actual commission of the offense was not necessary in determining the validity of the warrantless
arrest. Too, the arresting officer's determination of probable cause (or reasonable suspicion) applied
both as to whether a crime has been committed and whether the person to be arrested has
committed it.
However, under the 1940 and the 1964 Rules of Court, the Rules required that there should be
actual commission of an offense, thus, removing the element of the arresting officer's "reasonable
suspicion of the commission of an offense." Additionally, the determination of probable cause, or
reasonable suspicion, was limited only to the determination of whether the person to be arrested has
committed the offense. In other words, the 1940 and 1964 Rules of Court restricted the arresting
officer's discretion in warrantless arrests under Section 6(b), Rule 113 of the 1964 Rules of Court.
C. The more restrictive 1985 Rules of Criminal Procedure
Section 6, Rule 113 of the 1964 Rules of Court again underwent substantial changes and was reworded and re-numbered when it became Section 5, Rule 113 of the 1985 Rules of Criminal
Procedure, to wit:
Sec. 5. Arrest without warrant; when. lawful. - A peace officer or a private person may, without a
(b) When an offense has in fact just been committed, and he has personal knowledge of
facts indicating that the person to be arrested has committed it; and
case is pending, or has escaped while being transferred from one confinement to another. In
cases falling under paragraphs (a) and (b) hereof, the person arrested without a warrant
shall be forthwith delivered to the nearest police station or jail, and he shall be proceeded
against in accordance with Rule 112, Section 7. [Emphasis and underscoring supplied]
As amended, Section 5(b ), Rule 113 of the 1985 Rules of Court retained the restrictions introduced
under the 1964 Rules of Court. More importantly, however, it added a qualification that the
commission of the offense should not only have been "committed" but should have been "just
committed." This limited the arresting officer's time frame for conducting an investigation for
purposes of gathering information indicating that the person sought to be arrested has committed the
crime.
D. The Present Revised Rules of Criminal Procedure
Section 5(b ), Rule 113 of the 1985 Rules of Criminal Procedure was further amended with the
incorporation of the word "probable cause" as the basis of the arresting officer's determination on
whether the person to be arrested has committed the crime.
Hence, as presently worded, Section 5(b), Rule 113 of the Revised Rules of Criminal Procedure
provides that:
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.
From the current phraseology of the rules on warrantless arrest, it appears that for purposes of
Section S(b ), the following are the notable changes: first, the contemplated offense was qualified by
the word "just," connoting immediacy; and second, the warrantless arrest of a person sought to be
arrested should be based on probable cause to be determined by the arresting officer based on his
personal knowledge of facts and circumstances that the person to be arrested has committed it.
It is clear that the present rules have "objectified" the previously subjective determination of the
arresting officer as to the (1) commission of the crime; and (2) whether the person sought to be
arrested committed the crime. According to Feria, these changes were adopted to minimize arrests
based on mere suspicion or hearsay.
51
As presently worded, the elements under Section 5(b), Rule 113 of the Revised Rules of Criminal
Procedure are: first, an offense has just been committed; and second, the arresting officer has
probable cause to believe based on personal knowledge of facts or circumstances that the person to
be arrested has committed it.
For purposes of this case, we shall discuss these elements separately below, starting with the
element of probable cause, followed by the elements that the offense has just been committed, and
the arresting officer's personal knowledge of facts or circumstances that the person to be arrested
has committed the crime.
i) First Element of Section 5(b), Rule 113 of the Revised Rules of Criminal Procedure: Probable
cause
The existence of "probable cause" is now the "objectifier" or the determinant on how the arresting
officer shall proceed on the facts and circumstances, within his personal knowledge, for purposes of
determining whether the person to be arrested has committed the crime.
i.a) U.S. jurisprudence on probable cause in warrantless arrests
In Payton v. New York, the U.S. Supreme Court held that the Fourth Amendment of the Federal
Constitution does not prohibit arrests without a warrant although such arrests must be reasonable.
According to State v. Quinn, the warrantless arrest of a person who was discovered in the act of
violating the law is not a violation of due process.
52
53
The U.S. Supreme Court, however indicated in Henry v. United States that the Fourth Amendment
limited the circumstances under which warrantless arrests may be made. The necessary inquiry is
not whether there was a warrant or whether there was time to get one, but whether at the time of the
arrest probable cause existed. The term probable cause is synonymous to "reasonable cause" and
"reasonable grounds."
54
55
In determining the existence of probable cause, the arresting officer should make a thorough
investigation and exercise reasonable judgment. The standards for evaluating the factual basis
supporting a probable cause assessment are not less stringent in warrantless arrest situation than in
a case where a warrant is sought from a judicial officer. The probable cause determination of a
warrantless arrest is based on information that the arresting officer possesses at the time of the
arrest and not on the information acquired later.
56
In evaluating probable cause, probability and not certainty is the determinant of reasonableness
under the Fourth Amendment. Probable cause involves probabilities similar to the factual and
practical questions of everyday life upon which reasonable and prudent persons act. It is a pragmatic
question to be determined in each case in light of the particular circumstances and the particular
offense involved.
57
In determining probable cause, the arresting officer may rely on all the information in his possession,
his fair inferences therefrom, including his observations. Mere suspicion does not meet the
requirements of showing probable cause to arrest without warrant especially if it is a mere general
suspicion. Probable cause may rest on reasonably trustworthy information as well as personal
knowledge. Thus, the arresting officer may rely on information supplied by a witness or a victim of a
crime; and under the circumstances, the arresting officer need not verify such information.
58
In our jurisdiction, the Court has likewise defined probable cause in the context of Section 5(b), Rule
113 of the Revised Rules of Criminal Procedure.
In Abelita Ill v. Doria et al., the Court held that personal knowledge of facts must be based on
probable cause, which means an actual belief or reasonable grounds of suspicion. The grounds of
suspicion are reasonable when, in the absence of actual belief of the arresting officers, the suspicion
that the person to be arrested is probably guilty of committing the offense is based on actual facts,
i.e., supported by circumstances sufficiently strong in themselves to create the probable cause of
guilt of the person to be arrested. A reasonable suspicion, therefore, must be founded on probable
cause, coupled with good faith on the part of the peace officers making the arrest.
59
i.b) Probable cause under Section 5(b), Rule 113 of the Revised Rules of Criminal Procedure,
distinguished from probable cause in preliminary investigations and the judicial proceeding for the
issuance of a warrant of arrest
The purpose of a preliminary investigation is to determine whether a crime has been committed and
whether there is probable cause to believe that the accused is guilty of the crime and should be held
for triat. In Buchanan v. Viuda de Esteban, we defined probable cause as the existence of facts
and circumstances as would excite the belief in a reasonable mind, acting on the facts within the
knowledge of the prosecutor, that the person charged was guilty of the crime for which he was
prosecuted.
60
61
In this particular proceeding, the finding of the existence of probable cause as to the guilt of the
respondent was based on the submitted documents of the complainant, the respondent and his
witnesses.
62
On the other hand, probable cause in judicial proceedings for the issuance of a warrant of arrest is
defined as the existence of such facts and circumstances that would lead a reasonably discreet and
prudent person to believe that an offense has been committed by the person sought to be arrested.
Hence, before issuing a warrant of arrest, the judge must be satisfied that based on the evidence
submitted, there is sufficient proof that a crime has been committed and that the person to be
arrested is probably guilty thereof. At this stage of the criminal proceeding, the judge is not yet
tasked to review in detail the evidence submitted during the preliminary investigation. It is sufficient
that he personally evaluates the evidence in determining probable cause to issue a warrant of
arrest.
63
In contrast, the arresting officer's determination of probable cause under Section 5(b), Rule 113 of
the Revised Rules of Criminal Procedure is based on his personal knowledge of facts or
circumstances that the person sought to be arrested has committed the crime. These facts or
circumstances pertain to actual facts or raw evidence, i.e., supported by circumstances sufficiently
strong in themselves to create the probable cause of guilt of the person to be arrested. A reasonable
suspicion therefore must be founded on probable cause, coupled with good faith on the part of the
peace officers making.the arrest.
The probable cause to justify warrantless arrest ordinarily signifies a reasonable ground of suspicion
supported by circumstances sufficiently strong in themselves to warrant a cautious man to believe
that the person accused is guilty of the offense with which he is charged, or an actual belief or
reasonable ground of suspicion, based on actual facts.
64
65
It is clear therefore that the standard for determining "probable cause" is invariable for the officer
arresting without a warrant, the public prosecutor, and the judge issuing a warrant of arrest. It is the
existence of such facts and circumstances that would lead a reasonably discreet and prudent person
to believe that an offense has been committed by the person sought to be arrested or held for trial,
as the case may be.
However, while the arresting officer, the public prosecutor and the judge all determine "probable
cause," within the spheres of their respective functions, its existence is influenced heavily by the
available facts and circumstance within their possession. In short, although these officers use the
same standard of a reasonable man, they possess dissimilar quantity of facts or circumstances, as
set by the rules, upon which they must determine probable cause.
Thus, under the present rules and jurisprudence, the arresting officer should base his determination
of probable cause on his personal knowledge of facts and circumstances that the person sought to
be arrested has committed the crime; the public prosecutor and the judge must base their
determination on the evidence submitted by the parties.
In other words, the arresting officer operates on the basis of more limited facts, evidence or available
information that he must personally gather within a limited time frame.
Hence, in Santos, the Court acknowledged the inherent limitations of determining probable cause in
warrantless arrests due to the urgency of its determination in these instances. The Court held that
one should not expect too much of an ordinary policeman. He is not presumed to exercise the subtle
reasoning of a judicial officer. Oftentimes, he has no opportunity to make proper investigation but
must act in haste on his own belief to prevent the escape of the criminal.
66
67
ii) Second and Third Elements of Section 5(b), Rule 113:

The crime has just been committed/personal
knowledge of facts or circumstances that the person

to be arrested has committed it
We deem it necessary to combine the discussions of these two elements as our jurisprudence
shows that these were usually taken together in the Court's determination of the validity of the
warrantless arrests that were made pursuant to Section 5(b), Rule 113 of the Revised Rules of
Criminal Procedure.
In Posadas v. Ombudsman, the killing of Dennis Venturina happened on December 8, 1994. It was
only on December 11, 1994 that Chancellor Posadas requested the NBI's assistance. On the basis
of the supposed identification of two (2) witnesses, the NBI attempted to arrest Francis Carlo
Taparan and Raymundo Narag three (3) days after the commission of the crime. With this set of
facts, it cannot be said that the officers have personal knowledge of facts or circumstances that the
persons sought to be arrested committed the crime. Hence, the Court invalidated the warrantless
arrest.
68
Similarly, in People v. Burgos, one Cesar Masamlok personally and voluntarily surrendered to the
authorities, stating that Ruben Burgos forcibly recruited him to become a member of the NPA, with a
threat of physical harm. Upon receipt of this information, a joint team of PC-INP units was dispatched
to arrest Burgos who was then plowing the field. Indeed, the arrest was invalid considering that the
only information that the police officers had in effecting the arrest was the information from a third
person. It cannot be also said in this case that there was certainty as regards the commission of a
crime.
69
In People v. del Rosario, the Court held that the requirement that an offense has just been
committed means that there must be a large measure of immediacy between the time the offense
was committed and the time of the arrest. If there was an appreciable lapse of time between the
arrest and the commission of the crime, a warrant of arrest must be secured.
70
The Court held that the arrest of del Rosario did not comply with these requirements because he
was arrested only a day after the commission of the crime and not immediately thereafter.
Additionally, the arresting officers were not present and were not actual eyewitnesses to the crime.
Hence, they had no personal knowledge of facts indicating that the person to be arrested had
committed the offense. They became aware of del Rosario's identity as the driver of the getaway
tricycle only during the custodial investigation.
In People v. Cendana, the accused was arrested one (1) day after the killing of the victim and only
on the basis of information obtained from unnamed sources. The unlawful arrest was held invalid.
71
In Rolito Go v. CA, the arrest of the accused six ( 6) days after the commission of the crime was
held invalid because the crime had not just been committed. Moreover, the "arresting" officers had
no "personal knowledge" of facts indicating that the accused was the gunman who had shot the
victim. The information upon which the police acted came from statements made by alleged
eyewitnesses to the shooting; one stated that the accused was the gunman; another was able to
take down the alleged gunman's car's plate number which turned out to be registered in the name of
the accused's wife. That information did not constitute "personal knowledge."
72
In People v. Tonog, Jr., the warrantless arrest which was done on the same day was held valid. In
this case, the arresting officer had knowledge of facts which he personally gathered in the course of
his investigation, indicating that the accused was one of the perpetrators.
73
In People v. Gerente, the policemen arrested Gerente only about three (3) hours after Gerente and
his companions had killed the victim. The Court held that the policemen had personal knowledge of
the violent death of the victim and of facts indicating that Gerente and two others had killed him. The
warrantless arrest was held valid.
74
In People v. Alvario, the warrantless arrest came immediately after the arresting officers received
information from the victim of the crime. The Court held that the personal knowledge of the arresting
officers was derived from the information supplied by the victim herself who pointed to Alvario as the
man who raped her at the time of his arrest. The Court upheld the warrantless arrest. In People v.
Jayson, there was a shooting incident. The policemen who were summoned to the scene of the
crime found the victim. The informants pointed to the accused as the assailant only moments after
the shooting. The Court held that the arresting officers acted on the basis of personal knowledge of
the death of the victim and of facts indicating that the accused was the assailant. Thus, the
warrantless arrest was held valid.
75
76
In People v. Acol, a group held up the passengers in a jeepney and the policemen immediately
responded to the report of the crime. One of the victims saw four persons walking towards Fort
Bonifacio, one of whom was wearing his jacket. The victim pointed them to the policemen. When the
group saw the policemen coming, they ran in different directions. The Court held that the arrest was
valid.
77
In Cadua v. CA, there was an initial report to the police concerning a robbery. A radio dispatch was
then given to the arresting officers, who proceeded to Alden Street to verify the authenticity of the
radio message. When they reached the place, they met with the complainants who initiated the
report about the robbery. Upon the officers' invitation, the victims joined them in conducting a search
of the nearby area where the accused was spotted in the vicinity. Based on the reported statements
of the complainants, he was identified as a logical suspect in the offense just committed. Hence, the
arrest was held valid.
78
In Doria, the Court held that Section S(b ), Rule 113 of the 1985 Rules of Criminal Procedure does
not require the arresting officers to personally witness the commission of the offense.
79
In this case, P/Supt. Doria alleged that his office received a telephone call from a relative of Rosa
Sia about a shooting incident. He dispatched a team headed by SP03 Ramirez to investigate the
incident. SP03 Ramirez later reported that a certain William Sia was wounded while Judge Abelita
III, who was implicated in the incident, and his wife just left the place of the incident. P/Supt. Doria
looked for Abelita III and when he found him, he informed him of the incident report. P/Supt. Doria
requested Abelita III to go with him to the police headquarters as he had been reported to be
involved in the incident. Abelita III agreed but suddenly sped up his vehicle and proceeded to his
residence where P/Supt. Doria caught him up as he was about to run towards his house.
The police officers saw a gun in the front seat of the vehicle beside the driver's seat as Abelita III
opened the door. They also saw a shotgun at the back of the driver's seat. The police officers
confiscated the firearms and arrested Abelita III. The Court held that the petitioner's act of trying to
get away, coupled with the incident report which they investigated, were enough to raise a
reasonable suspicion on the part of the police authorities as to the existence of probable cause.
Based on these discussions, it appears that the Court's appreciation of the elements that "the
offense has just been committed" and ''personal knowledge of facts and circumstances that the
person to be arrested committed it" depended on the particular circumstances of the case. However,
we note that the element of ''personal knowledge of facts or circumstances" under Section S(b ),
Rule 113 of the Revised Rules of Criminal Procedure requires clarification.
The phrase covers facts or, in the alternative, circumstances. According to the Black's Law
Dictionary, "circumstances are attendant or accompanying facts, events or conditions. "
Circumstances may pertain to events or actions within the actual perception, personal evaluation or
observation of the police officer at the scene of the crime. Thus, even though the police officer has
not seen someone actually fleeing, he could still make a warrantless arrest if, based on his personal
evaluation of the circumstances at the scene of the crime, he could determine the existence of
probable cause that the person sought to be arrested has committed the crime. However, the
determination of probable cause and the gathering of facts or circumstances should be made
immediately after the commission of the crime in order to comply with the element of immediacy.
80
In other words, the clincher in the element of ''personal knowledge of facts or circumstances" is the
required element of immediacy within which these facts or circumstances should be gathered. This
required time element acts as a safeguard to ensure that the police officers have gathered the facts
or perceived the circumstances within a very limited time frame. This guarantees that the police
officers would have no time to base their probable cause finding on facts or circumstances obtained
after an exhaustive investigation.
The reason for the element of the immediacy is this - as the time gap from the commission of the
crime to the arrest widens, the pieces of information gathered are prone to become contaminated
and subjected to external factors, interpretations and hearsay. On the other hand, with the element
of immediacy imposed under Section 5(b), Rule 113 of the Revised Rules of Criminal Procedure, the
police officer's determination of probable cause would necessarily be limited to raw or
uncontaminated facts or circumstances, gathered as they were within a very limited period of time.
The same provision adds another safeguard with the requirement of probable cause as the standard
for evaluating these facts of circumstances before the police officer could effect a valid warrantless
arrest.
In light of the discussion above on the developments of Section 5(b), Rule 113 of the Revised Rules
of Criminal Procedure and our jurisprudence on the matter, we hold that the following must be
present for a valid warrantless arrest: 1) the crime should have been just committed; and 2) the
arresting officer's exercise of discretion is limited by the standard of probable cause to be
determined from the facts and circumstances within his personal knowledge. The requirement of the
existence of probable cause objectifies the reasonableness of the warrantless arrest for purposes of
compliance with the Constitutional mandate against unreasonable arrests.
Hence, for purposes of resolving the issue on the validity of the warrantless arrest of the present
petitioners, the question to be resolved is whether the requirements for a valid warrantless arrest
under Section 5(b), Rule 113 of the Revised Rules of Criminal Procedure were complied with,
namely: 1) has the crime just been committed when they were arrested? 2) did the arresting officer
have personal knowledge of facts and circumstances that the petitioners committed the crime? and
3) based on these facts and circumstances that the arresting officer possessed at the time of the
petitioners' arrest, would a reasonably discreet and prudent person believe that the attempted
murder of Atty. Generoso was committed by the petitioners? We rule in the affirmative.
III. Application of Section S(b), Rule 113 of the Revised Rules
of Criminal Procedure in the present case: there was a
valid warrantless arrest
We deem it necessary to review the records of the CA because it has misapprehended the facts in
its decision. From a review of the records, we conclude that the police officers had personal
knowledge of facts or circumstances upon which they had properly determined probable cause in
effecting a warrantless arrest against the petitioners. We note, however, that the determination of the
facts in the present case is purely limited to the resolution of the issue on the validity of the
warrantless arrests of the petitioners.
81
Based on the police blotter entry taken at 4:15 a.m. on February 20, 2005, the date that the alleged
crime was committed, the petitioners were brought in for investigation at the Batasan Hills Police
Station. The police blotter stated that the alleged crime was committed at 3:15 a.m. on February 20,
2005, along Kasiyahan St., Brgy. Holy Spirit, Quezon City.
82
The time of the entry of the complaint in the police blotter at 4:15 a.m., with Atty. Generoso and the
petitioners already inside the police station, would connote that the arrest took place less than one
hour from the time of the occurrence of the crime. Hence, the CA finding that the arrest took place
two (2) hours after the commission of the crime is unfounded.
The arresting officers' personal observation of Atty. Generoso's bruises when they arrived at the
scene of the crime is corroborated by the petitioners' admissions that Atty: Generoso indeed suffered
blows from petitioner Macapanas and his brother Joseph Macapanas, although they asserted that
they did it in self-defense against Atty. Generoso.
83
Atty. Generoso's bruises were also corroborated by the Medico-Legal Certificate that was issued by
East Avenue Medical Center on the same date of the alleged mauling. The medical check-up of Atty.
Generoso that was made about 8:10 a.m. on the date of the incident, showed the following findings:
"Contusion Hematoma, Left Frontal Area; Abrasion, T6 area, right midclavicular line periorbital
hematoma, left eye; Abrasion, distal 3rd posterolateral aspect of right forearm; Abrasion, 4th and fifth
digit, right hand; Abrasion on area of ih rib (L ant. Chest wall), tenderness on L peripheral area, no
visible abrasion. In addition, the attending physician, Dr. Eva P. Javier, diagnosed Atty. Generoso of
contusion hematoma, periorbital L., and traumatic conjunctivitis, o.s.
84
To summarize, the arresting officers went to the scene of the crime upon the complaint of Atty.
Generoso of his alleged mauling; the police officers responded to the scene of the crime less than
one (1) hour after the alleged mauling; the alleged crime transpired in a community where Atty.
Generoso and the petitioners reside; Atty. Generoso positively identified the petitioners as those
responsible for his mauling and, notably, the petitioners and Atty. Generoso lived almost in the
same neighborhood; more importantly, when the petitioners were confronted by the arresting
officers, they did not deny their participation in the incident with Atty. Generoso, although they
narrated a different version of what transpired.
85
86
87
With these facts and circumstances that the police officers gathered and which they have personally
observed less than one hour from the time that they have arrived at the scene of the crime until the
time of the arrest of the petitioners, we deem it reasonable to conclude that the police officers had
personal knowledge of facts or circumstances justifying the petitioners' warrantless arrests. These
circumstances were well within the police officers' observation, perception and evaluation at the time
of the arrest. These circumstances qualify as the police officers' personal observation, which are
within their personal knowledge, prompting them to make the warrantless arrests.
Similar to the factual antecedents in Jayson, the police officers in the present case saw Atty.
Generoso in his sorry bloodied state. As the victim, he positively identified the petitioners as the
persons who mauled him; however, instead of fleeing like what happened in Jayson, the petitioners
agreed to go with the police officers.
88
This is also similar to what happened in People v. Tonog, Jr. where Tonog did not flee but voluntarily
went with the police officers. More than this, the petitioners in the present case even admitted to
have been involved in the incident with Atty. Generoso, although they had another version of what
transpired.
89
In determining the reasonableness of the warrantless arrests, it is incumbent upon the courts to
consider if the police officers have complied with the requirements set under Section 5(b), Rule 113
of the Revised Rules of Criminal Procedure, specifically, the requirement of immediacy; the police
officer's personal knowledge of facts or circumstances; and lastly, the propriety of the determination
of probable cause that the person sought to be arrested committed the crime.
The records show that soon after the report of the incident occurred, SPOl Monsalve immediately
dispatched the arresting officer, SP02 Javier, to render personal assistance to the victim. This fact
alone negates the petitioners' argument that the police officers did not have personal knowledge that
a crime had been committed - the police immediately responded and had personal knowledge that a
crime had been committed.
90
1wphi1
To reiterate, personal knowledge of a crime just committed under the terms of the above-cited
provision, does not require actual presence at the scene while a crime was being committed; it is
enough that evidence of the recent commission of the crime is patent (as in this case) and the police
officer has probable cause to believe based on personal knowledge of facts or circumstances, that
the person to be arrested has recently committed the crime.
Considering the circumstances of the stabbing, particularly the locality where it took place, its
occasion, the personal circumstances of the parties, and the immediate on-the-spot investigation
that took place, the immediate and warrantless arrests of the perpetrators were proper.
Consequently, the inquest proceeding that the City Prosecutor conducted was appropriate under the
circumstances.
IV. The term "invited" in the Affidavit of Arrest is construed to
mean as an authoritative command
After the resolution of the validity of the warrantless arrest, the discussion of the petitioners' second
issue is largely academic. Arrest is defined as the taking of a person into custody in order that he
may be bound to answer for the commission of an offense. An arrest is made by an actual restraint
of the person to be arrested, or by his submission to the custody of the person making the
arrest. Thus, application of actual force, manual touching of the body, physical restraint or a formal
declaration of arrest is not required. It is enough that there be an intention on the part of one of the
91
parties to arrest the other and the intent of the other to submit, under the belief and impression that
submission is necessary.
92
Notwithstanding the term "invited" in the Affidavit of Arrest, SP02 Javier could not but have the
intention of arresting the petitioners following Atty. Generoso' s account. SP02 Javier did not need to
apply violent physical restraint when a simple directive to the petitioners to follow him to the police
station would produce a similar effect. In other words, the application of actual force would only be
an alternative if the petitioners had exhibited resistance.
93
To be sure, after a crime had just been committed and the attending policemen have acquired
personal knowledge of the incidents of the crime, including the alleged perpetrators, the arrest of the
petitioners as the perpetrators pointed to by the victim, was not a mere random act but was in
connection with a particular offense. Furthermore, SP02 Javier had informed the petitioners, at the
time of their arrest, of the charges against them before taking them to Batasan Hills Police Station
for investigation.
94
V. The Order denying the motion for preliminary

investigation is valid
In their last ditch attempt at avoidance, the petitioners attack the R TC Order denying the petitioners'
urgent motion for regular preliminary investigation for allegedly having been issued in violation of
Article VIII, Section 14 of the 1987 Constitution and Rule 16, Section 3 of the Revised Rules of
Court.
95
96
The RTC, in its Order dismissing the motion, clearly states that the Court is not persuaded by the
evidentiary nature of the allegations in the said motion of the accused. Aside from lack of clear and
convincing proof, the Court, in the exercise of its sound discretion on the matter, is legally bound to
pursue and hereby gives preference to the speedy disposition of the case."
We do not see any taint of impropriety or grave abuse of discretion in this Order. The RTC, in
resolving the motion, is not required to state all the facts found in the record of the case. Detailed
evidentiary matters, as the RTC decreed, is best reserved for the full-blown trial of the case, not in
the preliminary incidents leading up to the trial.
Additionally, no less than the Constitution itself provides that it is the decision that should state
clearly and distinctly the facts and the law on which it is based. In resolving a motion, the court is
only required to state clearly and distinctly the reasons therefor. A contrary system would only
prolong the proceedings, which was precisely what happened to this case. Hence, we uphold the
validity of the RTC's order as it correctly stated the reason for its denial of the petitioners' Urgent
Motion for Regular Preliminary Investigation. WHEREFORE, premises considered, we hereby DENY
the petition, and hereby AFFIRM the decision dated January 21, 2008 and the resolution dated April
17, 2008 of the Court of Appeals in CA-G.R. SP No. 91541. The City Prosecutor of Quezon City is
hereby ORDERED to proceed with the criminal proceedings against the petitioners.
SO ORDERED.
G.R. No. 82585 November 14, 1988
MAXIMO V. SOLIVEN, ANTONIO V. ROCES, FREDERICK K. AGCAOLI, and GODOFREDO L.

MANZANAS,petitioners,
vs.
THE HON. RAMON P. MAKASIAR, Presiding Judge of the Regional Trial Court of Manila,
Branch 35, UNDERSECRETARY SILVESTRE BELLO III, of the Department of Justice, LUIS C.
VICTOR, THE CITY FISCAL OF MANILA and PRESIDENT CORAZON C. AQUINO, respondents.
G.R. No. 82827 November 14, 1988
LUIS D. BELTRAN, petitioner,
vs.
THE HON. RAMON P. MAKASIAR, Presiding Judge of Branch 35 of the Regional Trial Court, at
Manila, THE HON. LUIS VICTOR, CITY FISCAL OF MANILA, PEOPLE OF THE PHILIPPINES,
SUPERINTENDENT OF THE WESTERN POLICE DISTRICT, and THE MEMBERS OF THE
PROCESS SERVING UNIT AT THE REGIONAL TRIAL COURT OF MANILA, respondents.
G.R. No. 83979 November 14, 1988.
LUIS D. BELTRAN, petitioner,
vs.
EXECUTIVE SECRETARY CATALINO MACARAIG, SECRETARY OF JUSTICE SEDFREY
ORDOEZ, UNDERSECRETARY OF JUSTICE SILVESTRE BELLO III, THE CITY FISCAL OF
MANILA JESUS F. GUERRERO, and JUDGE RAMON P. MAKASIAR, Presiding Judge of
Branch 35 of the Regional Trial Court, at Manila, respondents.
Angara, Abello, Concepcion, Regala and Cruz for petitioners in G.R. No. 82585.
Perfecto V. Fernandez, Jose P. Fernandez and Cristobal P. Fernandez for petitioner in G.R. Nos.
82827 and 83979.
RESOLUTION
PER CURIAM:
In these consolidated cases, three principal issues were raised: (1) whether or not petitioners were
denied due process when informations for libel were filed against them although the finding of the
existence of a prima faciecase was still under review by the Secretary of Justice and, subsequently,
by the President; (2) whether or not the constitutional rights of Beltran were violated when
respondent RTC judge issued a warrant for his arrest without personally examining the complainant
and the witnesses, if any, to determine probable cause; and (3) whether or not the President of the
Philippines, under the Constitution, may initiate criminal proceedings against the petitioners through
the filing of a complaint-affidavit.
Subsequent events have rendered the first issue moot and academic. On March 30, 1988, the
Secretary of Justice denied petitioners' motion for reconsideration and upheld the resolution of the
Undersecretary of Justice sustaining the City Fiscal's finding of a prima facie case against
petitioners. A second motion for reconsideration filed by petitioner Beltran was denied by the
Secretary of Justice on April 7, 1988. On appeal, the President, through the Executive Secretary,
affirmed the resolution of the Secretary of Justice on May 2, 1988. The motion for reconsideration
was denied by the Executive Secretary on May 16, 1988. With these developments, petitioners'
contention that they have been denied the administrative remedies available under the law has lost
factual support.
It may also be added that with respect to petitioner Beltran, the allegation of denial of due process of
law in the preliminary investigation is negated by the fact that instead of submitting his counteraffidavits, he filed a "Motion to Declare Proceedings Closed," in effect waiving his right to refute the
complaint by filing counter-affidavits. Due process of law does not require that the respondent in a
criminal case actually file his counter-affidavits before the preliminary investigation is deemed
completed. All that is required is that the respondent be given the opportunity to submit counteraffidavits if he is so minded.
The second issue, raised by petitioner Beltran, calls for an interpretation of the constitutional
provision on the issuance of warrants of arrest. The pertinent provision reads:
Art. III, Sec. 2. The right of the people to be secure in their persons, houses, papers
and effects against unreasonable searches and seizures 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 nder 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.
The addition of the word "personally" after the word "determined" and the deletion of the grant of
authority by the 1973 Constitution to issue warrants to "other responsible officers as may be
authorized by law," has apparently convinced petitioner Beltran that the Constitution now requires
the judge to personally examine the complainant and his witnesses in his determination of probable
cause for the issuance of warrants of arrest. This is not an accurate interpretation.
What the Constitution underscores is the exclusive and personal responsibility of the issuing judge to
satisfy himself of the existence of probable cause. In satisfying himself of the existence of probable
cause for the issuance of a warrant of arrest, the judge is not required to personally examine the
complainant and his witnesses. Following established doctrine and procedure, he shall: (1)
personally evaluate the report and the supporting documents submitted by the fiscal regarding the
existence of probable cause and, on the basis thereof, issue a warrant of arrest; or (2) if on the basis
thereof he finds no probable cause, he may disregard the fiscal's report and require the submission
of supporting affidavits of witnesses to aid him in arriving at a conclusion as to the existence of
probable cause.
Sound policy dictates this procedure, otherwise judges would be unduly laden with the preliminary
examination and investigation of criminal complaints instead of concentrating on hearing and
deciding cases filed before their courts.
On June 30, 1987, the Supreme Court unanimously adopted Circular No. 12, setting down
guidelines for the issuance of warrants of arrest. The procedure therein provided is reiterated and
clarified in this resolution.
It has not been shown that respondent judge has deviated from the prescribed procedure. Thus, with
regard to the issuance of the warrants of arrest, a finding of grave abuse of discretion amounting to
lack or excess of jurisdiction cannot be sustained.
Anent the third issue, petitioner Beltran argues that "the reasons which necessitate presidential
immunity from suit impose a correlative disability to file suit." He contends that if criminal
proceedings ensue by virtue of the President's filing of her complaint-affidavit, she may subsequently
have to be a witness for the prosecution, bringing her under the trial court's jurisdiction. This,
continues Beltran, would in an indirect way defeat her privilege of immunity from suit, as by testifying
on the witness stand, she would be exposing herself to possible contempt of court or perjury.
The rationale for the grant to the President of the privilege of immunity from suit is to assure the
exercise of Presidential duties and functions free from any hindrance or distraction, considering that
being the Chief Executive of the Government is a job that, aside from requiring all of the office
holder's time, also demands undivided attention.
But this privilege of immunity from suit, pertains to the President by virtue of the office and may be
invoked only by the holder of the office; not by any other person in the President's behalf. Thus, an
accused in a criminal case in which the President is complainant cannot raise the presidential
privilege as a defense to prevent the case from proceeding against such accused.
Moreover, there is nothing in our laws that would prevent the President from waiving the privilege.
Thus, if so minded the President may shed the protection afforded by the privilege and submit to the
court's jurisdiction. The choice of whether to exercise the privilege or to waive it is solely the
President's prerogative. It is a decision that cannot be assumed and imposed by any other person.
As regards the contention of petitioner Beltran that he could not be held liable for libel because of the
privileged character or the publication, the Court reiterates that it is not a trier of facts and that such
a defense is best left to the trial court to appreciate after receiving the evidence of the parties.
As to petitioner Beltran's claim that to allow the libel case to proceed would produce a "chilling effect"
on press freedom, the Court finds no basis at this stage to rule on the point.
The petitions fail to establish that public respondents, through their separate acts, gravely abused
their discretion as to amount to lack of jurisdiction. Hence, the writs of certiorari and prohibition
prayed for cannot issue.
WHEREFORE, finding no grave abuse of discretion amounting to excess or lack of jurisdiction on
the part of the public respondents, the Court Resolved to DISMISS the petitions in G. R. Nos. 82585,
82827 and 83979. The Order to maintain the status quo contained in the Resolution of the Court en
banc dated April 7, 1988 and reiterated in the Resolution dated April 26, 1988 is LIFTED.
Fernan, C.J., Narvasa, Melencio-Herrera, Cruz, Paras, Feliciano, Gancayco, Padilla, Bidin,
Sarmiento, Cortes, Grio-Aquino Medialdea and Regalado, JJ., concur.
Separate Opinions
GUTIERREZ, JR., J., concurring:

I concur with the majority opinion insofar as it involves the three principal issues mentioned in its
opening statement. However, as to the more important issue on whether or not the prosecution of
the libel case would produce a "chilling effect" on press freedom, I beg to reserve my vote. I believe
this is the more important issue in these petitions and it should be resolved now rather that later.
Consistent with our decision in Salonga v. Cruz Pano (134 SCRA 438 [1985]), the Court should not
hesitate to quash a criminal prosecution in the interest of more enlightened and substantial justice
where it is not alone the criminal liability of an accused in a seemingly minor libel case which is
involved but broader considerations of governmental power versus a preferred freedom.
We have in these four petitions the unusual situation where the highest official of the Republic and
one who enjoys unprecedented public support asks for the prosecution of a newspaper columnist,
the publisher and chairman of the editorial board, the managing editor and the business manager in
a not too indubitable a case for alleged libel.
I am fully in accord with an all out prosecution if the effect will be limited to punishing a
newspaperman who, instead of observing accuracy and fairness, engages in unwarranted personal
attacks, irresponsible twisting of facts, of malicious distortions of half-truths which tend to cause
dishonor, discredit, or contempt of the complainant. However, this case is not a simple prosecution
for libel. We have as complainant a powerful and popular President who heads the investigation and
prosecution service and appoints members of appellate courts but who feels so terribly maligned
that she has taken the unorthodox step of going to court inspite of the invocations of freedom of the
press which would inevitably follow.
I believe that this Court should have acted on this issue now instead of leaving the matter to fiscals
and defense lawyers to argue before a trial judge.
There is always bound to be harassment inherent in any criminal prosecution. Where the
harassment goes beyond the usual difficulties encountered by any accused and results in an
unwillingness of media to freely criticize government or to question government handling of sensitive
issues and public affairs, this Court and not a lower tribunal should draw the demarcation line.
As early as March 8, 1918, the decision in United States v. Bustos (37 Phil. 731) stated that
"(c)omplete liberty to comment on the conduct of public men is a scalpel in the case of free speech.
The sharp incision of its probe relieves the abscesses of officialdom. Men in public life may suffer
under a hostile and unjust accusation; the wound can be assuaged with the balm of a clear
conscience." The Court pointed out that while defamation is not authorized, criticism is to be
expected and should be borne for the common good.
In People v. Perfecto (43 Phil. 887 [1922]), the Court stated:
xxx xxx xxx
... No longer is there a Minister of the Crown own or a person in authority of such
exalted position that the citizen must speak of him only with bated breath. "In the eye
of our Constitution and laws, every man is a sovereign, a ruler and a freeman, and
has equal rights with every other man." (at p. 900)
In fact, the Court observed that high official position, instead of affording immunity from slanderous
and libelous charges, would actually invite attacks by those who desire to create sensation. It would
seem that what would ordinarily be slander if directed at the typical person should be examined from
various perspectives if directed at a high government official. Again, the Supreme Court should draw
this fine line instead of leaving it to lower tribunals.
This Court has stressed as authoritative doctrine in Elizalde v. Gutierrez (76 SCRA 448 [1977]) that a
prosecution for libel lacks justification if the offending words find sanctuary within the shelter of the
free press guaranty. In other words, a prosecution for libel should not be allowed to continue, where
after discounting the possibility that the words may not be really that libelous, there is likely to be a
chilling effect, a patently inhibiting factor on the willingness of newspapermen, especially editors and
publishers to courageously perform their critical role in society. If, instead of merely reading more
carefully what a columnist writes in his daily column, the editors tell their people to lay off certain
issues or certain officials, the effect on a free press would be highly injurious.
Because many questions regarding press freedom are left unanswered by our resolution, I must call
attention to our decisions which caution that "no inroads on press freedom should be allowed in the
guise of punitive action visited on what otherwise should be characterized as libel." (Lopez v. Court
of Appeals, 34 SCRA 117 [1970]; See also the citations in Elizalde v. Gutierrez, supra).
The United States Supreme Court is even more emphatic, to wit:
In deciding the question now, we are compelled by neither precedent nor policy to
give any more weight to the epithet "libel" than we have to other "mere labels" of
state law. N. A. A. C. P. v. Button, 371 US 415, 429, 9L ed 2d 405, 415, 83 S Ct 328.
Like insurrection, contempt, advocacy of unlawful acts, breach of the peace,
obscenity, solicitation of legal business, and the other various other formulae for the
repression of expression that have been challenged in this Court, libel can claim no
talismanic immunity from constitutional limitations. It must be measured by standards
that satisfy the First Amendment.
xxx xxx xxx
Those who won our independence believed ... that public discussion is a political
duty; and that this should be a fundamental principle of the American government.
They recognized the risk to which all human institutions are subject. But they knew
that order cannot be secured merely through fear of punishment for its infraction; that
it is hazardous to discourage thought, hope and imagination; that fear breeds
repression; that repression breeds hate; that hate menaces stable government; that
the path of safety lies in the opportunity to discuss freely supposed grievances and
proposed remedies; and that the fitting remedy for evil counsel is good ones.
Believing in the power of reason as applied through public discussion, they
eschewed silence coerced by lawthe argument of force in its worst form. ...
Thus we consider this case against the background of a profound national

commitment to the principle that debate on public issues should be uninhibited,
robust, and wide open, and that it may well include vehement, caustic, and
sometimes unpleasantly sharp attacks on government and public officials. ... (at pp.
700-701)
Shunting aside the individual liability of Mr. Luis Beltran, is there a prima facie showing that Messrs.
Maximo Soliven, Antonio V. Roces, Frederick K. Agcaoili, and Godofredo L. Manzanas knowingly
participated in a wilful purveying of falsehood? Considering the free speech aspects of these
petitions, should not a differentiated approach to their particular liabilities be taken instead of lumping
up everybody with the offending columnist? I realize that the law includes publishers and editors but
perhaps the "chilling effect" issue applies with singular effectivity to publishers and editors vis-a-vis
newspaper columnists. There is no question that, ordinarily, libel is not protected by the free speech
clause but we have to understand that some provocative words, which if taken literally may appear
to shame or disparage a public figure, may really be intended to provoke debate on public issues
when uttered or written by a media personality. Will not a criminal prosecution in the type of case
now before us dampen the vigor and limit the variety of public debate? There are many other
questions arising from this unusual case which have not been considered.
I, of course, concur with the Court's opinion because it has decided to limit the issues to narrowly
drawn ones. I see no reason to disagree with the way the Court has resolved them. The first issue
on prematurity is moot. The second issue discusses a procedure now embodied in the recently
amended Rules of Court on how a Judge should proceed before he issues a warrant of arrest. Anent
the third issue, considerations of public policy dictate that an incumbent President should not be
sued. At the same time, the President cannot stand by helplessly bereft of legal remedies if
somebody vilifies or maligns him or her.
The Court has decided to defer the "chilling effect" issue for a later day. To this, I take exception. I
know that most of our fiscals and judges are courageous individuals who would not allow any
considerations of possible consequences to their careers to stand in the way of public duty. But why
should we subject them to this problem? And why should we allow the possibility of the trial court
treating and deciding the case as one for ordinary libel without bothering to fully explore the more
important areas of concern, the extremely difficult issues involving government power and freedom
of expression.
However, since we have decided to defer the "chilling effect" issue for a later day, I limit myself to
reiterating the dissenting words of Mr. Justice Jackson in the American case of Beaurnhais v.
Illinois (343 U. S. 250) when he said:
If one can claim to announce the judgment of legal history on any subject, it is that
criminal libel laws are consistent with the concept of ordered liberty only when
applied with safeguards evolved to prevent their invasion of freedom of expression.
In the trial of the libel case against the petitioners, the safeguards in the name of freedom of
expression should be faithfully applied.
Separate Opinions
GUTIERREZ, JR., J., concurring:
I concur with the majority opinion insofar as it involves the three principal issues mentioned in its
opening statement. However, as to the more important issue on whether or not the prosecution of
the libel case would produce a "chilling effect" on press freedom, I beg to reserve my vote. I believe
this is the more important issue in these petitions and it should be resolved now rather that later.
Consistent with our decision in Salonga v. Cruz Pano (134 SCRA 438 [1985]), the Court should not
hesitate to quash a criminal prosecution in the interest of more enlightened and substantial justice
where it is not alone the criminal liability of an accused in a seemingly minor libel case which is
involved but broader considerations of governmental power versus a preferred freedom.
We have in these four petitions the unusual situation where the highest official of the Republic and
one who enjoys unprecedented public support asks for the prosecution of a newspaper columnist,
the publisher and chairman of the editorial board, the managing editor and the business manager in
a not too indubitable a case for alleged libel.
I am fully in accord with an all out prosecution if the effect will be limited to punishing a
newspaperman who, instead of observing accuracy and fairness, engages in unwarranted personal
attacks, irresponsible twisting of facts, of malicious distortions of half-truths which tend to cause
dishonor, discredit, or contempt of the complainant. However, this case is not a simple prosecution
for libel. We have as complainant a powerful and popular President who heads the investigation and
prosecution service and appoints members of appellate courts but who feels so terribly maligned
that she has taken the unorthodox step of going to court inspite of the invocations of freedom of the
press which would inevitably follow.
I believe that this Court should have acted on this issue now instead of leaving the matter to fiscals
and defense lawyers to argue before a trial judge.
There is always bound to be harassment inherent in any criminal prosecution. Where the
harassment goes beyond the usual difficulties encountered by any accused and results in an
unwillingness of media to freely criticize government or to question government handling of sensitive
issues and public affairs, this Court and not a lower tribunal should draw the demarcation line.
As early as March 8, 1918, the decision in United States v. Bustos (37 Phil. 731) stated that
"(c)omplete liberty to comment on the conduct of public men is a scalpel in the case of free speech.
The sharp incision of its probe relieves the abscesses of officialdom. Men in public life may suffer
under a hostile and unjust accusation; the wound can be assuaged with the balm of a clear
conscience." The Court pointed out that while defamation is not authorized, criticism is to be
expected and should be borne for the common good.
In People v. Perfecto (43 Phil. 887 [1922]), the Court stated:
xxx xxx xxx
... No longer is there a Minister of the Crown own or a person in authority of such
exalted position that the citizen must speak of him only with bated breath. "In the eye
of our Constitution and laws, every man is a sovereign, a ruler and a freeman, and
has equal rights with every other man." (at p. 900)
In fact, the Court observed that high official position, instead of affording immunity from slanderous
and libelous charges, would actually invite attacks by those who desire to create sensation. It would
seem that what would ordinarily be slander if directed at the typical person should be examined from
various perspectives if directed at a high government official. Again, the Supreme Court should draw
this fine line instead of leaving it to lower tribunals.
This Court has stressed as authoritative doctrine in Elizalde v. Gutierrez (76 SCRA 448 [1977]) that a
prosecution for libel lacks justification if the offending words find sanctuary within the shelter of the
free press guaranty. In other words, a prosecution for libel should not be allowed to continue, where
after discounting the possibility that the words may not be really that libelous, there is likely to be a
chilling effect, a patently inhibiting factor on the willingness of newspapermen, especially editors and
publishers to courageously perform their critical role in society. If, instead of merely reading more
carefully what a columnist writes in his daily column, the editors tell their people to lay off certain
issues or certain officials, the effect on a free press would be highly injurious.
Because many questions regarding press freedom are left unanswered by our resolution, I must call
attention to our decisions which caution that "no inroads on press freedom should be allowed in the
guise of punitive action visited on what otherwise should be characterized as libel." (Lopez v. Court
of Appeals, 34 SCRA 117 [1970]; See also the citations in Elizalde v. Gutierrez, supra).
<re||an1w>
The United States Supreme Court is even more emphatic, to wit:

In deciding the question now, we are compelled by neither precedent nor policy to
give any more weight to the epithet "libel" than we have to other "mere labels" of
state law. N. A. A. C. P. v. Button, 371 US 415, 429, 9L ed 2d 405, 415, 83 S Ct 328.
Like insurrection, contempt, advocacy of unlawful acts, breach of the peace,
obscenity, solicitation of legal business, and the other various other formulae for the
repression of expression that have been challenged in this Court, libel can claim no
talismanic immunity from constitutional limitations. It must be measured by standards
that satisfy the First Amendment.
xxx xxx xxx
Those who won our independence believed ... that public discussion is a political
duty; and that this should be a fundamental principle of the American government.
They recognized the risk to which all human institutions are subject. But they knew
that order cannot be secured merely through fear of punishment for its infraction; that
it is hazardous to discourage thought, hope and imagination; that fear breeds
repression; that repression breeds hate; that hate menaces stable government; that
the path of safety lies in the opportunity to discuss freely supposed grievances and
proposed remedies; and that the fitting remedy for evil counsel is good ones.
Believing in the power of reason as applied through public discussion, they
eschewed silence coerced by lawthe argument of force in its worst form. ...
Thus we consider this case against the background of a profound national
commitment to the principle that debate on public issues should be uninhibited,
robust, and wide open, and that it may well include vehement, caustic, and
sometimes unpleasantly sharp attacks on government and public officials. ... (at pp.
700-701)
Shunting aside the individual liability of Mr. Luis Beltran, is there a prima facie showing that Messrs.
Maximo Soliven, Antonio V. Roces, Frederick K. Agcaoili, and Godofredo L. Manzanas knowingly
participated in a wilful purveying of falsehood? Considering the free speech aspects of these
petitions, should not a differentiated approach to their particular liabilities be taken instead of lumping
up everybody with the offending columnist? I realize that the law includes publishers and editors but
perhaps the "chilling effect" issue applies with singular effectivity to publishers and editors vis-a-vis
newspaper columnists. There is no question that, ordinarily, libel is not protected by the free speech
clause but we have to understand that some provocative words, which if taken literally may appear
to shame or disparage a public figure, may really be intended to provoke debate on public issues
when uttered or written by a media personality. Will not a criminal prosecution in the type of case
now before us dampen the vigor and limit the variety of public debate? There are many other
questions arising from this unusual case which have not been considered.
I, of course, concur with the Court's opinion because it has decided to limit the issues to narrowly
drawn ones. I see no reason to disagree with the way the Court has resolved them. The first issue
on prematurity is moot. The second issue discusses a procedure now embodied in the recently
amended Rules of Court on how a Judge should proceed before he issues a warrant of arrest. Anent
the third issue, considerations of public policy dictate that an incumbent President should not be
sued. At the same time, the President cannot stand by helplessly bereft of legal remedies if
somebody vilifies or maligns him or her.
The Court has decided to defer the "chilling effect" issue for a later day. To this, I take exception. I
know that most of our fiscals and judges are courageous individuals who would not allow any
considerations of possible consequences to their careers to stand in the way of public duty. But why
should we subject them to this problem? And why should we allow the possibility of the trial court
treating and deciding the case as one for ordinary libel without bothering to fully explore the more
important areas of concern, the extremely difficult issues involving government power and freedom
of expression.
However, since we have decided to defer the "chilling effect" issue for a later day, I limit myself to
reiterating the dissenting words of Mr. Justice Jackson in the American case of Beaurnhais v.
Illinois (343 U. S. 250) when he said:
If one can claim to announce the judgment of legal history on any subject, it is that
criminal libel laws are consistent with the concept of ordered liberty only when
applied with safeguards evolved to prevent their invasion of freedom of expression.
In the trial of the libel case against the petitioners, the safeguards in the name of freedom of
expression should be faithfully applied.
G.R. No. 82544 June 28, 1988
IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF: ANDREW HARVEY, JOHN
SHERMAN and ADRIAAN VAN DEL ELSHOUT, petitioners,
vs.
HONORABLE COMMISSIONER MIRIAM DEFENSOR SANTIAGO, COMMISSION ON
IMMIGRATION AND DEPORTATION, respondent.
MELENCIO-HERRERA, J.:
A petition for Habeas Corpus.
Petitioners Andrew Harvey and John Sherman, 52 and 72 years, respectively, are both American
nationals residing at Pagsanjan, Laguna, while Adriaan Van Elshout, 58 years old, is a Dutch citizen
also residing at Pagsanjan, Laguna.
The case stems from the apprehension of petitioners on 27 February 1988 from their respective
residences by agents of the Commission on Immigration and Deportation (CID) by virtue of Mission
Orders issued by respondent Commissioner Miriam Defensor Santiago of the CID. Petitioners are
presently detained at the CID Detention Center.
Petitioners were among the twenty-two (22) suspected alien pedophiles who were apprehended
after three months of close surveillance by CID agents in Pagsanjan, Laguna. Two (2) days after
apprehension, or on 29 February 1988, seventeen (17) of the twenty-two (22) arrested aliens opted
for self-deportation and have left the country. One was released for lack of evidence; another was
charged not for being a pedophile but for working without a valid working visa. Thus, of the original
twenty two (22), only the three petitioners have chosen to face deportation.
Seized during petitioners apprehension were rolls of photo negatives and photos of the suspected
child prostitutes shown in salacious poses as well as boys and girls engaged in the sex act. There
were also posters and other literature advertising the child prostitutes.
The "Operation Report," on Andrew Harvey and Richard Sherman dated 29 February 1988 stated:
xxx xxx xxx
ANDREW MARK HARVEY was found together with two young boys.
RICHARD SHERMAN was found with two naked boys inside his room.
In respect of Van Den Elshout the "After Mission Report," dated 27 February 1988 read in part:
Noted:
There were two (2) children ages 14 & 16 which subject readily
accepted having been in his care and live-in for quite sometime.
On 4 March 1988, deportation proceedings were instituted against petitioners for being undesirable
aliens under Section 69 of the Revised Administrative Code (Deportation Case No. 88-13). The
"Charge Sheet" read inter alia:
Wherefore, this Office charges the respondents for deportation, as undesirable
aliens, in that: they, being pedophiles, are inimical to public morals, public health and
public safety as provided in Section 69 of the Revised Administrative Code.
On 7 March 1988, Warrants of Arrest were issued by respondent against petitioners for violation of
Sections 37, 45 and 46 of the Immigration Act and Section 69 of the Revised Administrative Code
On the same date, the Board of Special Inquiry III commenced trial against petitioners.
On 14 March 1988, petitioners filed an Urgent Petition for Release Under Bond alleging that their
health was being seriously affected by their continuous detention. Upon recommendation of the
Board of Commissioners for their provisional release, respondent ordered the CID doctor to examine
petitioners, who certified that petitioners were healthy.
On 22 March 1988, petitioners filed a Petition for Bail which, however, respondent denied
considering the certification by the CID physician that petitioners were healthy. To avoid congestion,
respondent ordered petitioners' transfer to the CID detention cell at Fort Bonifacio, but the transfer
was deferred pending trial due to the difficulty of transporting them to and from the CID where trial
was on-going.
On 4 April 1988 petitioner Andrew Harvey filed a Manifestation/Motion stating that he had "finally
agreed to a self-deportation" and praying that he be "provisionally released for at least 15 days and
placed under the custody of Atty. Asinas before he voluntarily departs the country." On 7 April 1988,
the Board of Special Inquiry III allowed provisional release of five (5) days only under certain
conditions. However, it appears that on the same date that the aforesaid Manifestation/ Motion was
filed, Harvey and his co-petitioners had already filed the present petition.
On 4 April 1988, as heretofore stated, petitioners availed of this Petition for a Writ of Habeas Corpus.
A Return of the Writ was filed by the Solicitor General and the Court heard the case on oral
argument on 20 April 1988. A Traverse to the Writ was presented by petitioners to which a Reply was
filed by the Solicitor General.
Petitioners question the validity of their detention on the following grounds:
1) There is no provision in the Philippine Immigration Act of 1940 nor under Section 69 of the
Revised Administrative Code, which legally clothes the Commissioner with any authority to arrest
and detain petitioners pending determination of the existence of a probable cause leading to an
administrative investigation.
2) Respondent violated Section 2, Article III of the 1987 Constitution prohibiting unreasonable
searches and seizures since the CID agents were not clothed with valid Warrants of arrest, search
and seizure as required by the said provision.
3) Mere confidential information made to the CID agents and their suspicion of the activities of
petitioners that they are pedophiles, coupled with their association with other suspected pedophiles,
are not valid legal grounds for their arrest and detention unless they are caught in the act. They
further allege that being a pedophile is not punishable by any Philippine Law nor is it a crime to be a
pedophile.
We reject petitioners' contentions and uphold respondent's official acts ably defended by the Solicitor
General.
There can be no question that the right against unreasonable searches and seizures guaranteed by
Article III, Section 2 of the 1987 Constitution, is available to all persons, including aliens, whether
accused of crime or not (Moncado vs. People's Court, 80 Phil. 1 [1948]. One of the constitutional
requirements of a valid search warrant or warrant of arrest is that it must be based upon probable
cause. Probable cause has been defined as referring to "such facts and circumstances antecedent
to the issuance of the warrant that in themselves are sufficient to induce a cautious man to rely on
them and act in pursuance thereof." (People vs. Syjuco 64 Phil. 667 [1937]; Alverez vs. CFI, 64 Phil.
33 [1937]).
The 1985 Rules on Criminal Procedure also provide that an arrest wit a warrant may be effected by
a peace officer or even a private person (1) when such person has committed, actually committing,
or is attempting to commit an offense in his presence; and (2) when an offense has, in fact, been
committed and he has personal knowledge of facts indicating that the person to be arrested has
committed it (Rule 113, Section 5).
In this case, the arrest of petitioners was based on probable cause determined after close
surveillance for three (3) months during which period their activities were monitored. The existence
of probable cause justified the arrest and the seizure of the photo negatives, photographs and
posters without warrant (See Papa vs. Mago, L-27360, February 28, 1968,22 SCRA 857; People vs.
Court of First Instance of Rizal, L-41686, November 17, 1980, 101 SCRA 86, cited in CRUZ,
Constitutional Law, 1987 ed., p. 143). Those articles were seized as an incident to a lawful arrest
and, are therefore, admissible in evidence (Section 12, Rule 126,1985 Rules on criminal Procedure).
But even assuming arguendo that the arrest of petitioners was not valid at its inception, the records
show that formal deportation charges have been filed against them, as undesirable aliens, on 4
March 1988. Warrants of arrest were issued against them on 7 March 1988 "for violation of Section
37, 45 and 46 of the Immigration Act and Section 69 of the Administrative Code." A hearing is
presently being conducted by a Board of Special Inquiry. The restraint against their persons,
therefore, has become legal. The Writ has served its purpose. The process of the law is being
followed (Cruz vs. Montoya, L-39823, February 25, 1975, 62 SCRA 543). "were a person's detention
was later made by virtue of a judicial order in relation to criminal cases subsequently filed against the
detainee, his petition for hebeas corpus becomes moot and academic" (Beltran vs. Garcia, L-49014,
April 30, 1979, 89 SCRA 717). "It is a fumdamental rule that a writ of habeas corpus will not be
granted when the confinement is or has become legal, although such confinement was illegal at the
beginning" (Matsura vs. Director of Prisons, 77 Phil. 1050 [1947]).
That petitioners were not "caught in the act" does not make their arrest illegal. Petitioners were
found with young boys in their respective rooms, the ones with John Sherman being naked. Under
those circumstances the CID agents had reasonable grounds to believe that petitioners had
committed "pedophilia" defined as "psychosexual perversion involving children" (Kraft-Ebbing
Psychopatia Sexualis p. 555; Paraphilia (or unusual sexual activity) in which children are the
preferred sexual object" (Webster's Third New International Dictionary, 1971 ed., p. 1665) [Solicitor
General's Return of the Writ, on p. 101. While not a crime under the Revised Penal Code, it is
behavior offensive to public morals and violative of the declared policy of the State to promote and
protect the physical, moral, spiritual, and social well-being of our youth (Article II, Section 13, 1987
Constitution).
At any rate, the filing by petitioners of a petition to be released on bail should be considered as a
waiver of any irregularity attending their arrest and estops them from questioning its validity (Callanta
v. Villanueva, L-24646 & L-24674, June 20, 1977, 77 SCRA 377; Bagcal vs. Villaraza, L-61770,
January 31, 1983, 120 SCRA 525).
The deportation charges instituted by respondent Commissioner are in accordance with Section
37(a) of the Philippine Immigration Act of 1940, in relation to Section 69 of the Revised
Administrative Code. Section 37(a) provides in part:
(a) The following aliens shall be arrested upon the warrant of the Commissioner of
Immigration and Deportation or any other officer designated by him for the purpose
and deported upon the warrant of the Commissioner of Immigration and Deportation
after a determination by the Board of Commissioners of the existence of the ground
for deportation as charged against the alien;
xxx xxx xxx
The foregoing provision should be construed in its entirety in view of the summary and indivisible
nature of a deportation proceeding, otherwise, the very purpose of deportation proceeding would be
defeated.
Section 37(a) is not constitutionally proscribed (Morano vs. Vivo, L-22196, June 30, 1967, 20 SCRA
562). The specific constraints in both the 1935 1 and 1987 2 Constitutions, which are substantially
Identical, contemplate prosecutions essentially criminal in nature. Deportation proceedings, on the other
hand, are administrative in character. An order of deportation is never construed as a punishment. It is
preventive, not a penal process. It need not be conducted strictly in accordance with ordinary Court
proceedings.
It is of course well-settled that deportation proceedings do not constitute a criminal
action. The order of deportation is not a punishment, (Maliler vs. Eby, 264 U.S., 32), it
being merely the return to his country of an alien who has broken the conditions upon
which he could continue to reside within our borders (U.S. vs. De los Santos, 33
Phil., 397). The deportation proceedings are administrative in character, (Kessler vs.
Stracker 307 U.S., 22) summary in nature, and need not be conducted strictly in
accordance with the ordinary court proceedings (Murdock vs. Clark, 53 F. [2d], 155).
It is essential, however, that the warrant of arrest shall give the alien sufficient
information about the charges against him, relating the facts relied upon. (U.S. vs.
Uhl 211 F., 628.) It is also essential that he be given a fair hearing with the assistance
of counsel, if he so desires, before unprejudiced investigators (Strench vs. Pedaris,
55 F. [2d], 597; Ex parte Jew You On, 16 F. [2d], 153). However, all the strict rules of
evidence governing judicial controversies do not need to be observed; only such as
are fumdamental and essential like the right of cross-examination. (U.S. vs. Hughes,
104 F. [2d], 14; Murdock vs. Clark, 53 F. [2d], 155.) Hearsay evidence may even be
admitted, provided the alien is given the opportunity to explain or rebut it (Morrell vs.
Baker, 270 F., 577; Sercerchi vs. Ward, 27 F. Supp., 437). (Lao Tang Bun vs. Fabre
81 Phil. 682 [1948]).
The ruling in Vivo vs. Montesa (G. R. No. 24576, July 29, 1968, 24 SCRA 155) that "the issuance of
warrants of arrest by the Commissioner of Immigration, solely for purposes of investigation and
before a final order of deportation is issued, conflicts with paragraph 3, Section I of Article III of the
Constitution" (referring to the 1935 Constitution) 3 is not invocable herein. Respondent Commissioner's
Warrant of Arrest issued on 7 March 1988 did not order petitioners to appear and show cause why they
should not be deported. They were issued specifically "for violation of Sections 37, 45 and 46 of the
Immigration Act and Section 69 of the Revised Administrative Code." Before that, deportation proceedings
had been commenced against them as undesirable aliens on 4 March 1988 and the arrest was a step
preliminary to their possible deportation.
Section 37 of the Immigration Law, which empowers the Commissioner of

Immigration to issue warrants for the arrest of overstaying aliens is constitutional.
The arrest is a stop preliminary to the deportation of the aliens who had violated the
condition of their stay in this country. (Morano vs. Vivo, L-22196, June 30, 1967, 20
SCRA 562).
To rule otherwise would be to render the authority given the Commissioner nugatory to the detriment
of the State.
The pertinent provision of Commonwealth Act No. 613, as amended, which gives
authority to the Commissioner of Immigration to order the arrest of an alien
temporary visitor preparatory to his deportation for failure to put up new bonds
required for the stay, is not unconstitutional.
xxx xxx xxx
... Such a step is necessary to enable the Commissioner to prepare the ground for
his deportation under Section 37[al of Commonwealth Act 613. A contrary
interpretation would render such power nugatory to the detriment of the State. (Ng
Hua To vs. Galang, G. R. No. 10145, February 29, 1964, 10 SCRA 411).
"The requirement of probable cause, to be determined by a Judge, does not extend to deportation
proceedings." (Morano vs. Vivo, supra, citing Tiu Chun Hai vs. Commissioner, infra). There need be
no "truncated" recourse to both judicial and administrative warrants in a single deportation
proceedings.
The foregoing does not deviate from the ruling in Qua Chee Gan vs. Deportation Board (G. R. No.
10280, September 30, 1963, 9 SCRA 27 [1963]) reiterated in Vivo vs. Montesa, supra, that "under
the express terms of our Constitution (the 1935 Constitution), it is therefore even doubtful whether
the arrest of an individual may be ordered by any authority other than a judge if the purpose is
merely to determine the existence of a probable cause, leading to an administrative investigation."
For, as heretofore stated, probable cause had already been shown to exist before the warrants of
arrest were issued.
What is essential is that there should be a specific charge against the alien intended to be arrested
and deported, that a fair hearing be conducted (Section 37[c]) with the assistance of counsel, if
desired, and that the charge be substantiated by competent evidence. Thus, Section 69 of the
Revised Administrative Code explicitly provides:
Sec. 69. Deportation of subject of foreign power. A subject of a foreign power residing
in the Philippines shall not be deported, expelled, or excluded from said Islands or
repatriated to his own country by the President of the Philippines except upon prior
investigation, conducted by said Executive or his authorized agent, of the ground
upon which such action is contemplated. In such a case the person concerned shall
be informed of the charge or charges against him and he shall be allowed not less
than 3 days for the preparation of his defense. He shall also have the right to be
heard by himself or counsel, to produce witnesses in his own behalf, and to crossexamine the opposing witnesses.
The denial by respondent Commissioner of petitioners' release on bail, also challenged by them,
was in order because in deportation proceedings, the right to bail is not a matter of right but a matter
of discretion on the part of the Commissioner of Immigration and Deportation. Thus, Section 37(e) of
the Philippine Immigration Act of 1940 provides that "any alien under arrest in a deportation
proceeding may be released under bond or under such other conditions as may be imposed by the
Commissioner of Immigration." The use of the word "may" in said provision indicates that the grant
of bail is merely permissive and not mandatory on the part of the Commissioner. The exercise of the
power is wholly discretionary (Ong Hee Sang vs. Commissioner of Immigration, L-9700, February
28,1962, 4 SCRA 442). "Neither the Constitution nor Section 69 of the Revised Administrative Code
guarantees the right of aliens facing deportation to provisional liberty on bail." (Tiu Chun Hai et al vs.
Deportation Board, 104 Phil. 949 [1958]). As deportation proceedings do not partake of the nature of
a criminal action, the constitutional guarantee to bail may not be invoked by aliens in said
proceedings (Ong Hee Sang vs. Commissioner of Immigration, supra).
Every sovereign power has the inherent power to exclude aliens from its territory upon such grounds
as it may deem proper for its self-preservation or public interest (Lao Tan Bun vs. Fabre 81 Phil. 682
[1948]). The power to deport aliens is an act of State, an act done by or under the authority of the
sovereign power (In re McCulloch Dick, 38 Phil. 41 [1918]). It is a police measure against
undesirable aliens whose continued presence in the country is found to be injurious to the public
good and the domestic tranquility of the people (Forbes vs. Chuoco Tiaco et al., 16 Phil. 534 [1910]).
Particularly so in this case where the State has expressly committed itself to defend the tight of
children to assistance and special protection from all forms of neglect, abuse, cruelty, exploitation,
and other conditions prejudicial to their development (Article XV, Section 3[2]). Respondent
Commissioner of Immigration and Deportation, in instituting deportation proceedings against
petitioners, acted in the interests of the State.
WHEREFORE, the Petition is dismissed and the Writ of Habeas Corpus is hereby denied.
SO ORDERED
FIRST DIVISION
[G.R. No. L-27331 : July 30, 1981.]
ELISEO ALIMPOOS, CIRIACA ALIMPOOS, SGT. MILLARDO M. PATES, PEDRO
BACLAY, CATALINO YAMILO, RAFAEL CAPANGPANGAN, DALMACIO YGOT and
EUFROCINA ESTORES, Petitioners, vs. THE HONORABLE COURT OF APPEALS,
HONORABLE JUDGE MONTANO A. ORTIZ, REYNALDO MOSQUITO and MATILDE
ABASTILLAS MOSQUITO, Respondents.
DECISION
MELENCIO-HERRERA, J.:
Petitioner-spouses, Eliseo Alimpoos and Ciriaca Alimpoos, shall hereinafter be called the
Offended Parties. Petitioners Pedro Baclay, Catalino Yamilo, Rafael Capangpangan, Dalmacio
Ygot, Eufrocina Estores and Sgt. Millardo M. Pates may hereinafter be referred to as the
Witnesses.
Respondent Reynaldo Mosquito will hereinafter be called the Accused. Respondent Matilde A.
Mosquito is the Accuseds wife. Respondent Court of Appeals will be termed the Appellate
Tribunal; respondent Judge Montano A. Ortiz, as respondent Trial Judge, and the Municipal
Judge, as such.
In this Petition for Certiorari, the Offended Parties and the Witnesses seek the reversal of
the Decision of the Appellate Tribunal, upholding the disallowance of the Offended Parties
appeal by the Court of First Instance of Agusan (the Trial Court, for short) in Civil Case No.
1088, entitled Reynaldo Mosquito, et al. vs. Eliseo Alimpoos, et al, wherein respondent
Trial Judge granted the Accuseds petition for Habeas Corpus and declared his detention
illegal. He also enjoined the prosecution of Criminal Case No. 458 of the Municipal Court of
Bayugan, Agusan (hereinafter called Criminal Case) where the Accused had been arrested.
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The Accused was detained by the Chief of Police of Bayugan, Agusan, by virtue of a Warrant
of Arrest issued by the Municipal Judge in the Criminal Case, which was a prosecution for
Robbery with Less Serious Physical Injuries. The place allegedly robbed belonged to the
Offended Parties. Contending that the Warrant was issued without the observance of the
legal requirements for the issuance thereof, the Accused, then detained, and his wife
instituted the Habeas Corpus case before the Trial Court. Named as defendants in the
original complaint were the Offended parties and the Witnesses (as witnesses for the
prosecution) all of whom are residents of Agusan. In an amended complaint, the two
arresting policemen, the Chief of Police, and the Municipal Judge were added as codefendants.
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The Complaint of the Accused was premised on the alleged violation of Article
32 (4), (8), (15), (16), (17) and (19) of the Civil Code, and Article 269 of the Revised
Penal Code, by defendants therein who were said to have been instrumental in causing the
detention and arrest of the Accused. It prayed for the Accuseds release from detention, as
well as for the issuance of a Writ of Preliminary Injunction to enjoin the Offended Parties
and the Witnesses, and the Municipal Judge and/or their representatives, from proceeding
with the Criminal Case. Actual, moral and exemplary damages, attorneys fees, and costs
were also prayed for.
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The Offended Parties and the Witnesses, except Sgt. Pates, were represented by the law
firm of Seno, Mendoza and Associates, with offices located in Cebu City. They contended
that they had nothing to do with the Accuseds detention and arrest. The Municipal Judge,
the Chief of Police, and Patrolmen Libres and Galimba, who were represented by the Acting
Provincial Fiscal of Butuan City, alleged that the Warrant of Arrest was validly issued. Sgt.
Pates was represented by Capt. Igualdad Cunanan, and reiterated substantially the same
defense.
After due hearing in the Habeas Corpus case, respondent Trial Judge issued the appealed
Order (the ORDER, for short), dated March 26, 1966, declaring the detention of the
Accused illegal and granting the Writ of Habeas Corpus as well as the Preliminary Injunction
prayed for upon the filing of the required bond. The dispositive portion of the ORDER reads:
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WHEREFORE, judgment is hereby rendered declaring illegal the detention of plaintiff

Reynaldo Mosquito by virtue of a warrant of arrest issued without the observance of
the fundamental legal requirements prior to the issuance of said Writ. The petition
for habeas corpus is therefore granted and it is hereby ordered that said detention
prisoner be forthwith released from custody, and set at liberty and that upon the
filing of the bond in the amount of P1,000.00 a writ of preliminary injunction issue
restraining the Municipal Judge of Bayugan, Agusan, defendant Vicente Galicia and
the rest of the defendants, their attorneys, agents or representatives from
proceeding with Criminal Case No. 458 entitled The People of the Philippines versus
Reynaldo Mosquito et als., for the crime of Robbery with Less Serious Physical
Injuries, with costs against the defendants in these habeas corpus and preliminary
injunction proceedings.
SO ORDERED. 1
The Acting Provincial Fiscal of Agusan received copy of said ORDER on March 31, 1966, and
on April 1, 1966, moved for extension of time within which to appeal, but eventually
desisted from doing so.
On April 4, 1966, counsel for the Offended Parties and the Witnesses mailed from Cebu City
a Notice of Appeal to the Court of Appeals stating that:
Undersigned counsel received a copy of the order only today (April 4, 1966) which
copy was handed to him by defendant (petitioner) Eliseo Alimpoos.
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The appeal was opposed by the Accused on the ground that it was filed beyond the 48-hour
reglementary period within which to perfect an appeal in Habeas Corpus proceedings.
On April 23, 1966, over the Offended Parties objections, respondent Trial Judge dismissed
their appeal thus:
The notice of appeal of the Provincial Fiscal or of Atty. Seno for the defendants,
having been filed out of time the Order of March 26, 1966 granting the habeas
corpus is now final and executory. The urgent ex-parte motion to grant extension to
file notice of appeal does not interrupt the running of the period fixed by law for filing
an appeal which is forty-eight hours from receipt of the order. 2
No reconsideration was prayed for by the Provincial Fiscal.
The Offended Parties, however, resorted to a Mandamus proceeding before the Court of
Appeals seeking to compel respondent Trial Judge to give due course to said appeal.
On January 11, 1967, the Appellate Tribunal, 3 in CA-G.R. No. 37781-R, denied Mandamus
stating in part:
As the records show that copy of the questioned Order was received by counsel on
March 30, 1966, the notice of appeal was not filed within the 48-hour limit.
Petitioners appeal was therefore filed out of time and the judgment has become
final.
In view of the foregoing, this petition is hereby denied. Costs against petitioners.
Hence, this Petition for Certiorari, filed on March 13, 1967, praying that the Decision of the
Appellate Tribunal be set aside and the appeal interposed by the Offended Parties in the
Habeas Corpus case be allowed.
We gave due course to the Petition on March 31, 1967, and after the filing of the respective
Briefs, the case was considered submitted for decision on April 19, 1968.
The Offended Parties and the Witnesses pose the following Assignments of Error:
I
The Honorable Court of Appeals erred in finding that counsel, however, has not
presented a shred of proof to bolster his claim of actual receipt of the order, Annex
B on April 4, 1966, save of his own self-serving assertions, which cannot prevail
over the court record, (Annex 1 of Answer) certified to by the Clerk of Court,
bearing the true actual date when the parties and counsel herein received their
corresponding copies. The same certified true copy of the order shows that the law
office of herein counsel received its copy on March 30, 1966 not on April 4, 1966;
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II
The Honorable Court of Appeals erred in holding that respondent Judge was fully
justified in relying on its own record to determine the date on which petitioners
counsel received copy of the order, without any proof thereof, because courts will
take judicial notice of its records and of the facts which the same records establish
and which are known to judges by reason of their judicial functions.
III
The Honorable Court of Appeals erred in finding that as the records show that copy
of the questioned order was received by counsel on March 30, 1966, the notice of
appeal was not filed within the 48-hour limit.
IV
The Honorable Court of Appeals erred in finding that petitioners appeal was,
therefore, filed out of time and the judgment has become final.
V
The Honorable Court of Appeals erred in denying the Motion for Reconsideration
without requiring the adverse party to answer the said Motion for Reconsideration.
VI
The Honorable Court of Appeals erred in failing to pass upon the issues raised in the
lower court and in the Court of Appeals.
The technical issue of timeliness of the appeal will first be considered. Counsel for the
Offended Parties alleges that he received a copy of the ORDER only on April 4, 1966 from
the Offended Party, Eliseo Alimpoos, who handed him the copy in Cebu City. The latter had
received it on March 31, 1966. Counsel contends that the reglementary period to appeal can
not be reckoned from the latter date because, under the Rules, when a party is represented
by counsel, notice should be sent, not to the party, but to his counsel of record. Counsel for
the Offended Parties and the Witnesses further maintains that the period from which to
reckon the period of appeal should actually be April 14, 1966 when he actually received,
through the mails, his copy of the ORDER, as shown by the rubber stamp of his office
appearing on the upper right hand corner of a duplicate copy of the ORDER. 4
Respondent Trial Judge and the Appellate Tribunal alike found the foregoing assertion selfserving and relied instead on the last page of the ORDER, 5 purportedly showing that the
law office of counsel for the Offended Parties and the Witnesses received its copy on March
30, 1966 and not on April 4, 1966, hence the disallowance of the appeal by respondent Trial
Judge, and its affirmance by the Appellate Court.
The crucial last page is reproduced hereunder exactly as it appears:
CIVIL CASE NO. 1088
ORDER
and preliminary injunction proceedings.
SO ORDERED.
Done this 26th day of March, 1966 at the City of Butuan.
(SGD.) MONTANO A. ORTIZ

JUDGE
MAO-bb.
Recd.
31/3/66 (initial)
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Received:
(Sgd.) Illegible Mun. Judge (Sgd.) Illegible 3/30/66 7:00 evening
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3/31/66 (Sgd.) B. Galimba 3/30/00 7:00

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(Sgd.) Eliseo Alimpoos
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Received copy March 31, 1966 8:00 A.M.

Ciriaco Alimpoos
Pedro Baklay
Catalino Yamilo
Rafael Capangpangan
Dalmacio Ygot
Eufrocina Estores
By: (Sgd.) Eliseo Alimpoos

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March 31, 1966

(Sgd.) Illegible
(Sgd.) Illegible
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For the Chief of Police 3-30-66

TO ATTYS. SENO, MENDOZA,
RUIZ & ASS. & CAPT. CUNANAN
BY REG. MAIL #11633 & #11634
A certified true copy:

(s) MACARIO C. CONDE
(t) MACARIO C. CONDE
Clerk of Court 6 (emphasis supplied)
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Obviously, copies of the ORDER intended for Attys. Seno, Mendoza, Ruiz & Ass. & Capt.
Cunanan were sent by registered mail with Receipts Nos. 11633 and 11634. Receipt No.
11633 is the registry number corresponding to the copy for the law office, and Receipt No.
11634 that for Capt. Cunanan. This is borne out by the envelope 7 from the Office of the
Clerk of Court Butuan City addressed to Seno, Mendoza, Ruiz and Associates, Cor.
Magallanes-D Jakosalem Sts., Aboitiz Bldg., Cebu City with the following markings:
On the face of the envelope lower left hand corner:
REGISTERED
CITY OF BUTUAN
PHILIPPINES
March 31, 1966
Superimposed on it in ink is No. 11633
On the back of the envelope appears a big diagonal stamp FOR OFFICIAL USE
ONLY and two post office stamp marks:
REGISTERED
CITY OF BUTUAN
PHILIPPINES
March 31, 1966
CEBU CITY
Received
April 11, 1966
Philippines
Since the registered mail was received in Cebu City only on April 11, 1966, it is not unlikely
that the law office and addressee, as alleged by it, received the mail only three days after,
or on April 14, 1966.
The notation
(Sgd.) Illegible
3-30-66
appearing above the following note:
To Attys. Seno, Mendoza, Ruiz & Ass. &
Capt. Cunanan by reg. mail #11633 & #11634

can not refer to personal receipt by the said law office for the obvious reason that its office
being at Cebu City, personal service would not have been possible in Agusan.
It is apparent then that both respondent Trial Judge and the Appellate Tribunal committed
error in holding that the Offended Parties appeal was interposed beyond the reglementary
period. Service on the Offended Party, Eliseo Alimpoos, on March 31, 1966 cannot be
deemed as notice in law to his counsel. 8 Under the circumstances, therefore, reliance may
be placed on the assertion of counsel that the Offended Party, Eliseo Alimpoos, had given
him a copy of the ORDER only on April 4, 1966, which must be deemed as the date of notice
to said counsel of the ORDER. Counsel lost no time in mailing his Notice of Appeal on the
same day, April 4, 1966 from Cebu. 9 Procedurally, the appeal was seasonably filed.
Although the Appellate Tribunal had committed error in its appreciation of the date when the
lawyers of the Offended Parties were served notice of the ORDER, we believe it would not be
justifiable to reverse and to direct respondent Trial Judge to allow the Offended Parties to
appeal. Instead, we are opting to render a practical judgment.
1. The original and amended complaints filed by the Offended Parties with the Trial Court
contained three causes of action, principally for Habeas Corpus and for damages. However,
the proceedings were conducted purely as a Habeas Corpus case. The original complaint
was filed on February 22, 1966, and resolved on March 26, 1966, in keeping with the
speedy and effectual character of Habeas Corpus proceedings. 10
The ORDER treated the case as exclusively a Habeas Corpus proceeding, ignoring the
Accuseds prayer for damages. The lawyers of the Offended Parties attempted to appeal
from the ORDER in accordance with Section 19 of Rule 41, captioned who may appeal in
Habeas Corpus cases. The Appellate Tribunal resolved in the mandamus case as relating to
a Habeas Corpus case.
2. Because the proceedings before the trial Court was a Habeas Corpus case, the complaint
filed was obviously defective. A Habeas Corpus proceeding is not a suit between parties.
Not a suit between the parties. While the issuance of the writ is to all intents and
purposes the commencement of a civil action, a suit, yet technically the proceedings by
Habeas Corpus is in no sense a suit between private parties. It is an inquisition by the
government, at the suggestion and instance of an individual, most probably, but still in the
name and capacity of the sovereign. It may be analogized to a proceeding in rem and
instituted for the sole purpose of fixing the status of a person. The person restrained is the
central figure in the transaction. The proceeding is instituted solely for his benefit. As it is
not designed to obtain redress against anybody, and as no judgment can be entered against
anybody, and as there is no real plaintiff and defendant, there can be no suit in the technical
sense.
(Extraordinary Legal Remedies, Forrest G. Ferris & Forrest G. Ferris, Jr., p. 28)
chanroblesvirtualawlibrary
The Accused, therefore, should have limited his complaint against the Chief of Police of
Bayugan, the person having him in alleged illegal custody. That is the clear implication in
the following provisions of Section 3, Rule 102, which enumerates what should be set forth
in a petition for Habeas Corpus:
SEC. 3. Requisites of application therefor. Application for the writ shall be by
petition signed and verified either by the party for whose relief it is intended, or by
some person on his behalf, and shall set forth:
(a) That the person in whose behalf the application is made is imprisoned or
restrained of his liberty;
(b) The officer or name of the person by whom he is so imprisoned or restrained;

or, if both are unknown or uncertain, such officer or person may be described
by an assumed appellation, and the person who is served with the writ shall
be deemed the person intended;
(c) The place where he is so imprisoned or restrained, if known;
(d) A copy of the commitment or cause of detention of such person, if it can be
procured without impairing the efficiency of the remedy; or, if the
imprisonment or restraint is without any legal authority, such fact shall
appear.
The Accuseds allegation as to, and prayer for, damages was out of place. In Habeas Corpus
cases, the judgment in favor of the applicant cannot contain a provision for damages. It has
to be confined to what is provided for in Section 15, Rule 102, which reads:
SEC. 15. When prisoner discharged if no appeal. When the court or Judge has
examined into the cause of caption and restraint of the prisoner, and is satisfied that
he is unlawfully imprisoned or restrained, he shall forthwith order his discharge from
confinement, but such discharge shall not be effective until a copy of the order has
been served on the officer or person detaining the prisoner. If the officer or person
detaining the prisoner does not desire to appeal, the prisoner shall be forthwith
released.
It will be observed that there is no provision for serving copy of the discharge on any other
private party defendant, nor for an award of damages.
As it has been held:
The sole function of the writ is to relieve from unlawful imprisonment, and ordinarily
it cannot properly be used for any other purpose. Thus it has been held that the writ
cannot properly be used: To enforce a right to service; to determine whether a
person has committed a crime; in determine a disputed interstate boundary line; to
punish respondent or to afford the injured person redress, for the illegal detention;
to recover damages or other money award; . .
(emphasis supplied) (Vt In re
St. Onge, 108 A203, 93 Vt. 373; NY People vs. Prior, 182 NYS 577, 112 Misc. 208
[39 C.J.S. 430]).
cra
chanroblesvirtualawlibrary
cranad
3. The Accused has challenged the personality of the Offended Parties to interpose the
appeal, premised on Section 19 of Rule 41 of the Rules of Court, which provides:
SEC 19. Who may appeal in habeas corpus cases. The appeal in habeas corpus
cases may be taken in the name of the person detained or of the officer or person
detaining him. But if the detention is by reason of civil proceedings the party in
interest or the person who caused the detention shall be entitled to control the
appeal; and if, by virtue of criminal proceedings, the provincial fiscal or the city fiscal
as the case may be, is entitled to control the appeal on behalf of the government,
subject to the right of the Solicitor General to intervene
(Rule 41).
chanroble svirtualawlibrary
It is indisputable that the Habeas Corpus case arose by virtue of criminal proceedings in the
Criminal case. Pursuant to the aforequoted provision, therefore, it was the Provincial Fiscal
who was entitled to control the appeal on behalf of the Government. In this case, although
the Provincial Fiscal of Agusan, filed a Motion for Extension of Time to Perfect Appeal on
April 1, 1966, he had nevertheless abandoned the same. Neither did he take steps for the
reconsideration of respondent Trial Judges Order of April 23, 1966 dismissing the appeal.
The inaction of the Fiscal may be deemed to have been an admission on his part of the
unmeritoriousness of an appeal. As in criminal proceedings, his sound discretion on the
matter should be deemed controlling, and it has to be held that the Offended Parties were
bereft of personality to prosecute the appeal.
Noteworthy is the fact that in the instant case, the Offended Parties had alleged in their
Answer 11 that they were not detaining the Accused and had nothing to do with the Warrant
of Arrest issued against him. With all the more reason then that they had no personality to
interpose an appeal from a judicial Order granting the Writ of Habeas Corpus and ordering
the release of a person detained.
4. It has been noted that the ORDER contains a provision enjoining the prosecution of the
Accused in the Criminal Case. That is error. If the Accused was illegally detained because he
was arrested without a preliminary examination, what should have been done was to set
aside the warrant of arrest and order the discharge of the Accused, but without enjoining
the Municipal Judge from conducting a preliminary examination and afterwards properly
issuing a warrant of arrest. Habeas Corpus proceedings are not meant to determine criminal
responsibility. This principle was enunciated in Lee Ching v. Collector of Customs, 33 Phil.
329 (1916) where it was said:
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Proceedings in habeas corpus are separate and distinct from the main case from
which the proceedings spring. They rarely, if ever, touch the merits of the case and
require no pronouncement with respect thereto.
When a preliminary investigation is not held, or is improperly held, the procedure is not to
dismiss the case, or enjoin its prosecution, but to have the preliminary investigation
conducted. As stated in People v. Figueroa, 27 SCRA, 1239, 1247 (1969):
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Assuming that the trial court felt that the accused should have been given more
ample chance and opportunity to be heard in the preliminary investigation, then
what it could properly have done, since in its own Order it recognized that Fiscal
Abaca had conducted a preliminary investigation although hurriedly in its opinion,
was not to dismiss the information but to hold the case in abeyance and conduct its
own investigation or require the fiscal to hold a reinvestigation. This Court, speaking
through now Mr. Chief Justice Concepcion in People vs. Casiano, had stressed this as
the proper procedure, pointing out that the absence of such investigation did not
impair the validity of the information or otherwise render it defective. Much less did it
affect the jurisdiction of the Court of First Instance over the present case.
5. As a matter of fact, Habeas Corpus was not the proper remedy for the Accused. In a case
where a warrant of arrest was assailed for an alleged improper preliminary examination, this
Court, in Luna v. Plaza, 26 SCRA, 310, 323 (1968), said:
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At any rate, we believe that, if at all, the remedy available to the petitioner herein,
under the circumstances stated in this opinion, is not a petition for a writ of habeas
corpus but a petition to quash the warrant of arrest or a petition for reinvestigation
of the case by the respondent Municipal Judge or by the Provincial Fiscal.
It is the general rule that Habeas Corpus should not be resorted to when there is another
remedy available.
As a general rule, a writ of habeas corpus will not be granted where relief may be
had or could have been procured by resort to another general remedy, such as
appeal or writ of error. But the existence of another remedy does not necessarily
preclude a resort to the writ of habeas corpus to obtain relief from illegal detention,
especially where the other remedy is deemed not to be as effective as that of habeas
corpus. 12
Time and again, it has been explained that Habeas Corpus cannot function as a writ of error.
13
6. It has further been noted that respondent Trial Judge erred in adjudging costs against
defendants in the Habeas Corpus case. When a person confined under color of proceedings
in a criminal case is discharged, the costs shall be taxed against the Republic 14
7. The Accused was charged with Robbery with Less Serious Physical Injuries in early 1966.
Through the error of the Municipal Judge in issuing the warrant of arrest without conducting
a preliminary examination, the Accused was able to institute the Habeas Corpus case which
has pended to this date, or for fifteen years. The error of the Municipal Judge has
considerably retarded the turning of the wheels of justice. It should be meet to reiterate the
following admonition made in the aforecited Luna-Plaza case:
We wish to stress, however, that what has been stated in this opinion is certainly
not intended to sanction the return to the former practice of municipal judges of
simply relying upon affidavits or sworn statements that are made to accompany the
complaints that are filed before them, in determining whether there is a probable
cause for the issuance of a warrant of arrest. That practice is precisely what is
sought to be voided by the amendment of Section 87 (c) of Republic Act
296 (Judiciary Act of 1948) which requires that before a municipal judge issues a
warrant of arrest he should first satisfy himself that there is a probable cause by
examining the witnesses personally, and that the examination must be under oath
and reduced to writing in the form of searching questions and answers. It is obvious
that the purpose of this amendment is to prevent the issuance of a warrant of arrest
against a person based simply upon affidavits of witnesses who made, and swore to,
their statements before a person or persons other than the judge before whom the
criminal complaint is filed. We wish to emphasize strict compliance by municipal or
city judges of the provision of Section 87(c) of the Judiciary Act of 1948, as amended
by Republic Act 3828, in order to avoid malicious and/or unfounded criminal
prosecution of persons.
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In view of the foregoing considerations, it should be practical to resolve this case in a

manner that will not further protract the matter brought to this instance. It will not do
merely to reverse and set aside the appealed decision of the Appellate Tribunal, for it will
leave the ORDER of respondent Trial Judge outstanding with its injunction against the
further prosecution of the Criminal Case.
WHEREFORE, in the distinct understanding that this Court has not acted in a proper Habeas
Corpus proceeding, the Warrant of Arrest issued against Reynaldo Mosquito in Criminal Case
No. 458 of the Municipal Court of Bayugan, Agusan, the Order of March 26, 1966 issued in
Civil Case No. 1088 of the Court of First Instance of Agusan, as well as the Decision of the
Court of Appeals in its case CA-G.R. No. 37781-R, are hereby set aside; and the
proceedings in the last two cases mentioned are invalidated.
Without pronouncement as to costs.
SO ORDERED.
G.R. No. 186529
August 3, 2010
PEOPLE OF THE PHILIPPINES, Appellee,

vs.
JACK RACHO y RAQUERO, Appellant.
DECISION
NACHURA, J.:
On appeal is the Court of Appeals (CA) Decision1 dated May 22, 2008 in CA-G.R. CR-H.C. No.
00425 affirming the Regional Trial Court2 (RTC) Joint Decision3 dated July 8, 2004 finding appellant
Jack Racho y Raquero guilty beyond reasonable doubt of Violation of Section 5, Article II of Republic
Act (R.A.) No. 9165.
The case stemmed from the following facts:
On May 19, 2003, a confidential agent of the police transacted through cellular phone with appellant
for the purchase of shabu. The agent later reported the transaction to the police authorities who
immediately formed a team composed of member of the Philippine Drug Enforcement Agency
(PDEA), the Intelligence group of the Philippine Army and the local police force to apprehend the
appellant.4 The agent gave the police appellants name, together with his physical description. He
also assured them that appellant would arrive in Baler, Aurora the following day.
On May 20, 2003, at 11:00 a.m., appellant called up the agent and informed him that he was on
board a Genesis bus and would arrive in Baler, Aurora, anytime of the day wearing a red and white
striped T-shirt. The team members then posted themselves along the national highway in Baler,
Aurora. At around 3:00 p.m. of the same day, a Genesis bus arrived in Baler. When appellant
alighted from the bus, the confidential agent pointed to him as the person he transacted with earlier.
Having alighted from the bus, appellant stood near the highway and waited for a tricycle that would
bring him to his final destination. As appellant was about to board a tricycle, the team approached
him and invited him to the police station on suspicion of carrying shabu. Appellant immediately
denied the accusation, but as he pulled out his hands from his pants pocket, a white envelope
slipped therefrom which, when opened, yielded a small sachet containing the suspected drug. 5
The team then brought appellant to the police station for investigation. The confiscated specimen
was turned over to Police Inspector Rogelio Sarenas De Vera who marked it with his initials and with
appellants name. The field test and laboratory examinations on the contents of the confiscated
sachet yielded positive results for methamphetamine hydrochloride. 6
Appellant was charged in two separate Informations, one for violation of Section 5 of R.A. 9165, for
transporting or delivering; and the second, of Section 11 of the same law for possessing, dangerous
drugs, the accusatory portions of which read:
"That at about 3:00 oclock (sic) in the afternoon on May 20, 2003 in Baler, Aurora and within the
jurisdiction of this Honorable Court, the said accused, did then and there, unlawfully, feloniously and
willfully have in his possession five point zero one (5.01) [or 4.54] grams of Methamphetamine
Hydrochloride commonly known as "Shabu", a regulated drug without any permit or license from the
proper authorities to possess the same.
CONTRARY TO LAW."7
"That at about 3:00 oclock (sic) in the afternoon on May 20, 2003 in Baler, Aurora, the said accused
did then and there, unlawfully, feloniously and willfully transporting or delivering dangerous drug of
5.01 [or 4.54] grams of shabu without any permit or license from the proper authorities to transport
the same.
CONTRARY TO LAW."8
During the arraignment, appellant pleaded "Not Guilty" to both charges.

At the trial, appellant denied liability and claimed that he went to Baler, Aurora to visit his brother to
inform him about their ailing father. He maintained that the charges against him were false and that
no shabu was taken from him. As to the circumstances of his arrest, he explained that the police
officers, through their van, blocked the tricycle he was riding in; forced him to alight; brought him to
Sea Breeze Lodge; stripped his clothes and underwear; then brought him to the police station for
investigation.9
On July 8, 2004, the RTC rendered a Joint Judgment10 convicting appellant of Violation of Section 5,
Article II, R.A. 9165 and sentencing him to suffer the penalty of life imprisonment and to pay a fine
of P500,000.00; but acquitted him of the charge of Violation of Section 11, Article II, R.A. 9165. On
appeal, the CA affirmed the RTC decision.11
Hence, the present appeal.
In his brief,12 appellant attacks the credibility of the witnesses for the prosecution. He likewise avers
that the prosecution failed to establish the identity of the confiscated drug because of the teams
failure to mark the specimen immediately after seizure. In his supplemental brief, appellant assails,
for the first time, the legality of his arrest and the validity of the subsequent warrantless search. He
questions the admissibility of the confiscated sachet on the ground that it was the fruit of the
poisonous tree.
The appeal is meritorious.
We have repeatedly held that the trial courts evaluation of the credibility of witnesses and their
testimonies is entitled to great respect and will not be disturbed on appeal. However, this is not a
hard and fast rule. We have reviewed such factual findings when there is a showing that the trial
judge overlooked, misunderstood, or misapplied some fact or circumstance of weight and substance
that would have affected the case.13
Appellant focuses his appeal on the validity of his arrest and the search and seizure of the sachet of
shabu and, consequently, the admissibility of the sachet. It is noteworthy that although the
circumstances of his arrest were briefly discussed by the RTC, the validity of the arrest and search
and the admissibility of the evidence against appellant were not squarely raised by the latter and
thus, were not ruled upon by the trial and appellate courts.
It is well-settled that an appeal in a criminal case opens the whole case for review. This Court is
clothed with ample authority to review matters, even those not raised on appeal, if we find them
necessary in arriving at a just disposition of the case. Every circumstance in favor of the accused
shall be considered. This is in keeping with the constitutional mandate that every accused shall be
presumed innocent unless his guilt is proven beyond reasonable doubt. 14
1avvphi1
After a thorough review of the records of the case and for reasons that will be discussed below, we
find that appellant can no longer question the validity of his arrest, but the sachet of shabu seized
from him during the warrantless search is inadmissible in evidence against him.
The records show that appellant never objected to the irregularity of his arrest before his
arraignment. In fact, this is the first time that he raises the issue. Considering this lapse, coupled with
his active participation in the trial of the case, we must abide with jurisprudence which dictates that
appellant, having voluntarily submitted to the jurisdiction of the trial court, is deemed to have waived
his right to question the validity of his arrest, thus curing whatever defect may have attended his
arrest. The legality of the arrest affects only the jurisdiction of the court over his person. Appellants
warrantless arrest therefore cannot, in itself, be the basis of his acquittal. 15
As to the admissibility of the seized drug in evidence, it is necessary for us to ascertain whether or
not the search which yielded the alleged contraband was lawful.16
The 1987 Constitution states that a search and consequent seizure must be carried out with a
judicial warrant; otherwise, it becomes unreasonable and any evidence obtained therefrom shall be
inadmissible for any purpose in any proceeding.17 Said proscription, however, admits of exceptions,
namely:
1. Warrantless search incidental to a lawful arrest;
2. Search of evidence in "plain view;"
3. Search of a moving vehicle;
4. Consented warrantless search;
5. Customs search;
6. Stop and Frisk; and
7. Exigent and emergency circumstances.18
What constitutes a reasonable or unreasonable warrantless search or seizure is purely a judicial
question, determinable from the uniqueness of the circumstances involved, including the purpose of
the search or seizure, the presence or absence of probable cause, the manner in which the search
and seizure was made, the place or thing searched, and the character of the articles procured. 19
The RTC concluded that appellant was caught in flagrante delicto, declaring that he was caught in
the act of actually committing a crime or attempting to commit a crime in the presence of the
apprehending officers as he arrived in Baler, Aurora bringing with him a sachet of
shabu.20 Consequently, the warrantless search was considered valid as it was deemed an incident to
the lawful arrest.
Recent jurisprudence holds that in searches incident to a lawful arrest, the arrest must precede the
search; generally, the process cannot be reversed. Nevertheless, a search substantially
contemporaneous with an arrest can precede the arrest if the police have probable cause to make
the arrest at the outset of the search.21 Thus, given the factual milieu of the case, we have to
determine whether the police officers had probable cause to arrest appellant. Although probable
cause eludes exact and concrete definition, it ordinarily signifies a reasonable ground of suspicion
that the person accused is guilty of the offense with which he is charged. 22
The determination of the existence or absence of probable cause necessitates a reexamination of

the established facts. On May 19, 2003, a confidential agent of the police transacted through cellular
phone with appellant for the purchase of shabu. The agent reported the transaction to the police
authorities who immediately formed a team to apprehend the appellant. On May 20, 2003, at 11:00
a.m., appellant called up the agent with the information that he was on board a Genesis bus and
would arrive in Baler, Aurora anytime of the day wearing a red and white striped T-shirt. The team
members posted themselves along the national highway in Baler, Aurora, and at around 3:00 p.m. of
the same day, a Genesis bus arrived in Baler. When appellant alighted from the bus, the confidential
agent pointed to him as the person he transacted with, and when the latter was about to board a
tricycle, the team approached him and invited him to the police station as he was suspected of
carrying shabu. When he pulled out his hands from his pants pocket, a white envelope slipped
therefrom which, when opened, yielded a small sachet containing the suspected drug. 23 The team
then brought appellant to the police station for investigation and the confiscated specimen was
marked in the presence of appellant. The field test and laboratory examinations on the contents of
the confiscated sachet yielded positive results for methamphetamine hydrochloride.
Clearly, what prompted the police to apprehend appellant, even without a warrant, was the tip given
by the informant that appellant would arrive in Baler, Aurora carrying shabu. This circumstance gives
rise to another question: whether that information, by itself, is sufficient probable cause to effect a
valid warrantless arrest.
The long standing rule in this jurisdiction is that "reliable information" alone is not sufficient to justify a
warrantless arrest. The rule requires, in addition, that the accused perform some overt act that would
indicate that he has committed, is actually committing, or is attempting to commit an offense. 24 We
find no cogent reason to depart from this well-established doctrine.
The instant case is similar to People v. Aruta,25 People v. Tudtud,26 and People v. Nuevas.27
In People v. Aruta, a police officer was tipped off by his informant that a certain "Aling Rosa" would
be arriving from Baguio City the following day with a large volume of marijuana. Acting on said tip,
the police assembled a team and deployed themselves near the Philippine National Bank (PNB) in
Olongapo City. While thus positioned, a Victory Liner Bus stopped in front of the PNB building where
two females and a man got off. The informant then pointed to the team members the woman, "Aling
Rosa," who was then carrying a traveling bag. Thereafter, the team approached her and introduced
themselves. When asked about the contents of her bag, she handed it to the apprehending officers.
Upon inspection, the bag was found to contain dried marijuana leaves. 28
The facts in People v. Tudtud show that in July and August, 1999, the Toril Police Station, Davao
City, received a report from a civilian asset that the neighbors of a certain Noel Tudtud (Tudtud) were
complaining that the latter was responsible for the proliferation of marijuana in the area. Reacting to
the report, the Intelligence Section conducted surveillance. For five days, they gathered information
and learned that Tudtud was involved in illegal drugs. On August 1, 1999, the civilian asset informed
the police that Tudtud had headed to Cotabato and would be back later that day with a new stock of
marijuana. At around 4:00 p.m. that same day, a team of police officers posted themselves to await
Tudtuds arrival. At 8:00 p.m., two men disembarked from a bus and helped each other carry a
carton. The police officers approached the suspects and asked if they could see the contents of the
box which yielded marijuana leaves.29
In People v. Nuevas, the police officers received information that a certain male person, more or less
54" in height, 25 to 30 years old, with a tattoo mark on the upper right hand, and usually wearing a
sando and maong pants, would make a delivery of marijuana leaves. While conducting stationary
surveillance and monitoring of illegal drug trafficking, they saw the accused who fit the description,
carrying a plastic bag. The police accosted the accused and informed him that they were police
officers. Upon inspection of the plastic bag carried by the accused, the bag contained marijuana
dried leaves and bricks wrapped in a blue cloth. In his bid to escape charges, the accused disclosed
where two other male persons would make a delivery of marijuana leaves. Upon seeing the two
male persons, later identified as Reynaldo Din and Fernando Inocencio, the police approached
them, introduced themselves as police officers, then inspected the bag they were carrying. Upon
inspection, the contents of the bag turned out to be marijuana leaves. 30
In all of these cases, we refused to validate the warrantless search precisely because there was no
adequate probable cause. We required the showing of some overt act indicative of the criminal
design.
As in the above cases, appellant herein was not committing a crime in the presence of the police
officers. Neither did the arresting officers have personal knowledge of facts indicating that the person
to be arrested had committed, was committing, or about to commit an offense. At the time of the
arrest, appellant had just alighted from the Gemini bus and was waiting for a tricycle. Appellant was
not acting in any suspicious manner that would engender a reasonable ground for the police officers
to suspect and conclude that he was committing or intending to commit a crime. Were it not for the
information given by the informant, appellant would not have been apprehended and no search
would have been made, and consequently, the sachet of shabu would not have been confiscated.
We are not unaware of another set of jurisprudence that deems "reliable information" sufficient to
justify a search incident to a lawful warrantless arrest. As cited in People v. Tudtud, these include
People v.
Maspil, Jr.,31 People v. Bagista,32 People v. Balingan,33 People v. Lising,34 People v. Montilla,35 People
v. Valdez,36 and People v. Gonzales.37 In these cases, the Court sustained the validity of the
warrantless searches notwithstanding the absence of overt acts or suspicious circumstances that
would indicate that the accused had committed, was actually committing, or attempting to commit a
crime. But as aptly observed by the Court, except in Valdez and Gonzales, they were covered by the
other exceptions to the rule against warrantless searches. 38
Neither were the arresting officers impelled by any urgency that would allow them to do away with
the requisite warrant. As testified to by Police Officer 1 Aurelio Iniwan, a member of the arresting
team, their office received the "tipped information" on May 19, 2003. They likewise learned from the
informant not only the appellants physical description but also his name. Although it was not certain
that appellant would arrive on the same day (May 19), there was an assurance that he would be
there the following day (May 20). Clearly, the police had ample opportunity to apply for a warrant. 39
Obviously, this is an instance of seizure of the "fruit of the poisonous tree," hence, the confiscated
item is inadmissible in evidence consonant with Article III, Section 3(2) of the 1987 Constitution, "any
evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose
in any proceeding."
Without the confiscated shabu, appellants conviction cannot be sustained based on the remaining
evidence. Thus, an acquittal is warranted, despite the waiver of appellant of his right to question the
illegality of his arrest by entering a plea and his active participation in the trial of the case. As earlier
mentioned, the legality of an arrest affects only the jurisdiction of the court over the person of the
accused. 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.40
One final note. As clearly stated in People v. Nuevas,41
x x x In the final analysis, we in the administration of justice would have no right to expect ordinary
people to be law-abiding if we do not insist on the full protection of their rights. Some lawmen,
prosecutors and judges may still tend to gloss over an illegal search and seizure as long as the law
enforcers show the alleged evidence of the crime regardless of the methods by which they were
obtained. This kind of attitude condones law-breaking in the name of law enforcement. Ironically, it
only fosters the more rapid breakdown of our system of justice, and the eventual denigration of
society. While this Court appreciates and encourages the efforts of law enforcers to uphold the law
and to preserve the peace and security of society, we nevertheless admonish them to act with
deliberate care and within the parameters set by the Constitution and the law. Truly, the end never
justifies the means.42
WHEREFORE, premises considered, the Court of Appeals Decision dated May 22, 2008 in CA-G.R.
CR-H.C. No. 00425 is REVERSED and SET ASIDE. Appellant Jack Raquero Racho is ACQUITTED
for insufficiency of evidence.
The Director of the Bureau of Corrections is directed to cause the immediate release of appellant,
unless the latter is being lawfully held for another cause; and to inform the Court of the date of his
release, or the reasons for his confinement, within ten (10) days from notice.
No costs.
SO ORDERED.
G.R. No. 182534
ONGCOMA HADJI HOMAR, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
BRION, J.:
Before the Court is a petition for review on certiorari filed by Ongcoma Hadji Romar (petitioner)
seeking the reversal of the Decision of the Court of Appeals (CA) dated January 10, 2008, and its
Resolution dated April 11, 2008 in CA-G.R. CR No. 29364. These assailed CA rulings affirmed the
decision of the Regional Trial Court (RTC) of Parafiaque City, Branch 259 in Criminal Case No. 020986 which convicted the petitioner for violation of Republic Act (RA) No. 9165 entitled "An Act
Instituting the Comprehensive Dangerous Drugs Act of 2002."
1
The Factual Antecedents

The petitioner was charged for violation of Section 11, Article II of RA 9165. The Information states
that on or about August 20, 2002, the petitioner was found to possess one heat-sealed transparent
plastic sachet containing 0.03 grams of methylamphetamine hydrochloride, otherwise known as
shabu. The petitioner pleaded not guilty during arraignment.
2
PO1 Eric Tan (Tan) was the lone witness for the prosecution. As stated in the RTC decision, he
testified that on August 20, 2002, at around 8:50 in the evening, their Chief, P/Chief Supt. Alfredo C.
Valdez, ordered him and civilian agent (C/A) Ronald Tangcoy (Tangcoy) to go to the South Wing,
Roxas Boulevard. 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 petitioners body and
found and confiscated a plastic sachet containing what he suspected as shabu. Tangcoy and Tan
executed a sinumpaang salaysay on the incident.
4
The petitioner was the sole witness for the defense. He testified that on August 20, 2002, he was
going home at around 6:30 p.m. after selling imitation sunglasses and other accessories at the
BERMA Shopping Center.
5
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. He was criminally charged before the
Metropolitan Trial Court of Paraaque City, Branch 77 for the possession of the kitchen knife but he
was eventually acquitted.
6
The RTCs Ruling

The RTC convicted the petitioner. It ruled that PO1 Tan and C/A Tangcoy were presumed to have
performed their duties regularly in arresting and conducting a search on the petitioner. 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.
7
The RTC also did not believe the petitioners defense of denial and ruled that it is a common and
standard defense ploy in most prosecutions in dangerous drugs cases. This defense is weak
especially when it is not substantiated by clear and convincing evidence as in this case.
8
The petitioner filed an appeal with the CA.

The CAs ruling
The CA dismissed the petition and affirmed the RTCs findings.
According to the CA, Section 5, paragraph (a) of Rule 113 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. In the present case, the
petitioner committed jaywalking in the presence of PO1 Tan and C/A Tangcoy; hence, his
warrantless arrest for jaywalking was lawful.
9
Consequently, the subsequent frisking and search done on the petitioners body which produced the
knife and the shabu were incident to a lawful arrest allowed under Section 13, Rule 126 of the
Revised Rules of Criminal Procedure.
10
The CA likewise ruled that PO1 Tan clearly showed that the petitioner was caught in flagrante
delicto in possession of shabu.
11
12
The petitioner filed a motion for reconsideration which was denied by the CA. Hence, this appeal.
13
The Petitioners 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.
14
Second, assuming for the sake of argument that there was a valid arrest, Section 13, Rule 126 of the
Revised Rules of Criminal Procedure permits a search that is directed only upon dangerous
weapons or "anything which may have been used or constitute proof in the commission of an
offense without a warrant." In the present case, the offense, for which the petitioner was allegedly
caught in flagrante delicto, is jaywalking. The alleged confiscated drug has nothing to do with the
offense of jaywalking.
15
Finally, the non-presentation of Tangcoy, who allegedly recovered the shabu from the petitioner,
renders the prosecutions evidence weak and uncorroborated. Consequently, the sole testimony of
Tan cannot sustain the petitioners conviction beyond reasonable doubt.
The Respondents Position
In his Comment, the respondent argues that the guilt of the petitioner was conclusively established
beyond reasonable doubt. He reiterates that the warrantless frisking and search on the petitioners
body was an incident to a lawful warrantless arrest for jaywalking. The non-filing of a criminal
charge of jaywalking against the petitioner does not render his arrest invalid.
16
17
18
The respondent also assails the petitioners defense that the shabu is inadmissible as evidence.
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.
19
The Courts Ruling

We find the petition meritorious.
The prosecution failed to prove that a lawful warrantless arrest preceded the search conducted on
the petitioners 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.
20
To determine the admissibility of the seized drugs in evidence, it is indispensable to ascertain

whether or not the search which yielded the alleged contraband was lawful. There must be a valid
warrantless search and seizure pursuant to an equally valid warrantless arrest, which must precede
the search. For this purpose, the law requires that there be first a lawful arrest before a search can
be made the process cannot be reversed.
21
22
Section 5, Rule 113 of the Revised Rules of Criminal Procedure provides the only occasions when
a person may be lawfully arrested without a warrant. In the present case, the respondent alleged
that the petitioners warrantless arrest was due to his commission of jaywalking in flagrante delicto
and in the presence of Tan and Tangcoy.
23
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.
24
The prosecution has the burden to prove the legality of the warrantless arrest from which the corpus
delicti of the crime - shabu- was obtained. For, without a valid warrantless arrest, the alleged
confiscation of the shabu resulting from a warrantless search on the petitioners 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." Aside from this conclusion, the respondent failed to prove that the portion
of Roxas Boulevard where the petitioner crossed was indeed a "no jaywalking" area. 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 prosecutions
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.
25
It may not be amiss to point out also the contrary observation of the Court as regards the findings of
the RTC when it held, rather hastily, that in the process of accosting the petitioner for jaywalking,
Tangcoy recovered from his possession a knife and a small plastic sachet containing shabu. The
testimony of Tan, as quoted in the CA decision, and the findings of the RTC, cast doubt on whether
Tan and Tangcoy intended to arrest the petitioner for jaywalking.
26
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
persons 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.
27
The pertinent testimony of Tan, as quoted by the CA, is as follows:

28
Q: What happened after you obeyed the order of your immediate superior?
A: At 8:50 in the evening of August 20, 2002, 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?
A: We brought him to our precinct and informed him of his constitutional rights and brought him to
the Paraaque Community Hospital and the suspected shabu or methylamphetamine was brought to
the PNP Crime Lab at Fort Bonifacio.
Q: Did you come to know the name of that person whom you arrested in the morning of August 20,
2002?
A: Yes, sir.
Q: What is his name?
A: Ongcoma Hadji Omar, sir.
Q: Is he the same Ongcoma Hadji Omar y Para, the accused in this case?
A: Yes, sir."
[emphasis and underscoring supplied]
Clearly, no arrest preceded the search on the person of the petitioner. 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."
29
Tan and Tangcoy did not intend to bring the petitioner under custody or to restrain his liberty. 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 Tans 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. The Court held that the shabu
confiscated from the accused in that case was inadmissible as evidence when the police officer who
flagged him for traffic violation had no intent to arrest him. According to the Court, due to the lack of
intent to arrest, the subsequent search was unlawful.
30
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 respondents 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 recoveredimmediately 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.
1avvphi1
31
The waiver of an illegal warrantless arrest does not also mean a waiver of the inadmissibility of
evidence seized during an illegal warrantless arrest.
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.
1wphi1
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.
32
Since the shabu was seized during an illegal arrest, its inadmissibility as evidence precludes
conviction and justifies the acquittal of the petitioner.
WHEREFORE, we GRANT the petition and REVERSE and SET ASIDE the Decision of the Court of
Appeals dated January 10, 2008, and its Resolution dated April 11, 2008 in CA-G.R. CR No. 29364.
Petitioner ONGCOMA HADJI HOMAR is ACQUITTED and ordered immediately RELEASED from
detention, unless he is confined for any other lawful cause.
SO ORDERED.
G.R. No. 132159
January 18, 2001

vs.
CESAR GIVERA y GAROTE, accused-appellant.
MENDOZA, J.:
This is an appeal from the decision1 of the Regional Trial Court, Branch 102, Quezon City finding
accused-appellant Cesar Givera y Garote guilty of murder of Eusebio Gardon y Arrivas and
sentencing him to suffer the penalty of reclusion perpetua with the accessory penalties prescribed by
law, to indemnify the heirs of the deceased in the amount of P50,000.00 without subsidiary
imprisonment in case of insolvency, and to pay the costs of the suit.
1wphi1.nt
The information in this case, dated April 10, 1995, charged as follows:
That on or about the 2nd day of May, 1993, in Quezon City, Philippines, the said accused
[CESAR GIVERA], conspiring together, confederating with EPEFANIO GAYON y
GERALDE2 and ARTURO GAYON y GERALDE, and mutually helping one another who were
charged with the same offense at the Regional Trial Court of Quezon City, Branch 104, and
docketed as Criminal Case No. Q-93-44315, did, then and there, willfully, unlawfully and
feloniously, with intent to kill, taking advantage of superior strength, with evident
premeditation and treachery, attack, assault, and employ personal violence upon the person
of EUSEBIO GARDON y ARRIVAS, by then and there stabbing him with a knife hitting him
on the different parts of his body, and striking him with a piece of stone on the head, thereby
inflicting upon him serious and mortal wounds which were the direct and immediate cause of
his untimely death, to the damage and prejudice of the heirs of EUSEBIO GARDON y
ARRIVAS.
CONTRARY TO LAW.3
Accused-appellant pleaded not guilty during his arraignment on April 10, 1996, whereupon he was
tried.
Accused-appellant's companions, namely Epifanio Gayon, Arturo Gayon, and Maximo Givera, were
separately prosecuted and found guilty of murder by the Regional Trial Court, Branch 104, Quezon
City in a decision, dated June 6, 1994, in Crim. Case No. Q-93-44315. The three were sentenced to
suffer the penalty of reclusion perpetua with the accessory penalties prescribed by law, to indemnify
the heirs of the deceased the sum of P100,000.00 without subsidiary imprisonment in case of
insolvency and to pay the costs of the suit. On appeal to this Court, the decision of the trial court was
affirmed with modification. The dispositive portion of the decision reads:
WHEREFORE, the judgment appealed from is MODIFIED. We instead find accusedappellants EPIFANIO GAYON, ARTURO GAYON and MAXIMO GIVERA guilty beyond
reasonable doubt of MURDER committed with grave abuse of superior strength and imposes
upon each of them the penalty of reclusion perpetuawith the accessory penalties provided by
law, and ordering them to indemnify the heirs of the deceased Eusebio Gardon in the
amount of P100,000.00. Costs against accused-appellants.4
For the prosecution, the victim's daughter Milagros Gardon and his niece Melinda Delfin were
presented as witnesses. On the other hand, only accused-appellant testified in his defense.
The incident took place at about 4 p.m. on May 2, 1993 at Purok IV, Area 5, Laura St., Old Balara, in
Diliman, Quezon City.
Milagros Gardon testified on direct examination:5
Q:
Particularly about 4:00 p.m., were you at your residence at that time?
A:
Yes, sir.
Q:
And what were you doing there at that time?
A:
I was in the house because I was watching my father, sir.
Q:
What was your father doing at that time?
A:
I let him go to sleep because he was a little bit drunk, and I was watching him so that
he will not go outside.
Q:
Why do you say you were watching him so that he would not anymore go out?
A:
Because he was warned by [accused-appellant Cesar Givera] that if he goes outside,
he will kill my father.
Q:
At that time and place while you were watching your father, what else happened if
any?
....
A:
[O)ur house was being stoned.
Q:
Who was stoning your house? Could you tell us who was throwing stones to your
house?
....
COURT:
She mentioned that because her father was not coming out of the house, the accused
started stoning the house.
Q:
Who was stoning your house?
A:
Cesar Givera, sir.
Q:
Was he alone at that time?
A:
They were in a group, sir, but he was the only one stoning the house. And the other
one, who was already arrested, by the name of Onying went inside the house.
Q:
You said a while ago that there was somebody with Cesar who went to your house,
could you recall that somebody?
A:
Onying [Epifanio Gayon], sir.
Q:
You said he was already "nakakulong"?
A:
Yes, sir.
Q:
Now, what happened after this person Cesar and the other one Onying went inside
the house?
A:
Onying asked my father to go out of the house while Cesar was stoning the house.
Onying led my father out of the house, and when they were already outside, Cesar was
waiting for them. Then Cesar scampered away and my father followed him. Cesar caused
my father to run after him until they reached the place where there was another person, and
that person stabbed my father.
Q:
So how many persons in all have you seen?
A:
They were four in all, sir.

....
Q:
What did these 4 persons do when her father was with them if any?
....
A:
Cesar was stoning the house. Then Onying got my father from the house. Turing
[Arturo Gayon] told the other one to stab my father while the one who stabbed my father was
waiting under the bridge.
....
Q:
What happened to your father after you said he was stabbed or mauled?
A:
After he was stabbed, the person who stabbed him ran away, sir.
On cross-examination, Milagros Gardon said:6

Q:
Who else were with you at that time?
A:
My brother and sister, sir.
Q:
They were Laura Gardon and Leonardo Gardon, correct?
A:
Yes, sir.
Q:
And your father inside the house because he was already resting after having been
from a drinking spree, correct?
A:
Yes, sir.
....
Q:
And you were watching TV at that time, correct?
A:
Yes, sir.
Q:
And then suddenly you heard stones being thrown on the roof of your house, is that
correct?
A:
Yes, sir.
....
Q:
This Onying [Epifanio Gayon] suddenly entered your house, correct?
A:
Yes, sir.
Q:
He was alone when he entered your house, correct?
A:
Yes, sir.
Q:
How did he effect his entrance in your house?
A:
He went inside directly, sir.

....
Q:
At that time were you in a position so as to see him actually effect his entrance
through the front door?
A:
Yes, sir.
Q:
Why? Where were you at that time?
A:
I was in the sala, sir.
Q:
You were in the sala right next to your father, is that correct?
A:
Yes, sir.
Q:
And likewise with your two other companions Laura and Leonardo, they were situated
right near to your father, correct?
A:
Yes, sir.
....
Q:
Now, when this Onying entered the house, did he call out the name of your father if
you can remember?
A:
Yes, sir.
Q:
And your father, did he give any response thereto?
A:
Yes, sir.
Q:
What was his response if any?
A:
He asked Onying if he need anything. And Onying asked him to go out with him.
....
Q:
And your father stood up and joined Onying in going out of the house?
A:
Yes, sir.
....
Q:
Then you together with your two other companions got back to watching the television
show is that correct?
A:
No, sir.
Q:
But you stayed inside the house, you and your two other companions?
A:
No, sir.
Q:
Now, thereafter you heard stones thrown again towards your house, is that correct?
A:
Yes, sir.
Q:
But just the same, you did not peep out through any opening of your house for safety?
A:
We were already outside when they were stoning the house. We followed him outside.
....
Q:
Was Onying also hit by any of those stones?
A:
No, sir. Only my father and my sister.

....
Q:
What is the name of that sister of yours who was also hit?
A:
Laura Gardon, sir.
Q:
And where was Laura hit?
A:
At her left shoulder, sir.
Q:
And how many stones if you know hit Laura?
A:
Only one, sir, because while they were stoning they were running away.
Q:
Who were these people running away?
A:
Onying and Cesar, sir.
Q:
Are you saying that Onying also stoned your father?
A:
No, sir.
Q:
Because he was right next by your father at that time, that is why he was not at all
stoning your father, correct?
A:
He was boxing him.

....
Q:
You saw Cesar Givera actually stoning towards the direction of your father, is that
what you mean?
A:
Yes, sir.
....
Q:
And your father followed Cesar Givera, is that what you mean?
A:
Yes, sir.
Q:
Likewise, with Onying, he followed Cesar Givera?
A:
Yes, sir.
Q:
And they ran quite a distance, correct?
A:
Yes, sir.
Q:
And then you lost sight of them yes or no?
A:
No, sir.
Q:
But you stayed in the house, correct?
A:
No, sir. I was outside the house. When the incident happened, I was already outside
the house.
Q:
But because you did not state that you also followed your father as he ran after Cesar,
does that mean that you just stayed in front of your house?
A:
We stopped because we already saw the place where my father was stabbed, that is
why we did not follow them.
Q:
How far did they get, using as reference the front door of your house? How far did
they get as they ran away?
A:
About fifteen meters away, sir.
Q:
Did they not turn corners?
A:
It is straight, sir. They only made a turn after the stabbing incident, sir.
Q:
They turned a corner after your father was stabbed?
A:
Yes, sir, because they ran away, sir.
Q:
Only one of the accused stabbed your father, correct?
A:
Yes, sir.
Q:
And who was this?
A:
Bingo Givera [Maximo Givera], sir.
Q:
Did you actually see him stab your father?
A:
Yes, sir.
On re-direct examination, Milagros said:7

Q:
Madam witness, you said a while ago that you saw while your father was stabbed,
and the name of that person is Onying who stabbed your father?
A:
Maximo Givera, sir.

....
Q:
Now, when you saw Maximo Givera stab your father, where was Cesar at that time?
....
A:
He was also at the same place, sir.
Q:
And the other 3 accused Arturo Gayon and Efipanio Gayon, could you tell us where
they were when Maximo was stabbing your father?
A:
They were also at that place, sir.
Melinda Delfin, niece of the victim, corroborated the testimony of Milagros Gardon. She said: 8
Q:
At about 4:00 p.m. of May 4, 1993, could you tell us where you were at that time?
A:
Yes, sir, I was about to reach the house of Eusebio Gardon.
Q:
What was your purpose in going there?
A:
Eusebio Gardon called me up because he has just come from Bicol and he will give
me rice.
Q:
You said you were about to arrive at the residence of Eusebio Gardon at 4:00 p.m. on
May 4, 1993, what did you notice or observe when you were about to arrived at that place of
his residence?
A:
I saw "Onying" [Epifanio Gayon] with his hand on the shoulder of Eusebio Gardon
going out of their yard.
(Nakita ko si Onying akbay akbay si Eusebio Gardon palabas sa bakuran nila.)
....
Q:
What else did you notice?
A:
When I came out of the gate I saw Cesar Givera boxed Eusebio Gardon.
(Paglabas ko ng bakuran nakita ko si Cesar na sinalubong ng suntok si Eusebio

Gardon.)
....
Q:
What else did you see aside from the fact that you saw Cesar Givera boxing Eusebio
Gardon?
A:
Cesar boxed him and also Onying boxed him, they both helped each other in boxing
Eusebio Gardon, and then they back to the house of Eusebio Gardon and my uncle followed
them. Not quite far, Bingo [Maximo Givera] and Turing [Arturo Gayon] were there.
....
Q:
And what happened when you said this Bingo was there?
A:
Onying and Cesar gave fistic blows to Eusebio Gardon and he was also stabbed by
Bingo, and they were also kicking Eusebio Gardon.
Q:
Eusebio Gardon was boxed by Onying and Cesar Givera?
A:
Yes, sir.
Q:
And stabbed by?
A:
Bingo, sir.
Q:
Actually, how many persons were there when [Eusebio] Gardon was stabbed and
being boxed?
A:
I saw four of them, sir.
Q:
Would you made these four (4)?
A:
Turing, Bingo, Cesar and Onying.

....
Q:
And what happened to Eusebio Gardon, whom you said was boxed, mauled and then
stabbed?
A:
He was lying down under the bridge for about thirty (30) minutes, and then his children
arrived.
....
Q:
You said earlier that you saw Cesar Givera and Epifanio Givera threw stones towards
the victim's house, is that true?
PROSECUTOR CONCHA:
Excuse me, Your Honor, the witness said she saw that fellow by the name of Onying
and Cesar boxing --?
WITNESS:
"Suntok, bato at sipa."
ATTY. MASCALAS:
Q:
Where did you see them doing these acts on Eusebio?
A:
Outside the premises, sir.
Q:
Whose premises?
A:
The premises of Eusebio Gardon, sir.
Q:
Did you not say earlier that Onying came out with Eusebio Gardon from the latter's
house?
A:
I saw Onying, "akbay-akbay niya.."
Q:
You even saw Onying embracing Eusebio Gardon, correct?
A:
Yes, sir.
....
Q:
Were there stones being hurled to Onying and Eusebio?
A:
Yes, sir.
Q:
Did you see who were throwing those stones?
A:
It was Cesar, sir.

....
Q:
Did you see if Gardon was hit by any of these stones?
A:
Yes, sir.
Q:
And you also saw Onying hit by stones, correct?
A:
No, sir.
....
Q:
Who boxed your uncle?
A:
Cesar, sir.
Q:
Are you saying that Cesar while throwing stones to your uncle was so close to him
that he was able to box him?
A:
Because they were advancing towards my uncle and Onying. They were going
towards them.
....
Q:
And when they were able to come near, how near did Cesar get to your uncle?
A:
Maybe three to four meters, sir.
Q:
That was when Cesar boxed your uncle?
A:
Not yet, sir.
Q:
When did Cesar box your uncle?
A:
When they come near to my uncle.

....
Q:
And then Cesar Givera ran away and your uncle gave chase?
A:
Yes, sir.
Q:
And upon reaching the bridge which is about fifteen (15), meters away from the
victim's house, you saw Bingo stabbed your uncle?
A:
Yes, sir.
Q:
There were only You said that there were only four (4) persons in that place where
your uncle was stabbed and those persons do not include Milagros Gardon?
A:
No, sir.
Q:
Because Milagros Gardon was still in their house?
A:
She was already outside their house.
Q:
She was outside their house -- although outside their house she was still inside the
premises of their lot?
A:
She was still inside, but she saw the incident.
Q:
And that premises of the victim was about 15 meters away from the bridge where the
alleged incident took place?
A:
Yes, sir.
Q:
Were you also with Milagros Gardon at the time that stabbing was done?
A:
We were not together but I was approaching their house.

....
Q:
So you were also about 15 meters away from the bridge where the alleged incident
took place?
A:
Yes, sir.
Q:
And that is your distance when you were claiming that you saw this incident?
A:
It was just a little less.

(Makalampas lang ng konti).
....
Q:
It was Turing Gayon [Arturo Gayon] whom you heard shout: "Sige, todasin na yan!"
A:
Yes, sir.
Q:
And it was Bingo [Maximo Givera] whom you saw stabbed your uncle?
A:
Yes, sir.
....
Q:
You said that it was Bingo who stabbed the victim Eusebio Gardon. You said that you
saw it?
A:
Yes, sir.
Q:
What was Cesar Givera doing when the victim was stabbed by Bingo?
A:
They were kicking and boxing my uncle.
Q:
Givera was doing that? I was asking you about Cesar Givera?
A:
He was boxing and kicking my uncle.
Q:
Who, Eusebio Gardon, the victim?
A:
Yes, sir.
To prove the fact and cause of death of Eusebio Gardon, the prosecution presented in evidence the
testimony9 of medico-legal officer, P/Maj. Florante Baltazar, given in Criminal Case No. Q-93-44315.
The testimony shows that the victim sustained one fatal stab wound possibly caused by a single
bladed weapon.10 In addition, he sustained abrasions in his lower chin, possibly hitting a rough
surface, as well as an incised wound caused by a bladed weapon, on his posterior middle left
arm.11 The stab wound appears to be fatal because it pierced the pericardium and left ventricle of the
heart, which could be the immediate effect of hemorrhage, shock and eventual death of the
victim.12 A death certificate13 evidencing the death of the victim was presented by the prosecution.
Accused-appellant testified in his behalf. He was a resident of Laura St., Old Balara, Quezon City at
the time of the incident. He denied any involvement in the killing of the victim who was his relative by
affinity.14
Accused-appellant claimed that at the time of the incident on May 2, 1993, at around 4:00 p.m., he
was having a drink in his cousin's house, some 30 meters away from the victim's house. On the
other hand, Maximo Givera and Arturo Gayon were in the victim's house also having drinks.
Accused-appellant said he was fetched by his cousin, Recto Gardon, because Maximo and the
victim Eusebio Gardon were having an altercation. He went to pacify the protagonists and then led
the victim to his house. Without his knowledge, however, Eusebio went back and again engaged
Maximo in a fist fight, as a result of which the victim Eusebio was knocked down. Accused-appellant
said he was going to help the victim get up, but he saw the victim's son, Ronilo Gardon, coming with
a bolo. He, therefore, ran away and left the victim behind. He added, that he did not see if his three
companions did anything more than box the victim.15 Accused-appellant said he learned that the
victim had died only two days after the incident.16
Accused-appellant was arrested on May 4, 1996 at the East Avenue Medical Center. He stated that
the children of the victim implicated him in the killing of Eusebio Gardon only because he was
present when the incident happened.17
On August 29, 1997, the trial court rendered its decision finding accused-appellant guilty of murder.
The dispositive portion of its decision reads:18
WHEREFORE, judgment is hereby rendered finding the accused Cesar Givera guilty beyond
reasonable doubt of the crime of murder as charged.
The accused is hereby sentenced to reclusion perpetua, with the accessory penalties of the
law, and to indemnify the heirs of the deceased in the amount of P50,000.00 without
subsidiary imprisonment in case of insolvency, and to pay the costs.
SO ORDERED.
Hence, this appeal. Accused-appellant's sole assignment of error is thatDUE TO THE PRESENCE OF REASONABLE DOUBT, THE COURT A QUO HAS
COMMITTED AN ERROR IN CONVICTING THE ACCUSED-APPELLANT OF THE CRIME
CHARGED
The appeal has no merit.
First. The prosecution presented evidence which shows beyond reasonable doubt that accusedappellant and his companions (Epifanio Gayon, Arturo Gayon, and Maximo Givera), all of whom
were convicted of murder in another case, were responsible for the killing of Eusebio Gardon on May
2, 1993. Milagros Gardon's testimony, an excerpt from which is quoted at the beginning of this
opinion, is spontaneous, detailed, arid consistent. The defense tried to discredit it through cross
examination, but, as shown earlier, the defense only succeeded in enabling her to give further details
of her testimony in chief. There are apparent lapses in the testimony of Milagros, as when she
testified that she knew at the very beginning, that it was accused-appellant who was stoning their
house when in fact, as she admitted, she only knew this because the victim said so. Moreover, it
may be doubted whether the victim's other daughter, Laura, was hit by the stones hurled by
accused-appellant as she came out of their house, since the door of the house was so narrow that
only one person at a time could pass through it. Nonetheless, a close reading of the records will
show that indeed it was accused-appellant who was stoning the house because when the witness
followed the victim outside, she saw accused-appellant throwing stones at their house. She then saw
accused-appellant hitting the victim with stones. In the process, Laura was also hit.
In any event, these discrepancies are minor and insignificant and do not detract from the substance
of her testimony. This Court has time and again said that a few discrepancies and inconsistencies in
the testimonies of witnesses referring to minor details and not in actuality touching upon the central
fact of the crime do not impair the credibility of the witnesses. Instead of weakening their
testimonies, such inconsistencies tend to strengthen their credibility because they discount the
possibility of their being rehearsed testimony.19
Thus, according to Milagros Gardon, accused-appellant taunted the victim and challenged him to
come out of the house. After succeeding in drawing the victim out of his house, accused-appellant
and his companions ganged up on him, kicking and pummelling him and finally stabbing him.
Milagros' testimony belies accused-appellant's claim that he was merely trying to pacify the victim
and Maximo Givera and that he ran away because the victim's son, armed with a bolo, charged at
him (accused-appellant). There was no reason for the victim's son to want to attack accusedappellant, if the latter was merely trying to help the victim.
Nor is it probable that accused-appellant did not see what his companions did to the victim aside
from giving him fist blows and kicks, because according to accused-appellant, he ran away shortly
after they had attacked the victim. As accused-appellant said he saw the assailants run way, this
could only be after they had been done with their victim.
The defense also tries to discredit the testimony of the other prosecution witness, Melinda Delfin. It
is contended that, contrary to her claim, she was not really present at the incident. For this purpose,
it is pointed out that she failed to give a sworn statement regarding said incident to the police.
The contention has no merit. As Melinda explained, she did not give a statement to the police
because she was told they would call on her later for her statement. Melinda testified: 20
Q:
The police did not get your statement because you did not tell them that you were an
eyewitness and if it is true, correct?
A:
No, sir.
Q:
You were only asked by your relatives - -You testified in this case in the sala of Judge
Asuncion after the children of the victim asked you to? Correct?
A:
They did not tell me. I voluntarily testified, sir, because I saw the incident.
Q:
What do you mean by saying that you voluntarily testified? Did you just come to court
and asked the court to take you as witness in this case?
A:
No, sir, because in the police station the police told me that they will not take my
statement. They will just "ihahabol na lang ako."
Q:
Did you not inquire from them why your statement will not longer be taken and what
do you mean by that "ihahabol na lang ikaw"?
A:
I did not ask because I do not know anything about that. That was the first time that
incident happened to my life.
It is noteworthy that both Milagros Gardon and Melinda Delfin knew accused-appellant and the other
assailants, and that in fact some of them are related to the witnesses. Accused-appellant has not
shown that these witnesses were motivated by ill will against him. As correctly observed by the trial
court:21
[T]he court has no reason to doubt the testimonies of the prosecution witnesses.
In the first place, accused Cesar Givera has not shown any motive on the part of the
prosecution witnesses to testify as they did against said accused.
Second, accused Cesar Givera and the other accused in this case are all residing within the
vicinity where the crime was committed, and are even related by affinity to the deceased.
There is, therefore, no reason to doubt their identification by the prosecution witnesses."
All things considered, we think the trial court correctly dismissed accused-appellant's claim and gave
credence to the testimonies of the prosecution witnesses. From the fact that the victim died and that
accused-appellant and his companions were the last persons seen with the victim before he died, it
can be concluded that they are responsible for the victim's death.
Second. The allegations of conspiracy in the information have been established. The victim was at
home sleeping after coming from a drinking session, when the accused-appellant and his
companions stoned his house to force him to come out. When they failed, one of them, Epifanio
(Onying) Gayon, went inside the victim's house and told him to come out. Disoriented because he
was drunk, the victim went with Onying. Once the victim was outside, accused-appellant pelted him
with stones, while Onying started raining fistic blows on him. Then Onying and accused-appellant
ran away to lure him to go toward the bridge where the other two, Arturo Gayon and Maximo Givera,
were waiting. When the victim reached the place, he was attacked by the gang. He was kicked and
boxed by Onying and when Arturo shouted "Sige todasin na yan!," Maximo stabbed the victim.
The evidence thus clearly and convincingly shows a coordinated action by the group in the execution
of the crime. In conspiracy, it is not necessary to show that all the conspirators actually hit and killed
the victim. What is important is that all participants performed specific acts with such closeness and
coordination as to unmistakably indicate a common purpose or design to bring about the death of
the victim. The act of each conspirator in furtherance of the common purpose is in contemplation of
law the act of all. Consonant with this legal principle, accused-appellant is guilty of the crime of
murder as if he himself dealt the deathblow that sent the victim to his grave. 22
Third. However, evident premeditation cannot be appreciated in this case. Where conspiracy is
directly established, with proof of the attendant deliberation and selection of the method, time and
means of executing the crime, the existence of evident premeditation can be appreciated. 23 But in an
implied conspiracy, such as in this case, evident premeditation cannot be appreciated in the absence
of proof as to how and when the plan to kill the victim was hatched or what time elapsed before it
was carried out, so that it cannot be determined if the accused had "sufficient time between its
inception and its fulfillment dispassionately to consider and accept the consequences." There should
be a showing that the accused had the opportunity for reflection and persisted in effectuating his
criminal design which the prosecution failed to establish in the case at bar.24
Nor can the qualifying circumstance of treachery be taken into account. The trial court held: 25
...[T]reachery will also be deduced from the evidence on record. The deceased was unarmed
when he was stabbed by on Maximo Givera and boxed and kicked by accused Cesar Givera
and two other accused.
. . . From the evidence adduced, accused Givera and Epifanio Gayon taunted and provoked
the deceased by throwing stones at him and then lured him to run after them towards the
bridge where the other accused were lying in wait ready to pounce on the deceased without
risk to themselves as the deceased was then defenseless."
Treachery is the deliberate and unexpected attack on the victim, without any warning and without
giving him an opportunity to defend himself or repel the initial assault. For treachery to be
appreciated, it must be shown to be present at the inception of the attack, otherwise, even if present
at a subsequent stage, it cannot be considered.26 In the instant case, the victim cannot be said to
have been totally oblivious of the impending attack by all the group of accused-appellant. He thus
had every opportunity to escape from the attack. In fact, his daughter Milagros testified that prior to
the stoning incident, the victim had been threatened with harm by accused-appellant the moment he
went out of his house, which is why she stayed beside her father to make sure he did not go out of
the house. Indeed, the victim had been forewarned of the danger posed by accused-appellant and
his group.
Moreover, by coming out of his house and running after two of the assailants, the victim showed that
he was prepared for the attack by accused-appellant and his gang and could have been hardly
surprised when he was actually attacked. Treachery must be proven by convincing evidence. The
fact that the victim may have been surprised because he had not expected that he would be
outnumbered when he saw two other attackers waiting for him under the bridge is not sufficient to
show that the victim was completely unaware of the attack that might come from his assailants. 27
However, the presence of the qualifying circumstance of abuse of superiority was correctly
appreciated in this case. The victim was unarmed and was clearly outnumbered by the four
assailants, with one of them armed with a knife.28
Fourth. Accused-appellant claims that his arrest at the East Avenue Medical Center on May 4, 1996
was made without a warrant. This is not true. He was arrested by virtue of a warrant issued by the
court on April 27, 1995. However, as the records show, the warrant of arrest was returned unserved
by the arresting officer on June 7, 1995 as accused-appellant could not be found. He was finally
found only on May 4, 1996. Now, no alias warrant of arrest is needed to make the arrest. Unless
specifically provided in the warrant, the same remains enforceable until it is executed, recalled or
quashed. The ten-day period provided in Rule 113, 4 is only a directive to the officer executing the
warrant to make a return to the court.29
At any rate, accused-appellant must be deemed to have waived his right to object thereto because
he failed to move for the quashal of the information before the trial court, entered a plea of not guilty
and participated in the trial.30 As this Court has held, any objection involving a warrant of arrest or
procedure in the acquisition by the court of jurisdiction over the person of an accused must be made
before he enters his plea, otherwise the objection is deemed waived. 31
On the matter of the admissibility of the testimony of the medico-legal taken in the first case,
involving the three other accused for the death of the same victim, offered in evidence in the case at
bar, this Court must declare the same inadmissible. As correctly contended by the defense, because
they did not have the opportunity to cross-examine Dr. Baltazar, his testimony cannot be used in
evidence against accused-appellant. Indeed, where the opposing party failed to cross-examine a
witness, this Court in several cases held:32
Oral testimony may be taken into account only when it is complete, that is, if the witness has
been wholly cross-examined by the adverse party or the right to cross-examine is lost wholly
or in part thru the fault of such adverse party. But when cross-examination is not and cannot
be done or completed due to causes attributable to the party offering the witness, the
uncompleted testimony is thereby rendered incompetent.
Still and all the fact and cause of death of the victim had been sufficiently proved by the accounts of
the two eyewitnesses, corroborated by the offer in evidence of the death certificate of the victim.
Fifth. The award of damages by the trial court, in favor of the victim should be modified. Aside from
the award of P50,000.00 as indemnity, the heirs of Eusebio Gardon are entitled to an award of
P50,000.00 as moral damages irrespective of proof thereof. 33
WHEREFORE, the decision of the Regional Trial Court, Branch 102, Quezon City finding accusedappellant Cesar Givera y Garote, guilty of murder of Eusebio Gardon y Arrivas and sentencing him
to suffer the penalty ofreclusion perpetua with the accessory penalties prescribed by law is
AFFIRMED with the MODIFICATION that, in addition to the amount of P50,000.00 to be paid as
indemnity, accused-appellant is hereby ordered to pay to the heirs of Eusebio Gardon amount of
P50,000.00 as moral damages, plus the costs of the suit.
1wphi1.nt
SO ORDERED.
G.R. No. 81567 October 3, 1991

IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF ROBERTO UMIL, ROLANDO
DURAL and RENATO VILLANUEVA, MANOLITA O. UMIL and NICANOR P. DURAL, FELICITAS
V. SESE, petitioners,
vs.
FIDEL V. RAMOS, MAJ. GEN. RENATO DE VILLA, BRIG. GEN. RAMON MONTANO, BRIG. GEN.
ALEXANDER AGUIRRE, respondents.
G.R. Nos. 84581-82 October 3, 1991
AMELIA ROQUE and WILFREDO BUENAOBRA, petitioners,

vs.
GEN. RENATO DE VILLA and GEN, RAMON MONTANO, respondents.
G.R. Nos. 84583-84 October 3, 1991
IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF ATTY. DOMINGO T.
ANONUEVO and RAMON CASIPLE: DOMINGO T. ANONUEVO and RAMON
CASIPLE, petitioners,
vs.
HON. FIDEL V. RAMOS, GEN. RENATO S. DE VILLA, COL. EVARISTO CARIO, LT. COL. REX
D. PIAD, T/SGT. CONRADO DE TORRES, S/SGT. ARNOLD DURIAN, and Commanding Officer,
PC-INP Detention Center, Camp Crame, Quezon City, respondents.
G.R. No. 83162 October 3, 1991
IN THE MATTER OF THE APPLICATION FOR HABEAS CORPUS OF VICKY A. OCAYA AND
DANNY RIVERA: VIRGILIO A. OCAYA, petitioners,
vs.
BRIG. GEN. ALEXANDER AGUIRRE, COL. HERCULES CATALUNA, COL. NESTOR
MARIANO, respondents.
G.R. No. 85727 October 3, 1991
IN THE MATTER OF APPLICATION FOR HABEAS CORPUS OF DEOGRACIAS
ESPIRITU, petitioner,
vs.
BRIG. GEN.ALFREDO S. LIM, COL. RICARDO REYES, respondents.
G.R. No. 86332 October 3, 1991
IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF NARCISO B. NAZARENO:
ALFREDO NAZARENO,petitioner,
vs.
THE STATION COMMANDER OF THE MUNTINGLUPA POLICE STATION, Muntinglupa, Metro
Manila, P/SGT. JACINTO MEDINA, P/SGT. ELADIO TAGLE, P/SGT. LEVI SOLEDAD, and P/SGT.
MALTRO AROJADO,respondents.
Efren H. Mercado for petitioners in G.R. No. 81567 and G. R. No. 83162.
Ricardo C. Valmonte for petitioners in G.R. Nos. 84581-82
Josefina G. Campbell-Castillo for petitioners in G.R. Nos. 84583-84.
Potenciano A. Flores, Jr. for petitioner in G.R. No. 85727.
The Solicitor General for the respondents.
RESOLUTION
PER CURIAM:p
Before the Court are separate motions filed by the petitioners in the above-entitled petitions, seeking
reconsideration of the Court's decision promulgated on 9 July 1990 (the decision, for brevity) which
dismissed the petitions, with the following dispositive part:
WHEREFORE, the petitions are hereby DISMISSED, except that in G.R. No.
85727 (Espiritu vs. Lim), the bail bond for petitioner's provisional liberty is hereby
ordered reduced from P60,000.00 to P10,000.00. No costs.
The Court avails of this opportunity to clarify its ruling a begins with the statement that the decision
did not rule as many misunderstood it to do that mere suspicion that one is Communist Party
or New People's Army member is a valid ground for his arrest without warrant. Moreover, the
decision merely applied long existing lawsto the factual situations obtaining in the several petitions.
Among these laws are th outlawing the Communist Party of the Philippines (CPP) similar
organizations and penalizing membership therein be dealt with shortly). It is elementary, in this
connection, if these laws no longer reflect the thinking or sentiment of the people, it is Congress as
the elected representative of the people not the Court that should repeal, change or modify
them.
In their separate motions for reconsideration, petitioners, in sum, maintain:
1. That the assailed decision, in upholding the validity of the questioned arrests made
without warrant, and in relying on the provisions of the Rules of Court, particularly
Section 5 of Rule 113 (Arrest), disregards the fact that such arrests violated the
constitutional rights of the persons arrested;
2. That the doctrine laid down in Garcia vs. Enrile 1 and Ilagan vs. Enrile 2 should be abandoned;
3. That the decision erred in considering the admissions made by the persons
arrested as to their membership in the Communist Party of the Philippines/New
People's Army, and their ownership of the unlicensed firearms, ammunitions and
subversive documents found in their possession at the time of arrest, inasmuch as
those confessions do not comply with the requirements on admissibility of
extrajudicial admissions;
4. That the assailed decision is based on a misappreciation of facts;
5. That G.R. No. 81567 (the Umil case) should not be deemed moot and academic.
We find no merit in the motions for reconsideration.
It can not be overlooked that these are petitions for the issuance of the writ of habeas corpus, filed
by petitioners under the Rules of Court. 3 The writ of habeas corpus exists as a speedy and effective remedy to relieve
persons from unlawful restraint. 4Therefore, the function of the special proceedings of habeas corpus is to inquire into the legality of one's
detention, 5 so that if detention is illegal, the detainee may be ordered forthwit released.
In the petitions at bar, to ascertain whether the detention petitioners was illegal or not, the Court
before rendering decision dated 9 July 1990, looked into whether their questioned arrests without
warrant were made in accordance with law. For, if the arrests were made in accordance with law,
would follow that the detention resulting from such arrests also in accordance with law.
There can be no dispute that, as a general rule, no peace officer or person has the power or
authority to arrest anyo without a warrant of arrest, except in those cases express authorized by
law. 6 The law expressly allowing arrests witho warrant is found in Section 5, Rule 113 of the Rules of Court which states the grounds upon
which a valid arrest, without warrant, can be conducted.
In the present cases, the focus is understandably on Section 5, paragraphs (a) and (b) of the said
Rule 113, which read:
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 he arrested has committed, is actually
committing, or is attempting to commit an offense;
(b) When an offense has in fact just been committed, and he has personal
knowledge of facts indicating that the person to be arrest has committed it; and
. . . (Emphasis supplied).
The Court's decision of 9 July 1990 rules that the arrest Rolando Dural (G.R. No. 81567) without
warrant is justified it can be said that, within the contemplation of Section 5 Rule 113, he (Dural) was
committing an offense, when arrested because Dural was arrested for being a member of the New
People's Army, an outlawed organization, where membership penalized, 7 and for subversion which, like
rebellion is, under the doctrine of Garcia vs. Enrile, 8 a continuing offense, thus:
The crimes of insurrection or rebellion, subversion, conspiracy or proposal to commit

such crimes, and other crimes and offenses committed in the furtherance (sic) on the
occasion thereof, or incident thereto, or in connection therewith under Presidential
Proclamation No. 2045, are all in the nature of continuing offenses which set them
apart from the common offenses, aside from their essentially involving a massive
conspiracy of nationwide magnitude. . . .
Given the ideological content of membership in the CPP/NPA which includes armed struggle for the
overthrow of organized government, Dural did not cease to be, or became less of a subversive, FOR
PURPOSES OF ARREST, simply because he was, at the time of arrest, confined in the St. Agnes
Hospital. Dural was identified as one of several persons who the day before his arrest, without
warrant, at the St. Agnes Hospital, had shot two (2) CAPCOM policemen in their patrol car. That
Dural had shot the two (2) policemen in Caloocan City as part of his mission as a "sparrow" (NPA
member) did not end there and then. Dural, given another opportunity, would have shot or would
shoot other policemen anywhere as agents or representatives of organized government. It is in this
sense that subversion like rebellion (or insurrection) is perceived here as a continuing offense.
Unlike other so-called "common" offenses, i.e. adultery, murder, arson, etc., which generally end
upon their commission, subversion and rebellion are anchored on an ideological base which
compels the repetition of the same acts of lawlessness and violence until the overriding objective of
overthrowing organized government is attained.
Nor can it be said that Dural's arrest was grounded on mere suspicion by the arresting officers of his
membership in the CPP/NPA. His arrest was based on "probable cause," as supported by actual
facts that will be shown hereafter.
Viewed from another but related perspective, it may also be said, under the facts of the Umil case,
that the arrest of Dural falls under Section 5, paragraph (b), Rule 113 of the Rules of Court, which
requires two (2) conditions for a valid arrestt without warrant: first, that the person to be arrested has
just committed an offense, and second, that the arresting peace officer or private person has
personal knowledge of facts indicating that the person to be arrested is the one who committed the
offense. Section 5(b), Rule 113, it will be noted, refers to arrests without warrant, based on "personal
knowledge of facts" acquired by the arresting officer or private person.
It has been ruled that "personal knowledge of facts," in arrests without warrant must be based
upon probable cause, which means an actual belief or reasonable grounds of suspicion 9
The grounds of suspicion are reasonable when, in the absence of actual belief of the arresting
officers, the suspicion that the person to be arrested is probably guilty of committing the offense, is
based on actual facts, i.e., supported by circumstances sufficiently strong in themselves to create the
probable cause of guilt of the person to be arrested. 10 A reasonable suspicion therefore must be founded on probable
cause, coupled with good faith on the part of the peace officers making the arrest. 11
These requisites were complied with in the Umil case and in the other cases at bar.
In G.R. No. 81567 (Umil case), military agents, on 1 February 1988, were dispatched to the St.
Agnes Hospital, Roosevelt Avenue, Quezon City, to verify a confidential information which was
received by their office, about a "sparrow man" (NPA member) who had been admitted to the said
hospital with a gunshot wound; that the information further disclosed that the wounded man in the
said hospital was among the five (5) male "sparrows" who murdered two (2) Capcom mobile patrols
the day before, or on 31 January 1988 at about 12:00 o'clock noon, before a road hump along
Macanining St., Bagong Barrio, Caloocan City; that based on the same information, the wounded
man's name was listed by the hospital management as "Ronnie Javellon," twenty-two (22) years old
of Block 10, Lot 4, South City Homes, Bian, Laguna. 12
Said confidential information received by the arresting officers, to the effect that an NPA member
("sparrow unit") was being treated for a gunshot wound in the named hospital, is deemed reasonable
and with cause as it was based on actual facts and supported by circumstances sufficient to
engender a belief that an NPA member was truly in the said hospital. The actual facts supported by
circumstances are: first the day before, or on 31 January 1988, two (2) CAPCOM soldiers were
actually killed in Bagong Bario, Caloocan City by five (5) "sparrows" including Dural; second a
wounded person listed in the hospital records as "Ronnie Javellon" was actually then being treated
in St. Agnes Hospital for a gunshot wound; third as the records of this case disclosed later,
"Ronnie Javellon" and his address entered in the hospital records were fictitious and the wounded
man was in reality Rolando Dural.
In fine, the confidential information received by the arresting officers merited their immediate
attention and action and, in fact, it was found to be true. Even the petitioners in their motion for
reconsideration, 13 believe that the confidential information of the arresting officers to the effect that Dural was then being treated in
St. Agnes Hospital was actually received from the attending doctor and hospital management in compliance with the directives of the
law, 14 and, therefore, came from reliable sources.
As to the condition that "probable cause" must also be coupled with acts done in good faith by the
officers who make the arrest, the Court notes that the peace officers wno arrested Dural are deemed
to have conducted the same in good faith, considering that law enforcers are presumed to regularly
perform their official duties. The records show that the arresting officers did not appear to have been
ill-motivated in arresting Dural. 15 It is therefore clear that the arrest, without warrant, of Dural was made in compliance with the
requirements of paragraphs (a) and (b) of Section 5, Rule 113.
Parenthetically, it should be mentioned here that a few day after Dural's arrest, without warrant, an
information charging double murder with assault against agents of persons in authority was filed
against Dural in the Regional Trial Court of Caloocan City (Criminal Case No. C-30112). He was thus
promptly placed under judicial custody (as distinguished fro custody of the arresting officers). On 31
August 1988, he wa convicted of the crime charged and sentenced to reclusion perpetua. The
judgment of conviction is now on appeal before this Court in G.R. No. 84921.
As to Amelia Roque and Wilfredo Buenaobra (G.R. Nos. 84581-82), Domingo
Anonuevo and Ramon Casiple(G.R. Nos. 84583-84) and Vicky Ocaya (G.R. No. 83162), their
arrests, without warrant, are also justified. They were searched pursuant to search warrants issued
by a court of law and were found wit unlicensed firearms, explosives and/or ammunition in their
persons. They were, therefore, caught in flagrante delicto which justified their outright arrests without
warrant, under Sec 5(a), Rule 113, Rules of Court. Parenthetically, it should be mentioned here that
a few davs after their arrests without warrant, informations were filed in court against said
petitioners, thereby placing them within judicial custody and disposition. Furthermore, Buenaobra
mooted his own petition fo habeas corpus by announcing to this Court during the hearing of these
petitions that he had chosen to remain in detention in the custody of the authorities.
More specifically, the antecedent facts in the "in flagrante" cases are:
1. On 27 June 1988, the military agents received information imparted by a former
NPA about the operations of the CPP and NPA in Metro Manila and that a certain
house occupied by one Renato Constantine, located in the Villaluz Compound,
Molave St., Marikina Heights, Marikina, Metro Manila was being used as their
safehouse; that in view of this information, the said house was placed under military
surveillance and on 12 August 1988, pursuant to a search warrant duly issued by
court, a search of the house was conducted; that when Renato Constantine was then
confronted he could not produce any permit to possess the firearms, ammunitions,
radio and other communications equipment, and he admitted that he was a ranking
member of the CPP. 16
2. In the case of Wilfredo Buenaobra, he arrived at the house of Renato Constantino in the evening of 12 August 1988,
and admitted that he was an NPA courier and he had with him letters to Renato Constantine and other members of the
rebel group.
3. On the other hand, the arrest of Amelia Roque was a consequence of the arrest of
Buenaobra who had in his possession papers leading to the whereabouts of
Roque; 17 that, at the time of her arrest, the military agents found subversive documents and live ammunitions, and
she admitted then that the documents belonged to her. 18
4. As regards Domingo Anonuevo and Ramon Casiple they were arrested without warrant on 13 August 1988, when
they arrived at the said house of Renato Constantine in the evening of said date; that when the agents frisked them,
subversive documents, and loaded guns were found in the latter's possession but failing to show a permit to possess
them. 19
5. With regard to Vicky Ocaya, she was arrested, without warrant when she arrived (on 12 May 1988) at the premises
ofthe house of one Benito Tiamzon who was believed to be the head of the CPP/NPA, and whose house was subject
of a search warrant duly issued by the court. At the time of her arrest without warrant the agents of the PC-Intelligence
and Investigation found ammunitions and subversive documents in the car of Ocaya. 20
It is to be noted in the above cases (Roque, Buenaobra, Anonuevo, Casiple and Ocaya) that the
reason which compelled the military agents to make the arrests without warrant was the information
given to the military authorities that two (2) safehouses (one occupied by Renato Constantine and
the other by Benito Tiamzon) were being used by the CPP/NPA for their operations, with information
as to their exact location and the names of Renato Constantine and Benito Tiamzon as residents or
occupants thereof.
And at the time of the actual arrests, the following circumstances surrounded said arrests (of Roque,
Buenaobra, Anonuevo and Casiple), which confirmed the belief of the military agents that the
information they had received was true and the persons to be arrested were probably guilty of the
commission of certain crimes: first: search warrant was duly issued to effect the search of the
Constantine safehouse; second: found in the safehouse was a person named Renato Constantine,
who admitted that he was a ranking member of the CPP, and found in his possession were
unlicensed firearms and communications equipment; third: at the time of their arrests, in their
possession were unlicensed firearms, ammunitions and/or subversive documents, and they admitted
ownership thereof as well as their membership in the CPP/NPA. And then, shortly after their arrests,
they were positively identified by their former comrades in the organization as CPP/NPA members. In
view of these circumstances, the corresponding informations were filed in court against said arrested
persons. The records also show that, as in the case of Dural, the arrests without warrant made by
the military agents in the Constantino safehouse and later in the Amelia Roque house, do not appear
to have been ill-motivated or irregularly performed.
With all these facts and circumstances existing before, during and after the arrest of the aforenamed persons (Dural, Buenaobra, Roque, Anonuevo, Casiple and Ocaya), no prudent an can say
that it would have been better for the military agents not to have acted at all and made any arrest.
That would have been an unpardonable neglect of official duty and a cause for disciplinary action
against the peace officers involved.
For, one of the duties of law enforcers is to arrest lawbreakers in order to place them in the hands of
executive and judicial authorities upon whom devolves the duty to investigate the acts constituting
the alleged violation of law and to prosecute and secure the punishment therefor. 21 An arrest is therefore in
the nature of an administrative measure. The power to arrest without warrant is without limitation as long as the requirements of Section 5,
Rule 113 are met. This rule is founded on an overwhelming public interest in peace and order in our communities.
In ascertaining whether the arrest without warrant is conducted in accordance with the conditions set
forth in Section 5, Rule 113, this Court determines not whether the persons arrested are indeed
guilty of committing the crime for which they were arrested. 22 Not evidence of guilt, but "probable cause" is the
reason that can validly compel the peace officers, in the performance of their duties and in the interest of public order, to conduct an arrest
without warrant. 23
The courts should not expect of law-enforcers more than what the law requires of them. Under the
conditions set forth in Section 5, Rule 113, particularly paragraph (b) thereof, even if the arrested
persons are later found to be innocent and acquitted, the arresting officers are not liable. 24 But if they do
not strictly comply with the said conditions, the arresting officers can be held liable for the crime of arbitrary detention, 25 for damages under
Article 32 of the Civil Code 26 and/or for other administrative sanctions.
In G.R. No. 85727, Espiritu, on 23 November 1988, was arrested without warrant, on the basis of the
attestation of certain witnesses: that about 5:00 o'clock in the afternoon of 22 November 1988, at the
corner of Magsaysay Boulevard and Velencia St., Sta. Mesa, Manila, Espiritu spoke at a gathering of
drivers and sympathizers, where he said, among other things:
Bukas tuloy ang welga natin . . . hanggang sa magkagulona. 27 (Emphasis supplied)
and that the police authorities were present during the press conference held at the National Press
Club (NPC) on 22 November 1988 where Espiritu called for a nationwide strike (of jeepney and bus
drivers) on 23 November 1988. 28 Espiritu was arrested without warrant, not for subversion or any "continuing offense," but for
uttering the above-quoted language which, in the perception of the arresting officers, was inciting to sedition.
Many persons may differ as to the validity of such perception and regard the language as falling
within free speech guaranteed by the Constitution. But, then, Espiritu had not lost the right to insist,
during the pre-trial or trial on the merits, that he was just exercising his right to free speech
regardless of the charged atmosphere in which it was uttered. But, the authority of the peace officers
to make the arrest, without warrant, at the time the words were uttered, or soon thereafter, is still
another thing. In the balancing of authority and freedom, which obviously becomes difficult at times,
the Court has, in this case, tilted the scale in favor of authority but only for purposes of the arrest (not
conviction). Let it be noted that the Court has ordered the bail for Espiritu's release to be reduced
from P60,000.00 to P10,000.00.
Let it also be noted that supervening events have made the Espiritu case moot and academic. For
Espiritu had before arraignment asked the court a quo for re-investigation, the peace officers did not
appear. Because of this development, the defense asked the court a quo at the resumption of the
hearings to dismiss the case. Case against Espiritu (Criminal Case No. 88-68385) has been
provisionally dismissed and his bail bond cancelled.
In G.R. No. 86332 (Nazareno), the records show that in the morning of 14 December 1988, Romulo
Bunye II was killed by a group of men in Alabang, Muntinlupa, Metro Manila; that at about 5:00
o'clock in the morning of 28 December 1988, Ramil Regala, one of the suspects in the said killing,
was arrested and he pointed to Narciso Nazareno as one of his companions during the killing of
Bunye II; that at 7:20 of the same morning (28 December 1988), the police agents arrested
Nazareno, without warrant, for investigation. 29
Although the killing of Bunye II occurred on 14 December 1988, while Nazareno's arrest without
warrant was made only on 28 December 1988, or 14 days later, the arrest fans under Section 5(b) of
Rule 113, since it was only on 28 December 1988 that the police authorities came to know that
Nazareno was probably one of those guilty in the killing of Bunye II and the arrest had to be made
promptly, even without warrant, (after the police were alerted) and despite the lapse of fourteen (14)
days to prevent possible flight.
As shown in the decision under consideration, this Court, in upholding the arrest without warrant of
Nazareno noted several facts and events surrounding his arrest and detention, as follows:
. . . on 3 January 1989 (or six (6) days after his arrest without warrant), an
information charging Narciso Nazareno, Ramil Regala and two (2) others, with the
killing of Romulo Bunye II was filed wit the Regional Trial Court of Makati, Metro
Manila. The case is dock eted therein as Criminal Case No. 731.
On 7 January 1989, Narciso Nazareno filed a motion to post bail but the motion was
denied by the trial court in an order dated 10 January 1989, even as the motion to
post bail, earlier filed by his co-accused, Manuel Laureaga, was granted by the same
trial court.
On 13 January 1989, a petition for habeas corpus was filed with this Court on behalf
of Narciso Nazareno and on 13 January 1989, the Court issued the writ of habeas
corpus, retumable to the Presiding Judge of the Regional Trial Court of Bifian,
Laguna, Branch 24, ordering said court to hear the case on 30 January 1989 and
thereafter resolve the petition.
At the conclusion of the hearing, or on 1 February 1989, the Presiding Judge of the
Regional Trial Court of Bian, Laguna issued a resolution denying the petition
for habeas corpus, it appearing that the said Narciso Nazareno is in the custody of
the respondents by reason of an information filed against him with the Regional Trial
Court of Makati, Metro Manila which liad taken cognizance of said case and had, in
fact, denied the motion for bail filed by said Narciso Nazareno (presumably because
of the strength of the evidence against him).
This Court reiterates that shortly after the arrests of Espiritu and Nazareno, the corresponding
informations against them were filed in court. The arrests of Espiritu and Nazareno were based on
probable cause and supported by factual circumstances. They complied with conditions set forth in
Section 5(b) of Rule 113. They were not arbitrary or whimsical arrests.
Parenthetically, it should be here stated that Nazareno has since been convicted by the court a
quo for murder and sentenced to reclusion perpetua. He has appealed the judgment of conviction to
the Court of Appeals where it is pending as of this date ( CA-G.R. No. still undocketed).
Petitioners contend that the decision of 9 July 1990 ignored the contitution requisiteds for
admissibility of an extrajudicial admission.
In the case of Buenaobra (G.R. Nos. 84581-82), he admitted 30 that he was an NPA courier. On the other hand, in
the case ofAmelia Roque, she admitted 31 that the unlicensed firearms, ammunition and subversive documents found in her possession
during her arrest, belonged to her.
The Court, it is true, took into account the admissions of the arrested persons of their membership in
the CPP/NPA, as well as their ownership of the unlicensed firearms, ammunitions and documents in
their possession. But again, these admissions, as revealed by the records, strengthen the Court's
perception that truly the grounds upon which the arresting officers based their arrests without
warrant, are supported by probable cause, i.e. that the persons arrested were probably guilty of the
commission of certain offenses, in compliance with Section 5, Rule 113 of the Rules of Court. To
note these admissions, on the other hand, is not to rule that the persons arrested are already guilty
of the offenses upon which their warrantless arrests were predicated. The task of determining the
guilt or innocence of persons arrested without warrant is not proper in a petition for habeas corpus. It
pertains to the trial of the case on the merits.
As to the argument that the doctrines in Garcia vs. Enrile, and Ilagan vs. Enrile should be
abandoned, this Court finds no compelling reason at this time to disturb the same, particularly ln the
light of prevailing conditions where national security and liability are still directly challenged perhaps
with greater vigor from the communist rebels. What is important is that everv arrest without warrant
be tested as to its legality via habeas corpus proceeding. This Court. will promptly look into and all
other appropriate courts are enjoined to do the same the legality of the arrest without warrant so
that if the conditions under Sec. 5 of Rule 113, Rules of Court, as elucidated in this Resolution, are
not met, then the detainee shall forthwith be ordered released; but if such conditions are met, then
the detainee shall not be made to languish in his detention but must be promptly tried to the end that
he may be either acquitted or convicted, with the least delay, as warranted by the evidence.
A Final Word
This Resolution ends as it began, reiterating that mere suspicion of being a Communist Party
member or a subversive is absolutely not a ground for the arrest without warrant of the suspect. The
Court predicated the validity of the questioned arrests without warrant in these petitions, not on mere
unsubstantiated suspicion, but on compliance with the conditions set forth in Section 5, Rule 113,
Rules of Court, a long existing law, and which, for stress, are probable cause and good faith of the
arresting peace officers, and, further, on the basis of, as the records show, the actual facts and
circumstances supporting the arrests. More than the allure of popularity or palatability to some
groups, what is important is that the Court be right.
ACCORDINGLY, the motions for reconsideration of the decision dated 9 July 1990, are DENIED.
This denial is FINAL.
SO ORDERED.
Narvasa, Melencio-Herrera, Paras, Padilla, Bidin, Grio-Aquino, Medialdea and Davide, Jr., JJ.,
concur.
Separate Opinions
FERNAN, C.J., concurring and dissenting:

After a deep and thorough reexamination of the decision of Julv 9, 1990 and an exhaustive
evaluation of the motions for reconsideration of the said decision, I am inclined to agree with the,
majority's resolution on said motions for reconsideration except for the legality of the warrantless
arrests of petitioner Deogracias Espiritu for the crime of inciting to sedition and petitioner Alfredo
Nazareno for the crime of murder.
In the words of the resolution, Espiritu "was arrested without warrant, not for subversion or any
'continuing offense,' but for uttering" the following: "Bukas tuloy ang welga natin . . . hanggang sa
magkagulo na." Apparently, such statement was, in the perception of the arresting officers, inciting to
sedition. While not conceding the validity of such perception, realizing that it is indeed possible that
Espiritu was merely exercising his right to free speech, the resolution nonetheless supports the
authority of peace officers "only for purposes of the arrest."
I find this position to be adverse to the very essence of the resolution which sanctions warrantless
arrests provided they are made in accordance with law. In the first place, Espiritu mav not be
considered as having "just committed" the crime charged. He allegedly first uttered seditious
remarks at the National Press Club in the afternoon of November 12, 1988. The second allegedly
seditious remark aforequoted was made at around 5:00 o'clock in the same afternoon (Decision, pp.
23-24). Under these circumstances, the law enforcement agents had time, short though it might
seem, to secure a warrant for his arrest. Espiritu's apprehension may not therefore be considered as
covered by Section 5(b) of Rule 113 which allows warrantless arrests "when an offense has in fact
just been committed."
The same observation applies with greater force in the case of Nazareno who was arrested 14 days
after the commission of the crime imputed to him.
Secondly, warrantless arrests may not be allowed if the arresting officer are not sure what particular
provision of law had beeri violated by the person arrested. True it is that law en.orcement agents and
even prosecutors are not all adept at the However, errneous perception, not to mention ineptitude
among their ranks, especially if it would result in the violation of any right of a person, may not be
tolerated. That the arrested person has the "right to insist during the pre-trial or trial on the merits"
(Resolution., p. 18) that he was exercising a right which the arresting officer considered as contrary
to law, is beside the point. No person should be subjected to the ordeal of a trial just because the law
enforcers wrongly perceived his action.
Thirdly, inciting to sedition is not a continuous crime for which the offender may be arrested without a
warrant duly issued by the proper authority. By its nature, a single act of urging others to commit any
of the acts enumerated in Article 142 of the Revised Penal Code may suffice to hold anyone liable
for inciting to sedition. While the crime is aimed at anarchy and radicalism and presents largely a
question of policy (Espuelas vs. People, 90 Phil, 524 [1951]), it should be remembered that any of
the prohibited acts in Article 142 may infringe upon the fundamental freedoms of speech and
expression. There arises, therefore, the necessity of balancing interests; those of the State as
against those of its individual citizen. Here lies the urgency of judicial intervention before an arrest is
made. Added to this is the subjectivity of the determination of what may incite other people to
sedition. Hence, while the police should act swiftly when a seditious statement has been uttered in
view of the jeopardy it may cause the government, speedy action should consist not in warrantless
arrests but in securing warrants for such arrests.
On the legality of warrantless arrests of violators of the Anti-Subversion Law, it should be
underscored that anyone who undertakes such arrest must see to it that the alleged violator
is knowing member of a subversive organization as distinguished from a nominal one (People vs.
Ferrer, L-32613-14, December 27, 1972, 48 SCRA 382). Thus, a subversive may be arrested even if
has not committed overt act of overthrowing the government such as bombing of government offices
trie assassination of government officials provided there is probable cause to believe that he is in the
roll of members of a subversive organization. It devolves upon the accused to prove membership by
force or ciorcion. Certainly, one may not be in such a roll without undergoing the concious act of
enlistment.
It bears repeating theat warrantless arrests are governed by law and subject to stringent application.
Section 5, Rule 113 of the Rules on Criminal Procedure now requires that an offense "has in
fact just been committed. "connotes immediacy in point of time and excludes cases under the old
rule where an offense 'has in fact been committed' no how long ago. Similarly, the arrestor must
have 'personal knowledge of the facts indicating that the [arrestee] has committed it' (instead of just
'reasonable ground believe that the [arrestee] has committed it' under the old rule)." (Dissenting
opinion in Ilagan vs. Enrile, G.R. No. 70748, October 21, 1985, 139 SCRA 349, 408).
I deem it aptherein to recall other Court rulings provide guidelines in effecting arrests without
warrants. In People vs. Burgos (G.R. No. 68955, September 4, 1986,144 SCRA 1), the Court
considered as illegal the warrantless arrest of a subversive not based on the arresting officer's
personal knowledge such subversion and held that any rule on arrests witho warrants must be
strictly construed. We categorically state therein that warrantless arrests should "clearly fall within
the situations when securing a warrant be absurd or is manifestly unnecessary was provided by the
Rules" (144 SCRA at 14). Moreover. "it is not enough that there is reasonable ground to believe that
the person to be arrested has committed a crime. A crime must in fact or actually (has just) been
committed first. That crime has actually been committed is an essential precondition. It is not enough
to suspect that a crime may have been committed. The fact of the commission of the offense must
be undisputed. The test of reasonable ground applies only to the identity of the perpetrator. (Supra,
at p. 15).
Earlier, in Morales, Jr. vs. Enrile (G.R. No. 61016, April 26, 1983, 121 SCRA 538), the Court laid out
the procedure to be observed the moment a person is arrested:
At the time a person is arrested, it shall be the duty of the arresting officer to imform
him of the reason for the arrest and he must be shown the warrant of arrest, if any.
He shall be informed of his constitutional rights to remain silent and to counsel, and
that any statement he might make could be used against him. The person shall have
the right to communicate with his lawyer, a relative, or anyone he chooses by the
most expedient means by telephone if possible or by letter or messenger. It
shall be the responsibility of the arresting officer to see to it that this is accomplished.
No custodial investigation shall be conducted unless it be in the presence of counsel
engaged by the person arressted, by any person on his behalf, or appointed by the
court upon petition on his behalf, or appointed the court upon the petition either of the
detainee himself or by anyone on his behalf. The right to counsel may be waived but
the waiver shall not be valid unless made with the assistance of counsel. Any
statement obtained in violation of the procedure herein laid down, whether
exculpatory or inculpatory, in whole or in part shall be inadmissible evidence. (121
SCRA at 554).
These judicial pronouncements must be observed by everyone concerned: the military and civilian
components of the government tasked with law enforcement as well as the ordinary citizen who
faces a situation wherein civic duty demands his intervention to preserve peace in the community.
I am not unmindful of the fact that abuses occur in arrests especially of offenders of crimes with a
political or ideological element. Such abuses are more often than not, triggered by the difficulty in
finding evidence that could stand judicial scrutiny to pinpoint a subversive, police officers usually
have to make long persistent surveillance. However, for the orderly administration of government
and the maintenance of peace and order in the country, good faith should be reposed on the officials
implementing the law. After all, we are not wanting in laws to hold any offending peace officer liable
both administratively and criminally for abuses in the performance of their duties. Victims of abuses
should resort to legal remedies to redress their grievances.
If existing laws are inadequate, the policy-determining branches of the government may be exhorted
peacefully by the citizenry to effect positive changes. This Court, mandated b the Constitution to
uphold the law, can only go as far as inter pruting existing laws and the spirit behind them.
Otherwise, we hail be entering the dangerous ground of judicial legislation.
GUTIERREZ, JR., J., concurring and dissenting:
The philosophy adopted in our Constitution is that liberty is an essential condition for order, It is
disturbing whenever the Court leans in the direction of order instead of liberty in har cases coming
before us.
People all over the world are fast accepting the theory that only as a society encourages freedom
and permits dissent can it have lasting security and real progress, the theory that enhancing order
through constraints on freedom is deceptive because restrictions on liberty corrode the very values
Govenment pretends to promote. I believe we should move with the people of the world who are fast
liberating themselves.
I, therefore, vote for the strict application of Section 5 (a) and (b) of Rule 113 on arrests without
warrant, to wit:
(a) When, in his presence, the person to be arrested has committed, is actually
knowledge of facts indicating that the person to be arrested has committed it.
xxx xxx xxx
Only in the cases found in the Rule should we allow arrests without warrants. In case of doubt, the
tendency should be to declare the warrantless arrest illegal.
Insofar as G.R. Nos, 84581-82, G.R. Nos. 84583-84 and G.R. No. 83162 involving Amelia Roque,
Wilfredo Buenaobra, Domingo Anonuevo, Ramon Casiple, and Vicky Ocaya are concerned, the
petitioners were arrested after having been apprehended while in possession of illegal firearms and
ammunitions. They were actually committing a crime when arrested. I concur in the denial of their
motions for reconsideration.
I vote to grant the motion for reconsideration in G.R. No. 85727 where Deogracias Espiritu was
arrested while urging jeepnev and bus drivers to join a strike of transport workers on the ground that
that was inciting to sedition.
This impresses me as Court validation of a clear infringement of an individual's freedom of speech.
"Inciting to sedition" is a term over which the most learned writers and jurists will differ when applied
to actual cases. I doubt if there are more than a handful of policemen in the whole country who
would know the full dimensions of the fine distinctions which separate the nation's interest in the
liberty to fully anfd freely discuss matters of national importance on one hand and the application of
the clear and present danger rule as the test when claims of national security and public safety are
asserted, on the other. In fact, the percentage of knowledgeability would go down further if we
consider that "inciting to sedition" requires the ability to define, among other (1) what kinds of
speeches or writings fall lander the term "inciting" (2) the meaning of rising publicly and tumultously;
(3,) when does a certain effort amount to force, intimidation. or illegal method; (4) what constitute
the five objects or ends of sedition; and (5) what is a scurrilous libel against the Philippines. If we
allow public speakers to be picked up simply because what they say is irritating or obnoxious to the
ears of a peace officer or critical of government policy and action, we will undermine all
pronouncements of this Court on the need to protect that matrix of all freedoms, which is freedom of
expression. At the very least, a warrant of arrest after a preliminary examination by a Judge is
essential in this type of offense.
Insofar as G.R. No. 81567 is concemed, I join the other dissenting Justices in their observations
regarding "continuing oftenses." To base warrantless arrests on the doctrine of continuing offense is
to give a license for the illegal detention of persons on pure suspicion. Rebellion, insurrection, or
sedition are political offenses where the line between overt acts and simple advocacy or adherence
to a belief is extremely thin. If a court has convicted an accused of rebellion and he is found roaming
around, he may be arrested. But until a person is proved guilty, I fail to see how anybody can jump to
a personal conclusion that the suspect is indeed a rebel and must be picked up on sight whenever
seen. The grant of authority in the majority opinion is too broad. If warrantless searches are to be
validated, it should be Congress and not this Court which should draw strict and narrow standards.
Otherwise, the non-rebels who are critical, noisy, or obnoxious will be indiscriminately lumped up
with those actually taking up arms against the Government.
The belief of law enforcement authorities, no matter how well grounded on past events, that the
petitioner would probably shoot other policemen whom he may meet does not validate warrantless
arrests. I cannot understand why the authorities preferred to bide their time, await the petitioner's
surfacing from underground, and pounce on him with no legal authority instead of securing warrants
of arrest for his apprehension. The subsequent conviction of a person arrested illegally does not the
warrantless arrest.
In G.R. No. 86332, Romulo Bunye was killed on December 14, 1988. The information that Narciso
Nazareno was one of the killers came to the attention of peace officers only on December 28, 1988
or fourteen (14) days later. To say that the offense "has in fact just been committed" even if 14 days
have lapsed is to stretch Rule 11 3 on warrantless arrests into ridiculous limits. A warrant of arrest is
essential in this case. I vote to grant the motion for reconsideration.
The subsequent conviction of a person arrested illegally does not reach back into the past and
render legal what was illegal. The violation of the constitutional right against illegal seizures is not
cured by the fact that the arrested person is indeed guilty of the offense for which he was seized. A
government of laws must abide by its own Constitution.
CONSIDERING THE FOREGOING, I VOTE TO:
(1) DENY the motions for reconsideration in G.R. Nos. 84581-82; G.R. No. 84583-84; and G.R. No.
83162;
(2) GRANT the motion for reconsideration in G.R. No. 85727;
(3) GRANT the motion for reconsideration in G.R. No. 86332;and
(4) GRANT the motion for reconsideration in G.R. No. 81567.
CRUZ, J., Separate Opinion:
I reiterate my concurrence with the ponencia insofar as it dismissed the petitions of those who were
arrested inflagrante, or subsequently posted bail or chose to remain in the custody of the military, or
voluntarily permitted the search of the house without warrant. I do not think that under the applicable
circumstances the petitioners can validly complain that they are being unlawfully detained.
But I must again express may dissent to the continued observance of Garcia-Padilla vs. Enrile, 121
SCRA 472, to justify the warrantless arrest and detention of the other petitioners on the ground that
they were apprehended for the continuing offenses of rebellion and other allied crimes.
We find in the said decision this partltularly disturbing observation, which was quoted with approval
in the originalponencia:
The arrest of persons involved in the rebellion, whether as its fighting armed
elements, or for committing non-violent acts but in furtherance of the rebellion, is
more an act of capturing them in the course of an armed conflict, to quell the
rebellion, than for the purpose of immediately prosecuting them in court for a
statutory offense. The arrest, therefore, need not follow the usual procedure in the
prosecution of offenses which requires the determination by a judge of the existence
of probable cause before the issuance of arrest and the granting of bail of the offense
is bailable. Obviously, the absence of a judicial warrant is no legal impediment to
arresting or capturing persons committing overt acts of violence against govenment
forces, or any other milder acts but equally in pursuance of the rebellious movement.
(Emphasis supplied.)
The treatment suggested envisions an actual state of war and is justified only when a recognition of
beuigerency is accorded by the legitimate government to the rebels, resulting in the application of
the laws of war in the regulation of their relations. The rebels are then considered alien enemies-to
be treated as prisoners of war when captured-and cannot invoke the municipal law of the legitimate
government they have disowned. It is in such a situation that the processes of the local courts are
not observed and the rebels cannot demand the protection of the Bill of Rights that they are deemed
to have renounced by their defiance of the government.
But as long as that recognition has not yet been extended, the legitimate govenment must treat the
rebels as its citizens, subject to its municipal law and entitled to all the rights provided thereunder,
including and especially those guaranteed by the Constitution. Principal among these in our
country are whose embodied in the Bill of Rights, particularly those guaranteeing due process,
prohibiting unreasonable searches and seizures, allowing bail, and presuming the innocence of the
accused. The legitimate government cannot excuse the suppression of these rights by the
"exigencies" of an armed conflict that at this time remains an intemal matter governed exclusively by
the laws of the Republic of the Philippines.
Treatment of the rebels as if they were foreign invaders or combatants is not justified in the
present situation as our government continues to prosecute them as violators of our own laws.
Under the doctrine announced in Garcia-Padilla, however, all persons suspected as rebels are by
such suspicion alone made subject to summary arrest no different from the unceremonious capture
of an enemy soldier in the course of a battle. The decision itself says that the arrest "need not follow
the usual procedure in the prosecution of offenses" and "the absence of a judicial warrant is no
impediment" as long as the person arrested is suspected by the authorities of the "continuing
offense" of subversion or rebellion or other related crimes. International law is thus substituted for
municipal law in regulating the relations of the Republic with its own citizens in a purely domestic
matter.
As for the duration of the offenses, the decision contained the following pronouncement which this
Court has also adopted as its own:
. . . The crimes of insurrection or rebellion, subversion, conspiracy or proposal to
commit such crimes, and other crimes and offenses committed in the furtherance on
the occasion thereof, or incident thereto, or in connection therewith under
Presidential Proclamation No. 2045, are all in the nature of continuing offenses which
set them apart from the common offenses, aside front their essentially involving a
massive conspiracy of nationwide manitude. (Emphasis supplied.)
The beginning of the "continuing offense" may be arbitrarily fixed by the authorities, usually by simply
placing the suspect "under surveillance," to lay the basis for his eventual apprehension. Once so
placed, he may at any time be arrested without warrant on the specious pretext that he is in the
process of committing the "continuing offense," no matter that what he may be actuallly doing at the
time is a perfectly innocent act.
In the case of Dural. the arrest was made while he was engaged in the passive and innocuous act of
undergoing medical treatment. The fiction was indulged that he was even then, as he lay supine in
his sickbed, engaged in the continuing offense of rebellion against the State. In further justification,
the Court says that the arresting officers acted on "confidential information" that he was in the
hospital, which information "was found to be true." This is supposed to have validated the
determination of the officers that there was "probable cause" that excused the absence of a warrant.
My own impression is that probable cause must be established precisely to justify the issuance of a
warrant, not to dispense with it; moreover, probable cause must be determined by the judge issuing
the warrant, not the arresting officer who says it is not necessary.
In the case of Espiritu, the arrest was made while he was actually sleeping, and for allegedly
seditious remarks made by him the day before. The Court says his case is not covered by the
Garcia-Padilla doctrine but approves the arrest just the same because the remarks were supposed
to continue their effects even to the following day. The offense was considered as having
been just committed (to make it come under Rule 113, Section 5, of the Rules of Court) despite the
considerable time lapse.
It was worse in the case of Nazareno, who was also arrested without warrant, and no less
than fourteen days after the killing. In sustaining this act, the Court says that it was only on the day
of his arrest that he was identified as one of the probable killers, thus suggesting that the validity of a
warrantless arrest is reckoned not from the time of the commission of an offense but from the time of
the Identification of the suspect.
Section 5 of Rule 113 says that a peace officer may arrest a person without a warrant if the latter
"has committed, is actually committing, or is attempting to commit an offense" or when an offense
"has in fact just been committed." The requirement of immediacy is obvious from the word "just,"
which, according to Webster, means "a very short time ago." The arrest must be made
almost immediately or soon after these acts, not at any time after the suspicion of the arresting
officer begins, no matter how long ago the offense was committed.
I am also uneasy over the following observations in the present resolution which I hope will not be
the start of another dangerous doctrine:
The Court, it is true, took into account the admissions of the arrested persons of their
membership in the CPP/NPA, as well as their ownership of the unlicensed firearms,
ammunitions and documents in their possession. But again, these admissions, as
revealed by the records, strengthen the Court's perception that truly the grounds
upon wmch the arresting officers based their arrests without warrant, are supported
by probable cause, i.e., that the persons arrested were probably guilty of the
commission of certain offenses, in compliance with Section 5, Rule 113 of the Rules
of Court.
I can only repeat my own misgivings when I dissented in the recent case of People vs. Malmstedt,
G.R. No. 91107, June 19, 1991, where I noted: "The conclusion that there was probable cause may
have been influenced by the subsequent discovery that the accused was carrying a prohibited drug.
This is supposed to justify the soldier's suspicion. In other words, it was the fact of illegal possession
that retroactively established the probable cause that validated the illegal search and seizure. It was
the fruit of the poisonous tree that washed clean the tree itself."
I submit that the affirmation by this Court of the Garcia-Padilla decision to justify the illegal arrests
made in the cases before us is a step back to that shameful past when individual rights were
wantonly and systematically violated by the Marcos dictatorship. It seems some of us have short
memories of that repressive regime, but I for one am not one to forget so soon. As the ultimate
defender of the Constitution, this Court should not gloss over the abuses of those who, out of
mistaken zeal, would violate individual liberty in the dubious name of national security. Whatever
their ideology and even if it be hostile to ours, the petitioners are entitled to the protection of the Bill
of Rights, no more and no less than any other person in this country. That is what democracy is all
about.
FELICIANO, J., concurring and dissenting:
I concur in the result reached by the majority in the Resolution disposing of the Motion for
Reconsideration.
At the same time, however, I feel compelled to dissent from certain statements made by the majority
principally concerning the applicability of the "continuing crimes" doctrine to the problem of arrests
without warrants. It seems clear that these statements are really obiter dicta, since they are quite
unnecessary for sustaining the actual results reached in the majority Resolution. This was summarily
pointed out in my very brief statement concurring in the result reached in the original Decision of the
Court dated 9 July 1990. The subsequent developments in several of the cases here consolidated,
which are carefully detailed in the majority Resolution, make this even clearer. Nonetheless, the
majority Resolution has taken the time and trouble expressly to reiterate the "continuing crimes"
doctrine as applicable in respect of warrantless arrests. Although the above statements are obiter,
they have been made and, I believe, need to be addressed to some extent and the inter-relation of
the "continuing crimes" doctrine with constitutional rights explored.
1. We start at the beginning, that is, the constitutional guarantee against unreasonable seizures of
persons. Article III Section 2 of the Constitution reads:
Sec. 2. The right of the people to be secure in their persons, houses, papers, and
effects against unreasonable searches and seizures 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. (Emphais supplied)
Under the above provision, arrests, i.e., the constraint and seizure of the persons of individual
members of society, must, as a general rule, be preceded by the securing of a warrant of arrest, the
rendition of which complies with the constitutional procedure specified in Article III Section 2. Arrests
made without a warrant issued by a judge after complying with the constitutional procedure,
are prima facie unreasonable seizures of persons within the meaning of Article III Section 2.
2. There are, however, certain well-recognized exceptions to the norm that warrantless arrests are
unreasonable seizures of persons. Those exceptions are, in our day, essentially found in Section
5(a) and (b) of Rule 113 of the Rules of Court. Section 5(a) and (b) mark out the situations where an
officer of the law, or a private person for that matter, may lawfully arrest a person without previously
securing a warrant of arrest. The full text of Section 5, Rule 113 follows:
Sec. 5. Arrest without warrant, when lawful. A peace officer or a private person
knowledge of facts indicating that the person to be arrested has committed it; and
establishment or place where he is serving final judgment or temporarily confined
while his case is pending, or has escaped while being transferred from one
confinement to another.
In cases falling under paragraphs (a) and (b) hereof, the person arrested without a
warrant shall be forthwith delivered to the nearest police station or jail, and he shall
be proceeded against in accordance with Rule 112, Section 7.
3. Before examining the scope and implications of Section 5(a) and (b), it is important to recall that
judicial interpretation and application of Section 5(a) and (b) must take those provision for what they
are: they areexceptions to a vital constitutional norm enshrined in the Bill of Rights. Exceptions to
such a norm must be strictly construed so as not to render futile and meaningless the constitutional
rule requiring warrants of arrests before the persons of individuals may be lawfully constrained and
seized. The ordinary rule generally applicable to statutory provisions is that exceptions to such
provisions must not be stretched beyond what the language in which they are cast fairly warrants,
and all doubts should be resolved in favor of the general provision, rather than the exception. 1 This
rule must apply with special exigency and cogency where we deal, not with an ordinary statutory provision, but with a constitutional
guarantee. 2 Exceptions to such a guarantee must be read with especial care and sensitivity and kept within the limits of their language so to
keep vital and significant the general constitutional norms warrantless arrests. In Alvarez vs. Court of First Instance, 3 this Court, stressing
that:
II. As the protection of the citizen and the maintenance of his constitutional rights is
one of the highest duties and privileges of the court. these constitutional guaranties
should be given a liberal construction or a strict construction in favor of the individual,
to prevent stealthy encroachment upon, or gradual depreciation of, the rights
secured by them (State vs. Custer County, 198 Pac., 362; State vs. McDaniel, 231
Pac., 965; 237 Pac., 373). Since the proceeding is a drastic one, it is the general rule
that statutes authorizing searches and seizures or search warrants must be strictly
construed (Rose vs. St. Clair, 28 Fed. [2d], 189; Leonard vs. U.S., 6 Fed. [2d], 353;
Perry vs. U.S., 14 Fed. [2d], 88; Cofer vs. State, 118 So., 613. (emphasis supplied)
held that:
. . . All illegal searches and seizures are unreasonable whith lawful ones are
reasonable. 4
In People vs. Burgos, 5 this Court reiterated the above rule in the following terms:
There is no such personal knowledge in this case. Whatever knowledge was
possessed by the arresting officers, it came in its entirety from the information
furnished by Cesar Masamlok. The location of the firearm was given by the
appellant's wife.
At the time of the appellant's arrest, he was not in actual possession of any firearm or
subversive document. Neither was he commit ting any act which could be described
as subversive. He was, in fact plowing his field at the time of the arrest.
The right of a person to be secure against any unreasonable seizure of his body and
any deprivation of his liberty is a most basic and fundamental one. The statute or rule
which allows exceptions the requirement of warrants of arrest is strictly construed.

Any exception must clearly fall within the situations when securing a warrant would
be absurd or is manifestly unnecessary as provided by the Rule. We cannot liberally
construe the rule on arrests without warrant or extend its application beyond the
cases specifically provided by law. To do so would infringe upon personal liberty and
set back a basic right so often vilated and so deserving of full protection. 6 (emphasis
supplied)
4. Section 5(a) relates to situations where a crime is committed or attempted to be committed in the
presence of the arresting officer. The fact of the occurrence of the offense, or of the attempt to
commit an offense, in the presence of the arresting officer, may be seen to be the substitute, under
the circumstances, for the securing of a warrant of arrest. In such situation, there is an obvious need
for immediate, even instantaneous, action on the part of the arresting officer to suppress the breach
of public order and to prevent further breaches then and there. Section 5(a) may, moreover, be seen
to refer to overt acts constitutive of a crime taking place in the presence of the arresting officer. The
term "presence" in this connection is properly and restrictively construed to relate to acts taking
place within the optical or perhaps auditory perception of the arresting officer. 7 If no overt, recognizably
criminal, acts occur which are perceptible through the senses of the arresting officer, such officer could not, of course, become aware at all
that a crime is being committed or attempted to be committed in his presence. 8 It is elementary that purely mental or psychological
phenomena, not externalized in overt physical acts of a human person, cannot constitute a crime in our legal system. For a crime to exist in
our legal law, it is not enough that mens rea be shown; there must also be an actus reus. If no such overt acts are actually taking place in the
presence or within the sensor perception of the arresting officer, there would, in principle, be ample time to go to a magistrate and ask for a
warrant of arrest. There would, in other words, not be that imperious necessity for instant action to prevent an attempted crime, to repress the
crime being committed, or to capture the doer of the perceive criminal act, the necessity which serves as the justification in law of warrantless
arrests under Section 5(a).
5. Turning to Section 5 (b), two (2) elements must be coincide before a warrantless arrest may be
sustained under this subsection: 1) the offense must have "just been committed" when the arresting
officer arrived in the scene; and 2) the officer must have "personal knowledge" of facts indicating tha
the person to be arrested has committed the offense. In somewhat different terms, the first
requirement imports that th effects or corpus of the offense which has just been committed are still
visible: e.g. a person sprawled on the ground, dead of gunshot wound; or a person staggering
around bleeding profusely from stab wounds. The arresting officer may not ha seen the actual
shooting or stabbing of the victim, and thereto the offense can not be said to have been committed
"in [his] presence." The requirement of "personal knowledge" on the part of the arresting officer is a
requirement that such knowledge must have been obtained directly from sense perception the
arresting officer. That requirement would exclude informtion conveyed by another person, no matter
what his reputation for, truth and reliability might be. 9 Thus, where the arresting officer comes upon a person dead on
the street and sees a person running away with a knife from where the victim is sprawled the ground, he has personal knowledge of facts
which render it highly probable that the person fleeing was the doer of the criminal deed. The arresting officer must, in other words, perceive
through his own senses some act which directly connects the person to be arrested with the visible effects or corpus of a crime which has
"just been committed."
6. The use of the words "has in fact just been committed" underscores the requirement that the time
interval between the actual commission of the crime and the arrival of the arresting officer must be
brief indeed. In the first place, the word "just" was fairly recently inserted in Section 5(b) by the 1985
Rules on Criminal Procedures, no doubt in order to underscore the point here being made. In the
second place, a latitudinarian view of the phrase "has in fact just been committed" would obviously
render pointless the requirement in Section 5(a) that the crime must have been committed "[in] the
presence" of the arresting officer. In G.R. No. 86332, the warrantless arrest of Alfredo Nazareno 14days after the occurrence of the killing with which he was charged along with other persons, cannot
by any standard be justified under Section 5(b). In G.R. No. 81567, Dural was arrested without
warrant while being treated in a hospital the day after the shooting of the policemen in which he was
suspected to have been a participant. While 1-day may be substantially different from 14-days, still it
must be pointed out that at the time Dural was arrested in the hospital, the killing of the two (2)
policemen in Caloocan City far away from the St. Agnes Hospital in Quezon City could not
reasonably be said to have been just committed. There was no showing, nor did the Court require it,
that the arresting officers had been in "hot pursuit" of Dural beginning at the scene of the killing and
ending the next day in the hospital.
7. It is worth noting that the requisite of "personal knowledge" on the part of the arresting officer who
is determining "probable cause" right at the scene of the crime, is in a sense more exacting than the
standard imposed by the Constitution upon the judge who, in the seclusion of his chambers,
ascertains "probable cause" by examining the evidence submitted before him. The arresting officer
must himself have "personal knowledge"; the magistrate may rely upon the personal knowledge of
the witnesses examined by or for him in issuing a warrant of arrest. In the present Resolution, the
majority begins with noting the requirement of "personal knowledge" in Section 5(b), but winds up in
the next page with a very diluted standard of "reasonable belief and "good faith" on the part of the
arresting officers. The stricter standard is properly applicable to the officers seizing a person without
a warrant of arrest, for they are acting in derogation of a constitutional right. That the person
unlawfully arrested without a warrant may later turn out to be guilty of the offense he was suspected
of in the first place is, course, quite beside the point. Even a person secretly guilty some earlier
crime is constitutionally entitled to be secure from warrantless arrest, unless he has in fact
committed physically observable criminal acts in the presence of the arresting officer or hadjust
committed such acts when the arresting officer burst upon the scene.
8. Examination of the utilization in the majotity Resolution of the doctrine of "continuing crimes,"
shows that doctrine is here being used as a substitute for the requirement under Section 5(a) that
the offense "has in fact just been presence of the arresting officer arrived, but rather because the
person to be arrested is suspected of having committed a crime in the future. The pertinent portion
of the majority Resolution reads:
. . . Dural did not cease to be, or because less of a subversive, FOR PURPOSE OF
ARREST, simply because he was, at the time of arrest, confined in the St. Agnes
Hospital. . . . That Dural had shot the two (2) policemen in Caloocan City as part of
his mission as a "sparrow" (NPA member) did not end there and then. Dural, given
another opportunity, would have shot or would shoot other policemen anywhere as
agents or representatives of organized government. It is in this sense that
subversion like rebelion (or insurrection) is perceived here as a continuing offense.
Unlike other so-called "common" offenses, i.e., adultery, murder, arson, etc., which
generally end upon their commission,subversion and rebellion are anchored on an
ideological base which compels the repetition of the same acts of lawlessness and
violence until the overriding objectives of overthrowing organized government is
attained. (Emphasis supplied)
9. I respectfully submit that an examination of the "continuing crimes" doctrine as actually found in
our case law offers no reasonable basis for such use of the dotrine. More specifically, that doctrine,
in my submission, does notdispence with the requirement that overt acts recognizably criminal in
character must take place in the presence of the arresting officer, or must have just been committed
when the arresting officer arrived, if the warrantless arrest it to be lawful. The "continuing crimes"
doctrine in our case law (before rendition of Garcia-Padilla vs. Enrile10 does not sustain warrantless arrests of
person to be arrested is, as it were, merely resting in between specific lawless and commit the moment he gets an opportunity to do so.
Our case law shows that the "continuing crimes" doctrine has been used basically in relation to two
(2) problems: the first problem is that of determination of whether or not a particular offense was
committed within the territorial jurisdiction of the trial court; the second problem is that of determining
whether a single crime or multiple crimes were committed where the defense of double jeopardy is
raised.
10. In respect of the first problem, the gist of our case law is that where some of the ingredients or
elements of an offense taken place within the territorial jurisdiction of one court and some other
ingredients or elements of the same offense occur in the territory of another court, (e.g., estafa or
malversation) either one of the two courts has jurisdiction to try the offense. Where all of the
essential elements of a crime take place within the territory of one court but "by reason of he very
nature of the offense committed" the violation of the law is deemed to be "continuing," then the court
within whose territorial jurisdiction the offense continues to be committed, has jurisdiction to try a
person charged with such offense. In the latter case, the offense is deemed to be continuing
because some or all of the elements constituting the offense occurred within jurisdiction of the
second court (e.g., kidnapping and illegal detention; libel; evasion of service of sentence). The
criminal acts are regarded as repeated or as continuing within the province or city where the
defendant was found and arrested. 11 Clearly, overt acts of the accussed constituting elements of the crime charged must be
shown to have been committed within the territorial jurisdiction of the court where he is charged.
11. Turning to the second type of problem, the question is normally presented in terms of whether
one crime or multiple crimes were committed by the accused. Where the series of acts actually
alleged and proven to have been committed by the accused constituted only one and the same
crime, the defense of double jeopardy becomes available where a second information is filed
covering acts later in the series. Upon the other hand, where the acts of the accused constituted
discrete, multiple offenses, each act comprising a distinct and separate offense, the double jeopardy
defense is non-available. 12 The point worth stressing is that in passing upon the issue relating to the unity or multiplicity of
offense committed, the overt acts of the accused constitutive either of the single offense or of the plural offenses, must be shown.
12. My final submission, is that, the doctrine of "continuing crimes," which has its own legitimate
function to serve in our criminal law jurisprudence, cannot be invoked for weakening and dissolving
the constitutional guarantee against warrantless arrest. Where no overt acts comprising all or some
of the elements of the offense charged are shown to have been committed by the person arrested
without warrant, the "continuing crime" doctrine should not be used to dress up the pretense that a
crime, begun or committed elsewhere, continued to be committed by the person arrested in the
presence of the arresting officer. The capacity for mischief of such a utilization of the "continuing
crimes" doctrine, is infinitely increased where the crime charged does not consist of unambiguous
criminal acts with a definite beginning and end in time and space (such as the killing or wounding of
a person or kidnapping and illegal dentention or arson) but rather of such problematic offenses as
membership in or affiliation with or becoming a member of, a subversive association or organization.
For in such cases, the overt constitutive acts may be morally neutral in themselves, and the
unlawfulness of the acts a function of the aims or objectives of the organization involved. Note, for
instance, the following acts which constitute prima facie evidence of "membership in any subversive
association:" 13
a) Allowing himself to be listed as a member in any book or any of the lists, records,
correspondence, or any other document of the organization;
b) Subjecting himself to the discipline of such association or organization in any form
whatsoever;
c) Giving financial contribution to such association or organization in dues,
assessments, loans or in any other forms;
xxx xxx xxx
f) Conferring with officers or other members of such association or organization in
furtherance of any plan or enterprise thereof;
xxx xxx xxx

h) Preparing documents, pamphlets, leaflets, books, or any other type of publication
to promote the objectives and purposes of such association or organization;
xxx xxx xxx
k) Participating in any was in the activities, planning action, objectives, or purposes of
such association or organization;
xxx xxx xxx
It may well be, as the majority implies, that the constitutional rule against warrantless arrests and
seizures makes the law enforcement work of police agencies more difficult to carry out. It is not our
Court's function, however, and the Bill of Rights was not designed, to make life easy for police forces
but rather to protect the liberties of private individuals. Our police forces must simply learn to live
with the requirements of the Bill of Rights, to enforce the law by modalities which themselves comply
with the fundamental law. Otherwise they are very likely to destroy, whether through sheer ineptness
or excess of zeal, the very freedoms which make our polity worth protecting and saving.
REGALADO, J.: Separate Opinion:
While I have heretofore concurred in the ponencia in the above-entitled cases and I reiterate such
concurrence, I wish to unburden myself of some reservations on the rationale adopted in G.R. No.
86332.
It is posited in this resolution that "(a)lthough the killing of Bunye II occurred on 14 December 1988,
while Nazareno's arrest without warrant was made only on 28 December 1988, or 14 days later, the
arrest falls under Section 5(b) of Rule 113, since it was only on 28 December 1988 that the police
authorities came to know that Nazareno was probably one of those guilty in the killing of Bunye II."
I am afraid that there has been a misapplication of Section 5(b) of Rule 113 which, while authorizing
a peace officer or a private person to effect a warrantless arrest, specifically conditions that grant of
authority upon the situation "(w)hen an offense has in fact just been committed, and he has personal
knowledge of facts indicating that the person to be arrested has committed it."
It is significant that when the corresponding provisions of the 1964 Rules of Court were amended in
the 1985 Rules of Criminal Procedure, the particular revision of paragraph (b) of the aforesaid
section consisted in imposing the requirements that the person making the arrest has personal
knowledge of the facts indicating that the arrestee is responsible for an offense which has just
been committed.
Now, according to the resolution, "the records show that in the morning of 14 December 1988,
Romulo Bunye II was killed by a group of men in Alabang, Muntinlupa, Metro Manila; that at about 5
o'clock in the morning of 28 December 1988, Ramil Regala, one of the suspects in the said killing,
was arrested and he pointed to Narciso Nazareno as one of his companions during the killing of
Bunye II; that at 7:20 of the same morning (28 December 1988), the police agents arrested
Nazareno, without warrant, for investigation."
Since, clearly, the arresting police agents merely acted upon the information imparted by one of the
suspects, Ramil Regala, the resolution has emasculated the requirement in Section 5(b) that the
person making the arrest must have had personal knowledge of factual indications regarding the
complicity or liability of the arrestee for the crime. Yet, that amendment requiring such personal
knowledge must have been designed to obviate the practice in the past of warrantless arrests being
effected on the basis of or supposed reliance upon information obtained from third persons who
merely professed such knowledge or, worse, concocted such reports for variant reasons not
necessarily founded on truth.
Further, and obviously as an added deterrent to the possibility that such arrest without a warrant may
result from imputations based on dubious motives, it is now required that the crime must have just
been committed. The recency contemplated here, in relation to the making of the warrantless arrest,
is the time when the crime was in fact committed, and not the time when the crime was in fact
committed, and not the time when the person making the arrest learned or was informed of such
commission. Otherwise, at the risk of resorting to reductio ad absurdum, such warrantless arrests
could be validly made even for a crime committed, say, more than a year ago but of which the
arresting officer received information only today.
The brevity in the interval of time between the commission of the crime and the arrest, as now
required by Section 5(b), must have been dictated by the consideration, among others, that by
reason of such recency of the criminal occurrence, the probability of the arresting officer acquiring
personal and/or reliable knowledge of such fact and the identity of the offender is necessarily
enhanced, if not assured. The longer the interval, the more attenuated are the chances of his
obtaining such verifiable knowledge. In the case under consideration, the obtention of information of
a crime committed fourteen (14) days earlier necessarily undermines the capacity of the arresting
officer to ascertain the reliability of the information he is acting upon and to acquire personal
knowledge thereof after such verification.
It may be granted, as an ad hoc proposition, that the arrest of Nazareno was based on probable
cause and it was not whimsical, at least, in this instance. It is correct to say that prevailing conditions
affecting national security and stability must also be taken into account. However, for the reasons
above elucidated, I take exception to the conclusion that the conditions in Section 5(b) of Rule 113
had been complied with in this case. It is true that the corresponding information was filed against
Nazareno shortly after his arrest but that, precisely, is another cause for controversy. Definitely, if the
rules on arrest are scrupulously observed, there would be no need for the usual invocation of Ilagan
as a curative balm for unwarranted incursions into civil liberties.
SARMIENTO, J.: dissenting:
I reiterate my dissent. I submit that in spite of its "clarificatory" resolution,
1 the majority has not shown why the
arrests in question should after all be sustained.
According to the majority, Rolando Dural (G.R. No. 815667) was validly arrested without a warrant
and that his arrest was sufficient compliance with the provisions of Section 5, paragraph (b), Rule
113, of the Rules of Court. According to the majority, he, Dural, was after all committing an offense
(subversion being supposedly a continuing offense) and that the military did have personal
knowledge that he had committed it. "Personal knowledge," according to the majority, is supposedly
no more than "actual belief or reasonable grounds . . . of suspicion," and suspicion is supposedly
reasonable:
. . . when, in the absence of actual belief of the arresting officers, the suspicion that
the person to be arrested is probably guilty of committing the offense, is based on
actual facts, i.e., supported by circumstances sufficiently strong in themselves to
create the probable cause of guilty of the person to be arrested. A reasonable
suspicion therefore must be founded on probable cause, coupled with good faith on
the part of the peace officers making the arrest. 2
As I said, I dissent.
First, and as I held, subversion, as an offense punished by Executive Order No. 167, as amended by
Executive Order No. 276, in relation to Republic Act No. 1700, 3 is made up of "overt acts." 4 In People
vs. Ferrer 5 this Court defined "overt acts" as follows:
. . . Indeed, were the Anti-Subversion Act a bill of attainder, it would be totally

unnecessary to charge Communists in court, as the law alone, without more would
suffice to secure their punishment. But the undeniable fact is that their guilt still has
to be judicially established. The Government has yet to prove at the trial that the
accused joined the Party knowingly, willfully and by overt acts, and that they joined
the Party, knowing its subversive character and with specific intent to further its basic
objective,i.e., to overthrow the existing government by force, deceit, and other illegal
means and place the country under the control and domination of a foreign power.
As Ferrer held, that above "overt acts" constitute the essence of "subversion," and as Ferrer has
taken pains to explain, the law requires more than mere membership in a subversive organization to
make the accused liable. I respectfully submit that for purposes of arrest without a warrant, that
above "overt acts" should be visible to the eyes of the police officers (if that is possible), otherwise
the accused can not be said to be committing any offense within the contemplation of the Rules of
Court, to justify police action, and otherwise, we would have made "subversion" to mean mere
"membership" when, as Ferrer tells us, subversion means more that mere membership.
I find strained that majority's interpretation of "personal knowledge," as the majority would interpret it,
as no more than "actual belief or reasonable suspicion," that is, "suspicion . . . based on actual
facts . . . [and] founded on probable cause, coupled with good faith . . . " 6 I submit that personal knowledge
means exactly what it says that the peace officer is aware that the accused has committed an offense, in this case, membership in a
subversive organization with intent to further the objectives thereof. It is to be noted that prior to their amendment, the Rules (then Section 6)
spoke of simple "reasonable ground" which would have arguably encompassed "actual belief or suspicion . . . coupled with good faith"
referred to by the majority. Section 5(b) as amended, however, speaks of "personal knowledge"; I respectfully submit that to give to "personal
knowledge" the same meaning as "reasonable ground" is to make the amendment as useless exercise.
What, furthermore, we have here was a mere "confidential information" that a "sparrow man" had
been wounded and was recuperating in the hospital, and that that person was Rolando Dural.
Clearly, what we have is second-hand, indeed, hearsay, information, and needless to say, not
personal knowledge.
I would like to point out that in the case of People vs. Burgos 7 this Court rejected a similar arrest because of lack of
personal knowledge, and, as the Court held, "[w]hatever knowledge was possessed by the arresting officers came in its entirety from the
information furnished by [another] . . ." 8 I do not see how We can act differently here.
I do not find the majority's reliance on the case of United States vs. Santos 9 to be well-taken. Santos involved
a prosecution for coercion (against a peace officer for affecting an arrest without a warrant). Santos, however, did in fact affirm the illegality of
the arrest but absolved the peace officer on grounds of good faith. Santos did not say that so long as he, the peace officer, was acting in
good faith, as the majority here says that the military was acting in good faith, the arrest is valid. Quite to the contrary, Santos suggested that
notwithstanding good faith on the part of the police, the arrest is nevertheless subject to question.
As far as the information leading to the arrest of Dural is concerned, the majority would quite
evidently swallow the version of the military as if in the first place, there truly was an information, and
that it was reliable, and that "it was found to be true;" 10 and as if, in the second place, the hospital authorities (the
alleged informants) could have legally tipped the military under existing laws. We have, it should be noted, previously rejected such a species
of information because of the lack of "compulsion for [the informant] to state truthfully his charges under pain of criminal
prosecution." 11 Here, it is worse, because we do not even know who that informant was.
The majority is apparently unaware that under Executive Order No. 212, amending Presidential
Decree No. 169, hospital establishments are required to report cases of acts of violence to
"government health authorities" not to the military.
I am concerned that if the military were truly armed with reliable information and if it did have
personal knowledge to believe that Dural had committed an offense, there was no reason for the
military to ignore the courts, to which the Constitution after all, gives the authority to issue warrants.
As People vs. Burgos held:
More important, we find no compelling reason for the haste with which the arresting
officers sought to arrest the accused. We fail to see why they failed to first go through
the process of obtaining a warrant of arrest, if indeed they had reasonable ground to
believe that the accused had truly committed a crime. There is no showing that there
was a real apprehension that the accused was on the verge of flight or escape.
Likewise, there is no showing that the whereabouts of the accused were unknown. 12
I do not likewise see how the petitioners Amelia Roque, Wilfredo Buenaobra, Domingo Anonuevo,
Ramon Caspile, and Vicky Ocaya (G.R. Nos. 84581-82; 83162) could have been lawfully picked up
under similar circumstances. As the majority points out, the military had (again) acted on a mere tipthe military had no personal knowledge (as I elaborated what personal knowledge means). Second, I
do not think that the majority can say that since Amelia Roque, et al. "were NPA's anyway" (As
Roque, et al. allegedly admitted), immediatearrests were "prudent" and necessary. As I said, that
Roque, et al. were admitted "NPA's" is (was) the question before the trial court and precisely, the
subject of controversy. I think it is imprudent for this Court to pass judgment on the guilt of the
petitioners-since after all, and as the majority points out, we are talking simply of the legality of the
petitioner's arrests.
More important, that Roque, et al. "were NPA's anyway" is evidently, a mere say-so of the military,
and evidently, the Court is not bound by bare say-so's. Evidently, we can not approve an arrest
simply because the military says it is a valid arrest (the accused being "NPA's anyway") that would
be abdication of judicial duty and when, moreover, the very basis of the claim rests on dubious
"confidential information."
According to the majority, we are speaking of simple arrests; we are not talking of the guilt or
innocence of the accused. I certainly hope not, after the majority referred to Rolando Dural as a
"sparrow man" and having Amelia Roque, et al. admit to being NPA's."
It is to gloss over at any rate, the nature of arrest as a restraining on liberty. It is to me immaterial
that the guilt of the accused still has to be established, since meanwhile, the accused are in
fact being deprived of liberty. Arrest to me, is something to crow about, even if in the opinion of the
majority, it is nothing to crow about (a mere "administrative measure").
I can not, again, accept the validity of the arrests of Deogracia Espiritu or Narciso Nazareno (G.R.
Nos. 85727; 86332). Espiritu was supposedly picked up for inciting to sedition, in uttering
supposedly, on November 22, 1988, the following:
Bukas tuloy and welga natin . . . hanggang sa magkagulo na. 13
Espiritu however was arrested on November 23, 1988, a day later-and in no way is "inciting to
sedition" a continuing offense. Obviously, the majority is not saying that it is either, but that:
. . . Many persons may differ as to the validity of such perception and regard the
language as falling within free speech guaranteed by the Constitution. But, then,
Espiritu has not lost the right to insist, during the trial on the merits, that he was just
exercising his right to free speech regardless of the charged atmosphere in which it
was uttered. But, the authority of the peace officers to make the arrest, without
warrant, at the time the words were uttered, or soon thereafter, is still another thing.
In the balancing of authority and freedom, which obviously becomes difficult at times,
the Court has, in this case, titled the scale in favor of authority but only for purposes
of the arrest (not conviction). Let it be noted that the Court has ordered the bail for
Espiritu's release to be reduced from P60,000.00 to P10,000.00. 14
And obviously, the majority is concerned about whether or not Espiritu's speech was after all,
protected speech, but apparently, that is also of no moment, since: (1) that is a matter of defense; (2)
we are talking of mere arrests, and as far as arrests are concerned, "the Court has, in this case,
titled in favor of authority," 15 and (3) we have, anyway, given a reduced bail to the accused.
First, that the accused's statement is in the category of free speech is not only plain to my mind, it is
a question I do not think the majority can rightly evade in these petitions without shirking the Court's
constitutional duty. It is to my mind plain, because it does not contain enough "fighting words"
recognized to be seditious. 16 Secondly, it is the very question before the Courtwhether or not the statement in question
constitutes an offense for purposes of a warrantless arrest. It is a perfectly legal question to my mind and I am wondering why we can not
answer it.
What the majority has not answered, as I indicated, is that inciting to sedition is in no way a
continuing offense, and as I said, the majority is not apparently convicted that it is, either. Of course,
the majority would anyway force the issue: "But the authority of the peace officers to make the
arrest, without warrant, at the time the words were uttered, or soon thereafter, is still another
thing." 17 First, Espiritu was picked up the following day, and in no way is "the following day" "soon thereafter". Second, we would have
stretched the authority of peace officers to make warrantless arrests for acts done days before. I do not think this is the contemplation of the
Rules of Court.
As in the case of Burgos in People vs. Burgos, 18 Espiritu was neither "on the verge of flight or escape" 19 and there was
no impediment for the military to go through the judicial processes, as there was none in the case of Burgos.
In the case of People vs. Aminnudin, 20 this Court held that unless there "was a crime about to be committed or had just been
committed," and unless there existed an urgency as where a moving vehicle is involved, instant police action can not be justified.
"In the balancing of authority and freedom," states the majority, "the Court has, in this case, titled in
favor of authority but only for purposes of the arrest (not conviction)." 21 It is a strange declaration, first, because
it is supported by no authority (why the Court should "tilt" on the side of Government), and second, because this Court has leaned, by
tradition, on the side of liberty as the custodian of the Bill of Rights even if we were talking of "simple" arrests.
I do not understand why this Court should "tilt" . . . the scale in favor of authority . . . in this
case," 22 as if to say that normally, this Court would have tilted the scales the other way. I do not understand why these cases are
apparently, special cases, and apparently, the majority is not telling us neither. I am wondering why, apart from the fact that these cases
involved, incidentally, people who think differently from the rest of us.
The majority goes on:

Although the killing of Bunye II occurred on 14 December 1988, while Nazareno's
arrest without warrant was made only on 28 December 1988, or 14 days later, the
arrest falls under Section 5(b) of Rule 113, since it was only on 28 December 1988
that the police authorities came to know that Nazareno was probably one of those
guilty in the killing of Bunye II. 23
With all due respect, I do not think that the majority is aware of the serious implications of its
pronouncement on individual rights (and statutory construction in general), and I feel I am
appropriately concerned because as a member of the Court, I am co-responsible for the acts of my
colleagues and I am afraid that I may, rightly or wrongly, be in time made to defend such an
indefensible pronouncement.
Section 5(b) of Rule 113 is clear and categorical: the offense must have been "just committed" and
the authorities must have "personal knowledge."
In no way can an offense be said to have been "just committed" fourteen days after it was in fact
(allegedly) committed. In no way can the authorities be said to have "personal knowledge" two
weeks thereafter; whatever "personal knowledge" they have can not possibly be "personal
knowledge" of a crime that had "just been committed;" whatever "personal knowledge" they have is
necessarily "personal knowledge" of a crime committed two weeks before.
In no way can Nazareno's arrest be said to be an arrest sanctioned by the exceptional provisions of
the Rules.
I am not saying that the military can not act in all cases, and it is sheer ignorance to suppose that I
am saying it, (or worse, that I am "coddling criminals"). I am not saying that a suspected criminal, if
he can not be arrested without a warrant, can not be arrested at all but that the military should
first procure a warrant from a judge before effecting an arrest. It is not too much to ask of so-called
law enforcers.
As it is, the majority has enlarged the authority of peace officers to act, when the Rules have
purposely limited it by way of an exception, precisely, to the general rule, mandated by the
Constitution no less, that arrests may be done only through a judicial warrant. As it is, the majority
has in fact given the military the broadest discretion to act, a discretion the law denies even
judges 24 today it is fourteen days, tomorrow, one year, and sooner, a decade. I submit that a year, a decade, would not be in fact
unreasonable, following the theory of the majority, since the military can claim anytime that it "found out only later," as the majority did not
find it unreasonable for the Capital Command to claim that it "came to know that Nazareno was probably one of those guilty in the killing of
Bunye II" 25and none of us can possibly dispute it.
I would like to stress strongly that we are not talking of a simple "administrative measure" alonewe
are talking ofarrests, of depriving people of libertyeven if we are not yet talking of whether or not
people are guilty. That we are not concerned with guilt or innocence is hardly the point, I respectfully
submit, and it will not minimize the significance of the petitioners' predicament.
With respect to Wilfredo Buenaobra, I submit that the majority has, as in the cases of Amelia
Roque, et al., ignored the fact that Buenaobra's alleged "admission" (actually, an uncounselled
confession) was precisely, the basis for Buenaobra's arrest. It is to beg the question, I respectfully
submit, to approve the military's action for the reason that Buenaobra confessed, because
Buenaobra confessed for the reason that the military, precisely, pounced on him. I am not to be
mistaken for prejudging Buenaobra's innocence (although it is supposed to be presumed) but I can
not imagine that Buenaobra would have voluntarily proclaimed to the military that he was an NPA
courier so that the military could pounce on him.
I respectfully submit that the cases Garcia vs. Padilla 26 and Ilagan vs. Enrile 27 have been better days. I do not see
how this court can continuously sustain them "where national security and stability are still directly challenged perhaps with greater vigor
from the communist rebels." 28 First and foremost, and as the majority has conceded, we do not know if we are in fact dealing with
"Communists." The case of Deogracias Espiritu, for one, hardly involves subversion. Second, "Communism" and "national security" are old
hat the dictator's own excuses to perpetuate tyranny, and I am genuinely disappointed that we would still fall for old excuses. Third, Garcia
and Ilagan rested on supposed grounds that can not be possibly justified in a regime that respects the rule of law that the Presidential
Commitment Order (PCO) is a valid presidential document (Garcia) and that the filing of an information cures a defective arrest (Ilagan).
Fourth and finally, it is evident that neither "Communist threat" nor "national security" are valid grounds for warrantless arrests under Section
5(b) of Rule 113.
I most respectfully submit that Garcia and Ilagan have not only been diluted by subsequent
jurisprudence (e.g., People vs. Burgos, supra), they are relics of authoritarian rule that can no longer
be defended, if they could have been defended, in Plaza Miranda or before our own peers in the bar.
"What is important," says the majority, "is that every arrest without warrant be tested as to its legality,
via habeas corpus proceedings." 29 I supposed that goes without saying. But it is also to patronize the petitioners and simply, to
offer a small consolation, when after all, this Court is validating their continued detention. 30 With all due respect, I submit that it is nothing for
which the public should be elated.
A Final Word
As I began my dissent, in this Resolution and the Decision sought to be reconsidered, I reiterate one
principle: The State has no right to bother citizens without infringing their right against arbitrary State
action. "The right of the people," states the Constitution, "to be secure in their persons, houses,
papers, and effects against unreasonable searchers and seizures of whatever nature and for any
purpose shall be inviolable . . . ." 31 "The State," the Charter likewise states, "values the dignity of every human person and
guarantees full respect for human rights." 32 The Constitution states the general rule the majority would make the exception the rule, and
the rule the exception. With all due respect, this is not what constitutionalism is all about.
I submit that the "actual facts and circumstances" the majority refers to are, in the first place,
doubtful, the "actual facts and circumstances" being no more than "confidential information"
(manufactured or genuine, we have no way of telling) and in the second place, any information with
which the military (or police) were armed could no more than be hearsay, not personal, information. I
submit that the "actual facts and circumstances" the majority insists on can not justify the arrests in
question under Section 5(b) of Rule 113, the rule the majority insists is the applicable rule.
Apparently, Section 5(b) is not the applicable rule, as far as Deogracias Espiritu and Narciso
Nazareno are concerned; certainly, it is not the Section 5(b) I know. As I indicated, Espiritu was
arrested one day after the act, allegedly, inciting to sedition; Nazareno was picked up fourteen days
after it (allegedly, murder). Yet, the majority would approve the police's actions nonetheless because
the police supposedly "found out only later." I submit that the majority has read into Section 5(b) a
provision that has not been written there.
"More than the allure of popularity of palatability to some groups," concludes the majority, "what is
important is that the Court be right." 33
Nobody has suggested in the first place, that Umil was and is a question of popularity or palatability.
Umil is a question, on the contrary, of whether or not the military (or police), in effecting the arrests
assailed, had complied with the requirements of law on warrantless arrests. Umil is a question of
whether or not this Court, in approving the military's actions, is right.
In spite of "EDSA", a climate of fear persists in the country, as incidences of disappearances, torture,
hamletting, bombings, saturation drives, and various human rights violations increase in alarming
rates. In its update for October, 1990, the Task Force Detainees of the Philippines found:
An average of 209 arrested for political reasons monthly since 1988, 94% of them illegally;
Four thousand four hundred eight (4,408) political detentions from January, 1989 to September,
1990, 4,419, illegally;
Of those arrested, 535 showed signs of torture; 280 were eventually salvaged, 40, of frustrated
salvage, and 109 remained missing after their arrest;
Forty (40) cases of massacres, with 218 killed; 54 cases of frustrated massacre, in which 157 were
wounded;
The victims belonged to neighborhood and union organizations;
Since February, 1986, 532 of those illegally arrested were women;
From January to June 1990, 361 children were detained for no apparent reason;
One million ten thousand four hundred nine (1,010,409) have been injured as a consequence of
bombing, shellings, and food blockades undertaken by the military since 1988. 34
It is a bleak picture, and I am disturbed that this Court should express very little concern. I am also
disappointed that it is the portrait of the Court I am soon leaving. Nonetheless, I am hopeful that
despite my departure, it will not be too late.
Motions denied.
G.R. No. 199042
November 17, 2014
DANILO VILLANUEVA y ALCARAZ, Petitioner,

vs.
DECISION
SERENO, CJ:
We resolve the Petition filed by Danilo Villanueva y Alcaraz from the Decision dated 4 May 2011
and Resolution dated 18 October 2011 issued by the Fourteenth Division of the Court of Appeals
(CA) in CA-G.R. C.R. No. 32582.
1
THE ANTECEDENT FACTS

Petitioner Danilo Villanueva was charged with violation of Section 11, Article II of Republic Act (R.A.)
No. 9165 or The Comprehensive Dangerous Drugs Act of 2002. The Information reads:
4
That on or about the 15th day of June 2004 in Caloocan City, Metro Manila, and within the
jurisdiction of this Honorable Court, the above named accused, without being authorized by law, did
then and there, willfully, unlawfully and feloniously have in his possession, custody and control
METHAMPHETAMINE HYDROCHLORIDE (Shabu) weighing 0.63 gram knowing the same to [be a]
dangerous drug under the provisions of the above-cited law.
CONTRARY TO LAW.
On 15 July 2004, the accused, duly assisted by counsel de oficio, pleaded not guilty to the offense
charged.
5
PROSECUTIONS VERSION
Four witnesses testified for the prosecution: (1) Police Senior Inspector (PSI) Albert Arturo, (2) Police
Officer (PO) 3 Jonathan Coralde, (3) PO2 Reynante Mananghaya, and (4) Senior Police Officer 1
(SPO1) Antonio Asiones. Their testimonies reveal that a Complaint was filed by Brian Resco against
Danilo Villanueva for allegedly shooting the former along C-3 Road, Navotas City. After recording the
incident in the police blotter, PO3 Jonathan Coralde, SPO3 Enrique de Jesus, SPO2 Henry Martin
and SPO1 Anthony Asiones, together with Resco, proceeded to the house of Villanueva. They
informed Villanueva about the Complaint lodged against him. They invited him to the police station.
There, he was subjected to a body search and, in the process, a plastic sachet of shabu was
recovered from the left pocket of his pants. PO3 Coralde marked the sachet with the initial "DAV 0615-04", and PO2 Reynante Mananghaya brought it to the National Police District Scene of the Crime
Operatives (NPD-SOCO) for examination. DEFENSES VERSION
6
The accused testified that at the time of the incident, he was at home watching TV when PO3
Coralde, along with three others, invited him to go with them to the police station. Informed that he
had been identified as responsible for shooting Resco, the accused was then frisked and detained at
the police station.
8
RULING OF THE RTC

The Regional Trial Court (RTC) Branch 127 of Caloocan City, in its Decision dated 6 April 2009,
convicted petitioner of the offense charged. The dispositive portion of the Decision reads:
9
WHEREFORE, premises considered, judgment is hereby rendered declaring accused DANILO

VILLANUEVA y ALCARAZ, GUILTY BEYOND REASONABLE DOUBT of the offense of Violation of
Section 11, Article II,R.A. 9165. Henceforth, this Court hereby sentences him to suffer an
imprisonment of twelve (12) years and one (1) day as the minimum to seventeen (17) years and
eight (8) months as the maximum and to pay the fine of Three Hundred Thousand Pesos
(P300,000.00).
The drugs subject matter of this case is ordered confiscated and forfeited in favor of the government
to be dealt with in accordance with the law.
SO ORDERED.
10
The CA reviewed the appeal, which hinged on one issue, viz:

THE COURT A QUOGRAVELY ERRED IN NOT FINDING AS ILLEGAL THE ACCUSEDAPPELLANTS WARRANTLESS ARREST AND SEARCH.
11
RULING OF THE CA
On 4 May 2011, the CA affirmed the ruling of the lower court:
WHEREFORE, the appealed Decision dated April 6, 2009 of the Regional Trial Court, Branch 127,
Caloocan City in Criminal Case No. 70854 finding the accused-appellant guilty beyond reasonable
doubt is hereby AFFIRMED.
SO ORDERED.
12
On 27 May 2011, petitioner filed a Motion for Reconsideration, which the CA denied in a
Resolution dated 18 October 2011.
13
14
Hence, the instant Petition, which revolves around the following lone issue:
WHETHER THE HONORABLE COURT OF APPEALS ERRED IN AFFIRMING THE PETITIONERS
CONVICTION FOR VIOLATION OF SECTION 11 OF REPUBLIC ACT NO. 9165 DESPITE THE
ILLEGALITY OF THE ARREST AND THE LAPSES ON THE PART OF THE POLICE OFFICERS IN
THE HANDLING OF THE CONFISCATED DRUG.
15
Petitioner claims that his arrest does not fall within the purview of valid warrantless arrests, since it
took place on the day of the alleged shooting incident. Hence, to "invite" him to the precinct without
any warrant of arrest was illegal. The evidence obtained is, consequently, inadmissible. The Office of
the Solicitor General filed its Comment stating that the shabu confiscated from petitioner was
admissible in evidence against him; that the search conducted on him was valid; and that he cannot
raise the issue regarding the apprehending officers non-compliance with Section 21, Article II of R.A.
9165 for the first time on appeal.
16
OUR RULING
We find the instant appeal meritorious.
Accused-appellant is estopped from questioning the legality of his arrest.
Accused-appellant was arrested without a warrant. Section 5, Rule 113 of the Revised Rules of
Criminal Procedure, lays down the basic rules on lawful warrantless arrests either by a peace officer
or a private person, as follows:
Sec. 5. Arrest without warrant; when lawful. A peace officer or a private person may, without a
(b) When an offense has just been committed and he has probable cause to believe based
committed it; and
The circumstances that transpired between accused-appellant and the arresting officer show none of
the above that would make the warrantless arrest lawful. Nevertheless, records reveal that accusedappellant never objected to the irregularity of his arrest before his arraignment. He pleaded not guilty
upon arraignment. He actively participated in the trial of the case. Thus, he is considered as one who
had properly and voluntarily submitted himself to the jurisdiction of the trial court and waived his right
to question the validity of his arrest.
17
The warrantless search conducted is not among those allowed by law.

A waiver of an illegal arrest, however, is not a waiver of an illegal search. Records have established
that both the arrest and the search were made without a warrant. While the accused has already
waived his right to contest the legality of his arrest, he is not deemed to have equally waived his right
to contest the legality of the search.
18
Jurisprudence is replete with pronouncements on when a warrantless search can be

conducted. These searches include: (1) search of a moving vehicle; (2) seizure in plain view; (3)
customs search; (4) waiver or consented search; (5) stop-and-frisk situation; (6) search incidental to
a lawful arrest and (7) exigent and emergency circumstance.
1wphi1
19
The search made was not among the enumerated instances. Certainly, it was not of a moving
vehicle, a customs search, or a search incidental to a lawful arrest. There could not have been a
seizure in plain view as the seized item was allegedly found inside the left pocket of accusedappellants pants. Neither was it a stop-and-frisk situation. While thistype may seemingly fall under
the consented search exception, we reiterate that "[c]onsent to a search is not to be lightly inferred,
but shown by clear and convincing evidence."
20
Consent must also be voluntary inorder to validate an otherwise illegal search; that is, the consent
mustbe unequivocal, specific, intelligently given, and uncontaminated by any duress or coercion. In
this case, petitioner was merely "ordered" to take out the contents of his pocket. The testimony of the
police officer on the matter is clear:
21
Q: And what did you do when you frisked a small plastic sachet?
A: When I felt something inside his pocket, I ordered him to bring out the thing which I felt.
Q. : And what did Danilo Villanueva do when you instructed him to bring out the contents of his
pocket?
A: He took out the contents of his pocket and I saw the plastic containing shabu.
22
The evidence obtained is not admissible.

Having been obtained through an unlawful search, the seized item is thus inadmissible in evidence
against accused-appellant. Obviously, this is an instance of seizure of the "fruit of the poisonous
tree." Hence, the confiscated item is inadmissible in evidence consonant with Article III, Section 3(2)
of the 1987 Constitution: "Any evidence obtained in violation of this or the preceding section shall be
inadmissible for any purpose in any proceeding." Without the seized item, therefore, the conviction
23
of accused appellant cannot be sustained. This being the case, we see no more reason to discuss
the alleged lapses of the officers in the handling of the confiscated drug.
As a final word, we reiterate that "[ w ]hile this Court appreciates and encourages the efforts of law
enforcers to uphold the law and to preserve the peace and security of society, we nevertheless
admonish them to act with deliberate care and within the parameters set by the Constitution and
the law. Truly, the end never justifies the means."
24
WHEREFORE, premises considered, the assailed Decision dated 4 May 2011 and Resolution dated
18 October 2011 issued by the Fourteenth Division of the Court of Appeals in CA-G.R. C.R. No.
32582 are SET ASIDE. Petitioner is hereby ACQUITTED.
SO ORDERED.
G.R. No. 191532
August 15, 2012
MARGARITA AMBRE Y CAYUNI, Petitioner,

vs.
PEOPLE OF THE PHILIPPINES Respondent.
PEREZ,*
REYES,**
DECISION
MENDOZA, J.:
This is a petition for review on certiorari seeking to reverse and set aside the November 26, 2009
Decision 1 and the March 9, 2010 Resolution2 of the Court of Appeals (CA) in CA-G.R. CR No.
31957, which affirmed the September 1, 2008 Decision3 of the Regional Trial Court, Branch 123,
Caloocan City, (RTC) in Criminal Case No .. C-73029, finding petitioner Margarita Ambre y
Cayuni (Ambre) guilty beyond reasonable doubt of the crime of violation of Section 15, Article II of
Republic Act (R.A.) No. 9165.
THE FACTS
Two separate Informations were filed against Ambre, and co-accused, Bernie Castro (Castro) and
Kaycee Mendoza (Mendoza), before the RTC charging them with illegal possession of drug
paraphernalia docketed as Criminal Case No. C-73028, and illegal use of methylamphetamine
hydrochloride, otherwise known as shabu, docketed as Criminal Case No. C-73029. The
Informations indicting the accused read:
Criminal Case No. C-73028
That on or about 20th day of April 2005 in Caloocan City, Metro Manila and within the jurisdiction of
this Honorable Court, the above-named accused, without being authorized by law, did then and
there willfully, unlawfully and feloniously have in his possession, custody and control one (1)
unsealed transparent plastic sachet containing traces of white crystalline substance,

(METHYLAMPHETAMINE HYDROCHLORIDE), one (1) rolled aluminum foil strip containing traces
of white crystalline substance, (METHYLAMPHETAMINE HYDROCHLORIDE), one (1) folded
aluminum foil strip containing traces of white crystalline substance, (METHYLAMPHETAMINE
HYDROCHLORIDE) and two (2) disposable plastic lighters, knowing the same are paraphernalias
instruments apparatus fit or intended for smoking, consuming, administering, ingesting or introducing
dangerous drug (METHYLAMPHETAMINE HYDROCHLORIDE) into the body.
Contrary to law.4
Criminal Case No. C-73029
That on or about the 20th of April 2005 in Caloocan City, Metro Manila and within the jurisdiction of
this Honorable Court, the above-named accused, conspiring together and mutually helping with one
another, without being authorized by law, did then and there willfully, unlawfully and feloniously use
and sniff Methylamphetamine Hydrochloride (Shabu), knowing the same to be a dangerous drug
under the provisions of the above-cited law.
Contrary to law.5
When arraigned, Castro and Mendoza pleaded guilty to both charges. Consequently, they were
meted the penalty of imprisonment of six (6) months and one (1) day to one (1) year and eight (8)
months and a fine of P25,000.00 in Criminal Case No. C-73028. For their conviction in Criminal
Case No. C-73029, the RTC ordered their confinement at the Center for the Ultimate Rehabilitation
of Drug Dependents (CUREDD) for a period of six (6) months.6
Ambre, on the other hand, entered a plea of not guilty to the charges. 7 Trial on the merits ensued.
The Version of the Prosecution
From the testimonies of prosecution witnesses PO3 Fernando Moran (PO3 Moran), PO1 Ronald
Allan Mateo(PO1 Mateo), PO2 Randulfo Hipolito (PO2 Hipolito), and P/Insp. Jessie dela Rosa
(P/Insp. dela Rosa), it appeared that on April 20, 2005, the Caloocan Police Station Anti-Illegal DrugSpecial Operation Unit conducted a buy-bust operation pursuant to a tip from a police informant that
a certain Abdulah Sultan (Sultan) and his wife Ina Aderp (Aderp) were engaged in the selling of
dangerous drugs at a residential compound in Caloocan City; that the buy-bust operation resulted in
the arrest of Aderp and a certain Moctar Tagoranao (Tagoranao); that Sultan ran away from the
scene of the entrapment operation and PO3 Moran, PO2 Masi and PO1 Mateo, pursued him; that in
the course of the chase, Sultan led the said police officers to his house; that inside the house, the
police operatives found Ambre, Castro and Mendoza having a pot session; that Ambre, in particular,
was caught sniffing what was suspected to be shabu in a rolled up aluminum foil; and that PO3
Moran ran after Sultan while PO2 Masi and PO1 Mateo arrested Ambre, Castro and Mendoza for
illegal use of shabu.
The items confiscated from the three were marked and, thereafter, submitted for laboratory
examination. Physical Science Report No. DT-041-05 to DT-043-05 stated that the urine samples
taken from Ambre and her coaccused were positive for the presence of shabu while Physical
Science Report No. D-149-05 showed that the items seized from them were all found positive for
traces of shabu.8
The Version of the Defense

Ambre vehemently denied the charges against her. Through the testimonies of Ambre, Mendoza and
Lily Rosete(Rosete), the defense claimed that on the afternoon of April 20, 2005, Ambre was inside
the residential compound in Caloocan to buy malong; that her mother asked Rosete to accompany
her because Rosetes daughter-in-law, Nancy Buban (Buban), was a resident of Phase 12, Caloocan
City, an area inhabited by Muslims; that when they failed to buy malong, Rosete and Buban left her
inside the residential compound to look for other vendors; that ten minutes later, the policemen
barged inside the compound and arrested her; that she was detained at the Caloocan City Jail
where she met Castro, Mendoza and Tagoranao; and that she was not brought to the Philippine
National Police (PNP) Crime Laboratory for drug testing.
Rosete further testified that after she had left Ambre inside the compound to find other malong
vendors, she returned fifteen minutes later and learned that the policemen had arrested people
inside the compound including Ambre.
Mendoza, who was convicted in Criminal Case No. C-73029, claimed that no pot session took place
on the afternoon of April 20, 2005. She averred that she and Ambre were merely inside the
residential compound, when policemen suddenly came in and pointed guns at them. 9
The Ruling of the Regional Trial Court
On September 1, 2008, the RTC rendered its decision declaring that the prosecution was able to
establish with certitude the guilt of Ambre for illegal use of methylamphetamine hydrochloride or
violation of Section 15, Article II of R.A. No. 9165. The RTC, however, acquitted her of the crime of
violation of Section 12, Article II of R.A. No. 9165 for failure of the prosecution to prove with
particularity the drug paraphernalia found in her possession. The trial court adjudged:
WHEREFORE, premises considered, judgment is hereby rendered as follows:
1) In Crim. Case No. C- 73028, finding accused MARGARITA AMBRE Y CAYUNI not guilty of the
crime of Violation of Section 12, Article II, RA 9165;
2)In Crim. Case No. C-73029, finding accused MARGARITA AMBRE Y CAYUNI guilty beyond
reasonable doubt of the crime of Violation of Sec. 15, Art. II RA 9165 and hereby sentences her to
be confined and rehabilitated at the government rehabilitation center in Bicutan, Taguig, Metro
Manila for a period of six (6) months. The six (6) month period of rehabilitation shall commence only
from the time that she is brought inside the rehabilitation center and its promulgation by this court for
which the accused shall be notified.
The shabu subject of these cases is hereby confiscated in favor of the government to be disposed of
in accordance with the rules governing the same.
Costs against the accused.
SO ORDERED.10
The Decision of the Court of Appeals
Undaunted, Ambre appealed the judgment of conviction before the CA professing her innocence of
the crime. On November 26, 2009, the CA rendered the assailed decision, the dispositive portion of
which reads:
WHEREFORE, premises considered, the appeal is hereby DENIED. The Decision dated September
1, 2008 of the Regional Trial Court, Branch 123, Caloocan City is AFFIRMED.
SO ORDERED.11
Ambre's motion for reconsideration was denied by the CA in its March 9, 2010 Resolution. Hence,
she filed this petition
THE ISSUES
Ambre raised the following issues:
1. WHETHER OR NOT THE ARREST OF AND THE SEARCH DONE AGAINST THE PETITIONER
ON APRIL 20, 2005 (THAT YIELDED ALLEGED DRUG PARAPHERNALIA) CONFORMED WITH
THE MANDATED LEGAL PROCEDURES IN CONDUCTING A BUY-BUST OPERATION.
2. WHETHER OR NOT THE ARREST OF AND THE SEARCH DONE AGAINST THE PETITIONER
WERE PART AND PARCEL OF THE DISMISSED AND DISCREDITED BUY-BUST OPERATIONS
OF THE POLICE AND/OR "FRUITS OF THE POISONOUS TREE" AND HENCE, WERE ILLEGAL.
3. WHETHER OR NOT THE PROSECUTION'S EVIDENCE THAT WERE SEIZED DURING THE
ILLEGAL BUY-BUST OPERATION ARE ADMISSIBLE AS EVIDENCE.
4. WHETHER OR NOT THE EXCLUSION OR DISREGARD OF THE FAVORABLE TESTIMONY OF
PETITIONER'S WITNESS, HER CO-ACCUSED, KAYCEE MENDOZA, ON THE GROUND THAT
THE LATTER EARLIER PLED GUILTY TO SUCH ILLEGAL USE, HAD VIOLATED THE RULE ON
INTER ALIOS ACTA UNDER SECTION 26, RULE 130 OF THE RULES OF COURT.
5. WHETHER OR NOT THE PETITIONER'S PENALTY OF SIX (6) MONTHS REHABILITATION IN
A GOVERNMENT CENTER IS A NULLITY GIVEN THE LACK OF CONFIRMATORY TEST AS
REQUIRED UNDER R.A. 9165 ("COMPREHENSIVE DANGEROUS DRUGS ACT OF 2002"). 12
A perusal of the pleadings filed by the parties leads the Court to conclude that the case revolves on
the following core issues:
1.) Whether the warrantless arrest of Ambre and the search of her person was valid; and
2.) Whether the items seized are inadmissible in evidence.
Essentially, Ambre insists that the warrantless arrest and search made against her were illegal
because no offense was being committed at the time and the police operatives were not authorized
by a judicial order to enter the dwelling of Sultan. She argues that the alleged "hot pursuit" on Sultan
which ended in the latter's house, where she, Mendoza and Castro were supposedly found having a
pot session, was more imaginary than real. In this regard, Ambre cites the April 29, 2005 Resolution
of the Prosecutor's Office of Caloocan City dismissing the case against Aderp and Sultan for
insufficiency of evidence because the April 20, 2005 buy-bust operation was highly suspicious and
doubtful. She posits that the items allegedly seized from her were inadmissible in evidence being
fruits of a poisonous tree. She claims that the omission of the apprehending team to observe the
procedure outlined in R.A. No. 9165 for the seizure of evidence in drugs cases significantly impairs
the prosecutions case. Lastly, Ambre maintains that she was not subjected to a confirmatory test
and, hence, the imposition of the penalty of six months rehabilitation was not justified.
For the State, the Office of the Solicitor General (OSG) urges this Court to affirm the challenged
decision for failure of Ambre to show that the RTC committed any error in convicting her of illegal use
of shabu. The OSG insists that Ambre was lawfully arrested in accordance with Section 5, Rule 113
of the Rules of Court. It is of the opinion that the credible and compelling evidence of the prosecution
could not be displaced by the empty denial offered by Ambre.
THE COURT'S RULING
The conviction of Ambre stands.
Section 2, Article III13 of the Constitution mandates that a search and seizure must be carried out
through or on the strength of a judicial warrant predicated upon the existence of probable cause,
absent which such search and seizure becomes "unreasonable" within the meaning of said
constitutional provision. Evidence obtained and confiscated on the occasion of such an
unreasonable search and seizure is tainted and should be excluded for being the proverbial fruit of a
poisonous tree. In the language of the fundamental law, it shall be inadmissible in evidence for any
purpose in any proceeding.14
This exclusionary rule is not, however, an absolute and rigid proscription. One of the recognized
exception established by jurisprudence is search incident to a lawful arrest. 15 In this exception, the
law requires that a lawful arrest must precede the search of a person and his belongings. As a rule,
an arrest is considered legitimate if effected with a valid warrant of arrest. Section 5, Rule 113 of the
Rules of Criminal Procedure, however, recognizes permissible warrantless arrests:
"Sec. 5. Arrest without warrant; when lawful. - A peace officer or a private person may, without a
(b) When an offense has in fact just been committed, and he has personal knowledge of facts
indicating that the person to be arrested has committed it; and
(c) When the person to be arrested is a prisoner who escaped from a penal establishment or place
where he is serving final judgment or temporarily confined while his case is pending, or has escaped
while being transferred from one confinement to another. (Emphasis supplied)
Section 5, above, provides three (3) instances when warrantless arrest may be lawfully effected: (a)
arrest of a suspect in flagrante delicto; (b) arrest of a suspect where, based on personal knowledge
of the arresting officer, there is probable cause that said suspect was the perpetrator of a crime
which had just been committed; (c) arrest of a prisoner who has escaped from custody serving final
judgment or temporarily confined during the pendency of his case or has escaped while being
transferred from one confinement to another.
In arrest in flagrante delicto, the accused is apprehended at the very moment he is committing or
attempting to commit or has just committed an offense in the presence of the arresting officer.
Clearly, 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 or within the view
of the arresting officer.16
In the case at bench, there is no gainsaying that Ambre was caught by the police officers in the act
of using shabu and, thus, can be lawfully arrested without a warrant. PO1 Mateo positively identified
Ambre sniffing suspected shabu from an aluminum foil being held by Castro. 17 Ambre, however,
made much of the fact that there was no prior valid intrusion in the residence of Sultan. The
argument is specious.
Suffice it to state that prior justification for intrusion or prior lawful intrusion is not an element of an
arrest in flagrante delicto. Thus, even granting arguendo that the apprehending officers had no legal
right to be present in the dwelling of Sultan, it would not render unlawful the arrest of Ambre, who
was seen sniffing shabu with Castro and Mendoza in a pot session by the police officers.
Accordingly, PO2 Masi and PO1 Mateo were not only authorized but were also duty-bound to arrest
Ambre together with Castro and Mendoza for illegal use of methamphetamine hydrochloride in
violation of Section 15, Article II of R.A. No. 9165.
To write finis to the issue of validity and irregularity in her warrantless arrest, the Court holds that
Ambre is deemed to have waived her objections to her arrest for not raising them before entering her
plea.18
Considering that the warrantless arrest of Ambre was valid, the subsequent search and seizure done
on her person was likewise lawful. After all, a legitimate warrantless arrest necessarily cloaks the
arresting police officer with authority to validly search and seize from the offender (1) dangerous
weapons, and (2) those that may be used as proof of the commission of an offense. 19
Further, the physical evidence corroborates the testimonies of the prosecution witnesses that Ambre,
together with Castro and Mendoza, were illegally using shabu. The urine samples taken from them
were found positive for the presence of shabu, as indicated in Physical Science Report No. DT-04105 to DT-043-05. It was likewise found that the items seized from the three were all positive for
traces of shabu as contained in Physical Science Report No. D-149-05 dated April 21, 2005. These
findings were unrebutted.
Ambre's assertion that her conviction was incorrect, because the evidence against her was obtained
in violation of the procedure laid down in R.A. No. 9165, is untenable.
While ideally the procedure on the chain of custody should be perfect and unbroken, in reality, it is
not as it is almost always impossible to obtain an unbroken chain. 20 This Court, however, has
consistently held that the most important factor is the preservation of the integrity and evidentiary
value of the seized items.21 In this case, the prosecution was able to demonstrate that the integrity
and evidentiary value of the confiscated drug paraphernalia had not been compromised. Hence,
even though the prosecution failed to submit in evidence the physical inventory and photograph of
the drug paraphernalia with traces of shabu, this will not render Ambre's arrest illegal or the items
seized from her inadmissible.
Records bear out that after the arrest of Ambre with Castro and Mendoza, the following items were
confiscated from them: one (1) unsealed sachet with traces of suspected shabu; one (1) strip of
rolled up aluminum foil with traces of suspected shabu; one (1) folded piece of aluminum foil with
traces of white crystalline substance also believed to be shabu; and two (2) yellow disposable
lighters. Upon arrival at the police station, PO3 Moran turned over the seized items to PO2 Hipolito
who immediately marked them in the presence of the former. All the pieces of evidence were placed
inside an improvised envelope marked as "SAID-SOU EVIDENCE 04-20-05." With the Request for
Laboratory Examination, PO2 Hipolito brought the confiscated items to the PNP Crime Laboratory
and delivered them to P/Insp. dela Rosa, a forensic chemist, who found all the items, except the
disposable lighters, positive for traces of shabu. Verily, the prosecution had adduced ample evidence
to account for the crucial links in the chain of custody of the seized items.
Even if the Court strikes down the seized drug paraphernalia with traces of shabu as inadmissible,
Ambre will not be exculpated from criminal liability. First, let it be underscored that proof of the
existence and possession by the accused of drug paraphernalia is not a condition sine qua non for
conviction of illegal use of dangerous drugs. The law merely considers possession of drug
paraphernalia as prima facie evidence that the possessor has smoked, ingested or used a
dangerous drug and creates a presumption that he has violated Section 15 of R.A. No. 9165. 22
Secondly, the testimonies of the police officers have adequately established with moral certainty the
commission of the crime charged in the information and the identity of Ambre as the perpetrator. At
this juncture, the Court affirms the RTC's finding that the police officers' testimonies deserve full faith
and credit. Appellate courts, generally, will not disturb the trial court's assessment of a witness'
credibility unless certain material facts and circumstances have been overlooked or arbitrarily
disregarded.23 The Court finds no reason to deviate from this rule in this case.
Likewise, the Court upholds the presumption of regularity in the performance of official duties. The
presumption remains because the defense failed to present clear and convincing evidence that the
police officers did not properly perform their duty or that they were inspired by an improper motive.
The presumption was not overcome as there was no showing that PO3 Moran, PO1 Mateo, PO2
Hipolito, and P/Insp. dela Rosa were impelled with improper motive to falsely impute such offense
against Ambre.
As against the positive testimonies of the prosecution witnesses, the defense of denial offered by
Ambre must simply fail. Bare denials cannot prevail over positive identification made by the
prosecution witnesses.24 Besides, this Court has held in a catena of cases that the defense of denial
or frame-up has been viewed with disfavor for it can just as easily be concocted and is a common
and standard ploy in most prosecutions for violation of the Dangerous Drugs Act. 25
Finally, Ambre contends that the penalty of six months of rehabilitation in a government center
imposed on her was a nullity, in view of the alleged lack of confirmatory test. The Court is not
persuaded.
It must be emphasized that in no instance did Ambre challenge, at the RTC, the supposed absence
of confirmatory drug test conducted on her. Ambre only questioned the alleged omission when she
appealed her conviction before the CA. It was too late in the day for her to do so. Wellentrenched is
the rule that litigants cannot raise an issue for the first time on appeal as this would contravene the
basic rules of fair play and justice.26
WHEREFORE, the petition is DENIED. The assailed November 26, 2009 Decision and the March 9,
2010 Resolution of the Court of Appeals in CA-G.R. CR No. 31957 are hereby AFFIRMED.
SO ORDERED.
G.R. No. 205926
July 22, 2015
ALVIN COMERCIANTE y GONZALES, Petitioner,

vs.
DECISION
PERLAS-BERNABE, J.:
Assailed in this petition for review on certiorari are the Decision dated October 20, 2011 and the
Resolution dated February 19, 2013 of the Court of Appeals (CA) in CA-G.R. CR No. 32813, which
affirmed in toto the Judgment dated July 28, 2009 of the Regional Trial Court of Mandaluyong City,
Branch 213 (RTC) in Crim. Case No. MC-03-7242-D convicting petitioner Alvin Comerciante y
Gonzales (Comerciante) of the crime of illegal Possession of Dangerous Drugs defined and
penalized under Section 11, Article II of Republic Act No. (RA) 9165, otherwise known as the
Comprehensive Dangerous Drugs Act of 2002.
1
The Facts
On July 31, 2003, an Information was filed before the RTC charging Comerciante of violation of
Section 11, Article II of RA 9165, to wit:
That on or about the 30th day of July 2003, in the City of Mandaluyong, Philippines, a place within the
jurisdiction of this Honorable Court, the above-named accused, not having been lawfully authorized
to possess any dangerous drugs, did then and there willfully, unlawfully and feloniously and
knowingly have in his possession, custody and control Two (2) heat-sealed transparent plastic
sachet (sic) each containing 0.15 gram (sic) and 0.28 gram (sic) of white crystalline substance with a
total of 0.43 grams which was found positive to the test for Methamphetamine Hydrochloride
commonly known as "shabu", a dangerous drug.
CONTRARY TO LA W.
According to the prosecution, at around 10 o'clock in the evening of July 30, 2003, Agent Eduardo
Radan (Agent Radan) of the NARCOTICS group and P03 Bienvy Calag II (P03 Calag) were aboard
a motorcycle, patrolling the area while on their way to visit a friend at Private Road, Barangay Hulo,
Mandaluyong City. Cruising at a speed of 30 kilometers per hour along Private Road, they spotted,
at a distance of about 10 meters, two (2) men - later identified as Comerciante and a certain Erick
Dasilla (Dasilla) - standing and showing "improper and unpleasant movements," with one of them
handing plastic sachets to the other. Thinking that the sachets may contain shabu, they immediately
7
stopped and approached Comerciante and Dasilla At a distance of around five (5) meters, P03
Calag introduced himself as a police officer, arrested Comerciante and Dasilla, and confiscated two
(2) plastic sachets containing white crystalline substance from them. A laboratory examination later
confirmed that said sachets contained methamphetamine hydrochloride or shabu.
8
After the prosecution rested its case, Dasilla filed a demurrer to evidence, which was granted by the
RTC, thus his acquittal. However, due to Comerciante's failure to file his own demurrer to evidence,
the RTC considered his right to do so waived and ordered him to present his evidence.
9
In his defense, Comerciante averred that P03 Calag was looking for a certain "Barok", who was a
notorious drug pusher in the area, when suddenly, he and Dasilla, who were just standing in front of
a jeepney along Private Road, were arrested and taken to a police station. There, the police officers
claimed to have confiscated illegal drugs from them and were asked money in exchange for their
release. When they failed to accede to the demand, they were brought to another police station to
undergo inquest proceedings, and thereafter, were charged with illegal possession of dangerous
drugs.
10
The RTC Ruling

In. a Judgment dated July 28, 2009, the RTC found Comerciante guilty beyond reasonable doubt
of violation of Section 11, Article II of RA 9165, and accordingly, sentenced him to suffer the penalty
of imprisonment for twelve (12) years and one (1) day to twenty (20) years, and ordered him to pay a
fine in the amount of P300,000.00.
11
12
The R TC found that P03 Calag conducted a valid warrantless arrest on Comerciante, which yielded
two (2) plastic sachets containing shabu. In this relation, the R TC opined that there was probable
cause to justify the warrantless arrest, considering that P03 Calag saw, in plain view, that
Comerciante was carrying the said sachets when he decided to approach and apprehend the latter.
Further, the RTC found that absent any proof of intent that P03 Calag was impelled by any malicious
motive, he must be presumed to have properly performed his duty when he arrested Comerciante.
13
Aggrieved, Comerciante appealed to the CA.

The CA Ruling
In a Decision dated October 20, 2011 the CA affirmed Comerciante's conviction. It held that P03
Calag had probable cause to effect the warrantless arrest of Comerciante, given that the latter was
committing a crime in flagrante delicto; and that he personally saw the latter exchanging plastic
sachets with Dasilla. According to the CA, this was enough to draw a reasonable suspicion that
those sachets might be shabu, and thus, P03 Calag had every reason to inquire on the matter right
then and there.
14
15
Dissatisfied, Comerciante moved for reconsideration which was, however, denied in a

Resolution dated February 19, 2013. Hence, this petition.
16
17
18
The Issue before the Court
The core issue for the Court's resolution is whether or not the CA correctly affirmed Comerciante's
conviction for violation of Section 11, Article II of RA 9165.
In his petition, Comerciante essentially contends that P03 Carag did not effect a valid warrantless
arrest on him. Consequently, the evidence gathered as a result of such illegal warrantless arrest, i.e.,
the plastic sachets containing shabu should be rendered inadmissible, necessarily resulting in his
acquittal.
19
On the other hand, the Office of the Solicitor General, on behalf of respondent People of the
Philippines, maintains that Comerciante's warrantless arrest was validly made pursuant to the "stop
and frisk" rule, especially considering that he was caught in flagrante delicto in possession of illegal
drugs.
20
The Court's Ruling

The petition is meritorious.
Section 2, Article III of the Constitution mandates that a search and seizure must be carried out
through or on the strength of a judicial warrant predicated upon the existence of probable cause; in
the absence of such warrant, such search and seizure becomes, as a general rule, "unreasonable"
within the meaning of said constitutional provision. To protect people from unreasonable searches
and seizures, Section 3 (2), Article III of the Constitution provides an exclusionary rule which
instructs that evidence obtained and confiscated on the occasion of such unreasonable searches
and seizures are deemed tainted and should be excluded for being the proverbial fruit of a
poisonous tree. In other words, evidence obtained from unreasonable searches and seizures shall
be inadmissible in evidence for any purpose in any proceeding.
21
22
23
The exclusionary rule is not, however, an absolute and rigid proscription. One of the recognized
exceptions established by jurisprudence is a search incident to a lawful arrest. In this instance, the
law requires that there first be a lawful arrest before a search can be made - the process cannot be
reversed. Section 5, Rule 113 of the Revised Rules on Criminal Procedure lays down the rules on
lawful warrantless arrests, as follows:
24
25
SEC.5. Arrest without warrant; when lawful. - A peace officer or a private person may, without a
committed it; and
In cases falling under paragraphs (a) and (b) above, the person arrested without a warrant shall be
forthwith delivered to the nearest police station or jail and shall be proceeded against in accordance
with Section 7 of Rule 112.
The aforementioned provision provides three (3) instances when a warrantless arrest may be
lawfully effected: (a) arrest of a suspect in flagrante delicto; (b) arrest of a suspect where, based on
personal knowledge of the arresting officer, there is probable cause that said suspect was the
perpetrator of a crime which had just been committed; ( c) arrest of a prisoner who has escaped
from custody serving final judgment or temporarily confined during the pendency of his case or has
escaped while being transferred from one confinement to another.
26
For a warrantless arrest under Section 5 (a) to operate, two (2) elements must concur, namely: (a)
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 ( b) such overt act is done in the presence or
within the view of the arresting officer. On the other hand, Section 5 (b) requires for its application
that at the time of the arrest, an offense had in fact just been committed and the arresting officer had
personal knowledge of facts indicating that the accused had committed it.
27
28
In both instances, the officer's personal knowledge of the fact of the commission of an offense is
absolutely required. Under Section 5 (a), the officer himself witnesses the crime; while in Section (b),
he knows for a fact that a crime has just been committed.
29
A judicious review of the factual milieu of the instant case reveals that there could have been no
lawful warrantless arrest made on Comerciante. P03 Calag himself admitted that he was aboard a
motorcycle cruising at a speed of around 30 kilometers per hour when he saw Comerciante and
Dasilla standing around and showing "improper and unpleasant movements," with one of them
handing plastic sachets to the other. On the basis of the foregoing, he decided to effect an arrest.
P03 Calag's testimony on direct examination is revelatory:
Pros. Silao:
Q: Now on July 30, 2003 around 10:00 o'clock in the evening, kindly tell the court where were you?
A: We were then conducting our patrol on a motorbike ma' am.
xxxx
Q: And who were with you while you were patrolling?
A: Eduardo Radan, Ma' am.
Q: And who is this Eduardo Radan?
A: He is an agent of the Narcotics Group, ma'am.
Q: While you were along Private Road, Hulo, Mandaluyong City, what unusual incident that
happened if any?
A: We spotted somebody who was then as if handing a plastic sachet to someone.

xxxx
Q: Now how far were you when you saw this incident from these two male persons you already
identified?
A: About ten (10) meters away ma'am.
Q: What were their positions in relation to you when you saw them in that particular act?
A: They were quite facing me then.
0: What was the speed of your motorcycle when you were traversing this Private Road, Hulo,
Mandaluyong City?
A: About thirty (30) kilometers per hour, ma'am.
Q: And who was driving the motorcycle?
A: Eduardo Radan, ma'am.
Q: When you spotted them as if handing something to each other, what did you do?
A: We stopped ma'am.
Q: And how far were you from them when you stopped, more or less?
A: We passed by them for a short distance before we stopped ma'am.
Q: And after you passed by them and you said you stopped, what was the reaction of these two
male persons?
A: They were surprised, ma'am.
xxxx
Q: And what was their reaction when you said you introduced yourself as police officer?
A: They were surprised.
Q: When you say "nabigla" what was their reaction that made you say that they were surprised?
A: They were stunned.
Q: After they were stunned, what did you do next, police officer?
A: I arrested them, ma' am. I invited them.
Q: What did you say to them? How did you invite them? In short, napakasimple Lang ng tanong ko
sa yo eh. Did you say anything?
Court:
Mr. Witness, stop making unnecessary movements, just listens.
Pros. Silao: Are you fit to testify? May sakit ka ba o wala? Witness: Wala po.
Pros. Silao: Eh, bakit di ka makapagsalita?
Court: You keep touching your eyes. Just relax. Answer the question, ano sinabi mo sa kanila?
Pros. Silao: Are you fit to testify? Wala ka bang sakit?
Witness: Wala po.
xxxx
Q: From what portion of his body, I am referring to Alvin Comerciante did you recover the plastic
sachet?
A: From his hand ma'am.
Q: Left or right hand?
Pros. Silao: You cannot recall? Hindi mo matandaan. Sabihin mo Kung Hindi mo matandaan, no
problem. Kaliwa, kanan or you cannot recall?
30
(Emphases and underscoring supplied)

On the basis of such testimony, the Court finds it highly implausible that P03 Calag, even assuming
that he has perfect vision, would be able to identify with reasonable accuracy - especially from a
distance of around 10 meters, and while aboard a motorcycle cruising at a speed of 30 kilometers
per hour - miniscule amounts of white crystalline substance inside two (2) very small plastic sachets
held by Comerciante. The Court also notes that no other overt act could be properly attributed to
Comerciante as to rouse suspicion in the mind of P03 Calag that the former had just committed, was
committing, or was about to commit a crime. Verily, the acts of standing around with a companion
and handing over something to the latter cannot in any way be considered criminal acts. In fact,
even if Comerciante and his companion were showing "improper and unpleasant movements" as put
by P03 Calag, the same would not have been sufficient in order to effect a lawful warrantless arrest
under Section 5 (a), Rule 113 of the Revised Rules on Criminal Procedure. That his reasonable
suspicion bolstered by (a) the fact that he had seen his fellow officers arrest persons in possession
of shabu; and (b) his trainings and seminars on illegal drugs when he was still assigned in the
province are insufficient to create a conclusion that what he purportedly saw in Comerciante was
indeed shabu.
31
32
Neither has the prosecution established that the rigorous conditions set forth in Section 5 (b), Rule
113, have been complied with, i.e., that an offense had in fact just been committed and the arresting
officer had personal knowledge of facts indicating that the accused had committed it. As already
discussed, the factual backdrop of the instant case failed to show that P03 Calag had personal
knowledge that a crime had been indisputably committed by Comerciante. Verily, it is not enough
that the arresting officer had reasonable ground to believe that the accused had just committed a
crime; a crime must, in fact, have been committed first, which does not obtain in this case.
33
In this relation, the Court finds respondent's assertion that there was a valid "stop and frisk" search
made on Comerciante untenable. In People v. Cogaed, the Court had an opportunity to
exhaustively explain "stop and frisk" searches:
34
"Stop and frisk" searches (sometimes referred to as Terry searches) are necessary for law
enforcement. That is, law enforcers should be given the legal arsenal to prevent the commission of
offenses. However, this should be balanced with the need to protect the privacy of citizens in
accordance with Article III, Section 2 of the Constitution.
1a\^/phi1
The balance lies in the concept of "suspiciousness" present where the police officer finds himself or
herself in. This may be undoubtedly based on the experience of the police officer. Experienced
police officers have personal experience dealing with criminals and criminal behavior. Hence, they
should have the ability to discern - based on facts that they themselves observe - whether an
individual is acting in a suspicious manner. Clearly, a basic criterion would be that the police officer,
with his or her personal knowledge, must observe the facts leading to the suspicion of an illicit act.
xxxx
Normally, "stop and frisk" searches do not give the law enforcer an opportunity to confer with a judge
to determine probable cause. In Posadas v. Court of Appeals, one of the earliest cases adopting the
"stop and frisk" doctrine in Philippine jurisprudence, this court approximated the suspicious
circumstances as probable cause:
The probable cause is that when the petitioner acted suspiciously and attempted to flee with the buri
bag there was a probable cause that he was concealing something illegal in the bag and it was the
right and duty of the police officers to inspect the same.
For warrantless searches, probable cause was defined as "a reasonable ground of suspicion
that the person accused is guilty of the offense with which he is charged.
Malacat v. Court of Appeals clarifies the requirement further. It does not have to be probable cause,
but it cannot be mere suspicion. It has to be a genuine reason to serve the purposes of the "stop and
frisk" exception:
Other notable points of Terry are that while probable cause is not required to conduct a "stop and
frisk," it nevertheless holds that mere suspicion or a hunch will not validate a "stop and frisk." A
genuine reason must exist, in light of the police officer's experience and surrounding conditions, to
warrant the belief that the person detained has weapons concealed about him.
In his dissent for Esquillo v. People, Justice Bersamin reminds us that police officers must not rely on
a single suspicious circumstance. There should be "presence of more than one seemingly innocent
activity, which, taken together, warranted a reasonable inference of criminal activity." The
Constitution prohibits "umeasonable searches and seizures." Certainly, reliance on only one
suspicious circumstance or none at all will not result in a reasonable search. [35]] (Emphases and
underscoring supplied)
In this case, the Court reiterates that Comerciante' s acts of standing around with a companion and
handing over something to the latter do not constitute criminal acts. These circumstances are not
enough to create a reasonable inference of criminal activity which would constitute a "genuine
reason" for P03 Calag to conduct a "stop and frisk" search on the former. In this light, the "stop and
frisk" search made on Comerciante should be deemed unlawful.
1wphi1
In sum, there was neither a valid warrantless arrest nor a valid "stop and frisk" search made on
Comerciante. As such, the shabu purportedly seized from him is rendered inadmissible in evidence
for being the proverbial fruit of the poisonous tree. Since the confiscated shabu is the very corpus
delicti of the crime charged, Comerciante must necessarily be acquitted and exonerated from all
criminal liability.
WHEREFORE, the petition is GRANTED. Accordingly, 'the Decision dated October 20, 2011 and the
Resolution dated February 19, 2013 of the Court of Appeals in CA-G.R. CR No. 32813 are hereby
REVERSED and SET ASIDE. Accordingly, petitioner Alvin Comerciante y Gonzales is hereby
ACQUITTED of the crime of violating Section 11, Article II of Republic Act No. 9165. The Director of
the Bureau of Corrections is ordered to cause his immediate release, unless he is being lawfully held
for any other reason.
SO ORDERED.
G.R. No. 101837 February 11, 1992

ROLITO GO y TAMBUNTING, petitioner,
vs.
THE COURT OF APPEALS, THE HON. BENJAMIN V. PELAYO, Presiding Judge, Branch 168,
Regional Trial Court, NCJR Pasig, M.M., and PEOPLE OF THE PHILIPPINES, respondents.
FELICIANO, J.:
According to the findings of the San Juan Police in their Investigation Report, 1 on 2 July 1991, Eldon
Maguan was driving his car along Wilson St., San Juan, Metro Manila, heading towards P. Guevarra St.
Petitioner entered Wilson St., where it is a one-way street and started travelling in the opposite or "wrong"
direction. At the corner of Wilson and J. Abad Santos Sts., petitioner's and Maguan's cars nearly bumped
each other. Petitioner alighted from his car, walked over and shot Maguan inside his car. Petitioner then
boarded his car and left the scene. A security guard at a nearby restaurant was able to take down
petitioner's car plate number. The police arrived shortly thereafter at the scene of the shooting and there
retrieved an empty shell and one round of live ammunition for a 9 mm caliber pistol. Verification at the
Land Transportation Office showed that the car was registered to one Elsa Ang Go.
The following day, the police returned to the scene of the shooting to find out where the suspect had
come from; they were informed that petitioner had dined at Cravings Bake Shop shortly before the
shooting. The police obtained a facsimile or impression of the credit card used by petitioner from the
cashier of the bake shop. The security guard of the bake shop was shown a picture of petitioner and
he positively identified him as the same person who had shot Maguan. Having established that the
assailant was probably the petitioner, the police launched a manhunt for petitioner.
On 8 July 1991, petitioner presented himself before the San Juan Police Station to verify news
reports that he was being hunted by the police; he was accompanied by two (2) lawyers. The police
forthwith detained him. An eyewitness to the shooting, who was at the police station at that time,
positively identified petitioner as the gunman. That same day, the police promptly filed a complaint
for frustrated homicide 2 against petitioner with the Office of the Provincial Prosecutor of Rizal. First
Assistant Provincial Prosecutor Dennis Villa Ignacio ("Prosecutor") informed petitioner, in the presence of
his lawyers, that he could avail himself of his right to preliminary investigation but that he must first sign a
waiver of the provisions of Article 125 of the Revised Penal Code. Petitioner refused to execute any such
waiver.
On 9 July 1991, while the complaint was still with the Prosecutor, and before an information could be
filed in court, the victim, Eldon Maguan, died of his gunshot wound(s).
Accordingly, on 11 July 1991, the Prosecutor, instead of filing an information for frustrated homicide,
filed an information for murder 3 before the Regional Trial Court. No bail was recommended. At the
bottom of the information, the Prosecutor certified that no preliminary investigation had been conducted
because the accused did not execute and sign a waiver of the provisions of Article 125 of the Revised
Penal Code.
In the afternoon of the same day, 11 July 1991, counsel for petitioner filed with the Prosecutor an
omnibus motion for immediate release and proper preliminary investigation, 4 alleging that the
warrantless arrest of petitioner was unlawful and that no preliminary investigation had been conducted
before the information was filed. Petitioner also prayed that he be released on recognizance or on bail.
Provincial Prosecutor Mauro Castro, acting on the omnibus motion, wrote on the last page of the motion
itself that he interposed no objection to petitioner being granted provisional liberty on a cash bond of
P100,000.00.
On 12 July 1991, petitioner filed an urgent ex-parte motion for special raffle 5 in order to expedite
action on the Prosecutor's bail recommendation. The case was raffled to the sala of respondent Judge,
who, on the same date, approved the cash bond 6 posted by petitioner and ordered his
release. 7 Petitioner was in fact released that same day.
On 16 July 1991, the Prosecutor filed with the Regional Trial Court a motion for leave to conduct
preliminary investigation 8 and prayed that in the meantime all proceedings in the court be suspended.
He stated that petitioner had filed before the Office of the Provincial Prosecutor of Rizal an omnibus
motion for immediate release and preliminary investigation, which motion had been granted by Provincial
Prosecutor Mauro Castro, who also agreed to recommend cash bail of P100,000.00. The Prosecutor
attached to the motion for leave a copy of petitioner's omnibus motion of 11 July 1991.
Also on 16 July 1991, the trial court issued an Order 9 granting leave to conduct preliminary
investigation and cancelling the arraignment set for 15 August 1991 until after the prosecution shall have
concluded its preliminary investigation.
On 17 July 1991, however, respondent Judge motu proprio issued an Order, 10 embodying the
following: (1) the 12 July 1991 Order which granted bail was recalled; petitioner was given 48 hours from
receipt of the Order to surrender himself; (2) the 16 July 1991 Order which granted leave to the
prosecutor to conduct preliminary investigation was recalled and cancelled; (3) petitioner's omnibus
motion for immediate release and preliminary investigation dated 11 July 1991 was treated as a petition
for bail and set for hearing on 23 July 1991.
On 19 July 1991, petitioner filed a petition for certiorari, prohibition and mandamus before the
Supreme Court assailing the 17 July 1991 Order, contending that the information was null and void
because no preliminary investigation had been previously conducted, in violation of his right to due
process. Petitioner also moved for suspension of all proceedings in the case pending resolution by
the Supreme Court of his petition; this motion was, however, denied by respondent Judge.
On 23 July 1991, petitioner surrendered to the police.
By a Resolution dated 24 July 1991, this Court remanded the petition for certiorari, prohibition
and mandamus to the Court of Appeals.
On 16 August 1991, respondent Judge issued an order in open court setting the arraignment of
petitioner on 23 August 1991.
On 19 August 1991, petitioner filed with the Court of Appeals a motion to restrain his arraignment.
On 23 August 1991, respondent judge issued a Commitment Order directing the Provincial Warden
of Rizal to admit petitioner into his custody at the Rizal Provincial Jail. On the same date, petitioner
was arraigned. In view, however, of his refusal to enter a plea, the trial court entered for him a plea of
not guilty. The Trial court then set the criminal case for continuous hearings on 19, 24 and 26
September; on 2, 3, 11 and 17 October; and on 7, 8, 14, 15, 21 and 22 November 1991. 11
On 27 August 1991, petitioner filed a petition for habeas corpus 12 in the Court of Appeals. He alleged that in view
of public respondent's failure to join issues in the petition for certiorari earlier filed by him, after the lapse of more than a month, thus
prolonging his detention, he was entitled to be released on habeas corpus.
On 30 August 1991, the Court of Appeals issued the writ of habeas corpus. 13 The petition
for certiorari, prohibition and mandamus, on the one hand, and the petition for habeas corpus, upon the
other, were subsequently consolidated in the Court of Appeals.
The Court of Appeals, on 2 September 1991, issued a resolution denying petitioner's motion to
restrain his arraignment on the ground that that motion had become moot and academic.
On 19 September 1991, trial of the criminal case commenced and the prosecution presented its first
witness.
On 23 September 1991, the Court of Appeals rendered a consolidated decision
(2) petitions, on the following grounds:
14
dismissing the two
a. Petitioner's warrantless arrest was valid because the offense for which he was
arrested and charged had been "freshly committed." His identity had been
established through investigation. At the time he showed up at the police station,
there had been an existing manhunt for him. During the confrontation at the San
Juan Police Station, one witness positively identified petitioner as the culprit.
b. Petitioner's act of posting bail constituted waiver of any irregularity attending his
arrest. He waived his right to preliminary investigation by not invoking it properly and
seasonably under the Rules.
c. The trial court did not abuse its discretion when it issued the 17 July 1991 Order
because the trial court had the inherent power to amend and control its processes so
as to make them conformable to law and justice.
d. Since there was a valid information for murder against petitioner and a valid
commitment order (issued by the trial judge after petitioner surrendered to the
authorities whereby petitioner was given to the custody of the Provincial Warden), the
petition for habeas corpus could not be granted.
On 3 October 1991, the prosecution presented three (3) more witnesses at the trial. Counsel for
petitioner also filed a "Withdrawal of Appearance" 15 with the trial court, with petitioner's conformity.
On 4 October 1991, the present Petition for Review on Certiorari was filed. On 14 October 1991, the
Court issued a Resolution directing respondent Judge to hold in abeyance the hearing of the criminal
case below until further orders from this Court.
In this Petition for Review, two (2) principal issues need to be addressed: first, whether or not a
lawful warrantless arrest had been effected by the San Juan Police in respect of petitioner Go; and
second, whether petitioner had effectively waived his right to preliminary investigation. We consider
these issues seriatim.
In respect of the first issue, the Solicitor General argues that under the facts of the case, petitioner
had been validly arrested without warrant. Since petitioner's identity as the gunman who had shot
Eldon Maguan on 2 July 1991 had been sufficiently established by police work, petitioner was validly
arrested six (6) days later at the San Juan Police Station. The Solicitor General invokes Nazareno
v. Station Commander, etc., et al., 16 one of the seven (7) cases consolidated with In the Matter of the
Petition for Habeas Corpus of Roberto Umil, etc., v. Ramos, et al. 17 where a majority of the Court upheld
a warrantees arrest as valid although effected fourteen (14) days after the killing in connection with which
Nazareno had been arrested. Accordingly, in the view of the Solicitor General, the provisions of Section 7,
Rule 112 of the Rules of Court were applicable and because petitioner had declined to waive the
provisions of Article 125 of the Revised Penal Code, the Prosecutor was legally justified in filing the
information for murder even without preliminary investigation.
On the other hand, petitioner argues that he was not lawfully arrested without warrant because he
went to the police station six (6) days after the shooting which he had allegedly perpetrated. Thus,
petitioner argues, the crime had not been "just committed" at the time that he was arrested.
Moreover, none of the police officers who arrested him had been an eyewitness to the shooting of
Maguan and accordingly none had the "personal knowledge" required for the lawfulness of a
warrantees arrest. Since there had been no lawful warrantless arrest. Section 7, Rule 112 of the
Rules of Court which establishes the only exception to the right to preliminary investigation, could
not apply in respect of petitioner.
The reliance of both petitioner and the Solicitor General upon Umil v. Ramos is, in the circumstances
of this case, misplaced. In Umil v. Ramos, by an eight-to-six vote, the Court sustained the legality of
the warrantless arrests of petitioners made from one (1) to fourteen days after the actual commission
of the offenses, upon the ground that such offenses constituted "continuing crimes." Those offenses
were subversion, membership in an outlawed organization like the New People's Army, etc. In the
instant case, the offense for which petitioner was arrested was murder, an offense which was
obviously commenced and completed at one definite location in time and space. No one had
pretended that the fatal shooting of Maguan was a "continuing crime."
Secondly, we do not believe that the warrantees "arrest" or detention of petitioner in the instant case
falls within the terms of Section 5 of Rule 113 of the 1985 Rules on Criminal Procedure which
provides as follows:
Sec. 5 Arrest without warrant; when lawful. A peace officer or a private person
may, without warrant, arrest a person:
In cases falling under paragraphs (a) and (b) hereof, the person arrested without a
warrant shall be forthwith delivered to the nearest police station or jail, and he shall
be proceed against in accordance with Rule 112, Section 7.
Petitioner's "arrest" took place six (6) days after the shooting of Maguan. The "arresting" officers
obviously were not present, within the meaning of Section 5(a), at the time petitioner had allegedly
shot Maguan. Neither could the "arrest" effected six (6) days after the shooting be reasonably
regarded as effected "when [the shooting had] in fact just been committed" within the meaning of
Section 5(b). Moreover, none of the "arresting" officers had any "personal knowledge" of facts
indicating that petitioner was the gunman who had shot Maguan. The information upon which the
police acted had been derived from statements made by alleged eyewitnesses to the shooting
one stated that petitioner was the gunman; another was able to take down the alleged gunman's
car's plate number which turned out to be registered in petitioner's wife's name. That information did
not, however, constitute "personal knowledge." 18
It is thus clear to the Court that there was no lawful warrantless arrest of petitioner within the
meaning of Section 5 of Rule 113. It is clear too that Section 7 of Rule 112, which provides:
Sec. 7 When accused lawfully arrested without warrant. When a person is lawfully
arrested without a warrant for an offense cognizable by the Regional Trial Court the
complaint or information may be filed by the offended party, peace officer or fiscal
without a preliminary investigation having been first conducted, on the basis of the
affidavit of the offended party or arresting office or person
However, before the filing of such complaint or information, the person arrested may
ask for a preliminary investigation by a proper officer in accordance with this Rule,
but he must sign a waiver of the provisions of Article 125 of the Revised Penal Code,
as amended, with the assistance of a lawyer and in case of non-availability of a
lawyer, a responsible person of his choice. Notwithstanding such waiver, he may
apply for bail as provided in the corresponding rule and the investigation must be
terminated within fifteen (15) days from its inception.
If the case has been filed in court without a preliminary investigation having been first
conducted, the accused may within five (5) days from the time he learns of the filing
of the information, ask for a preliminary investigation with the same right to adduce
evidence in his favor in the manner prescribed in this Rule. (Emphasis supplied)
is also not applicable. Indeed, petitioner was not arrested at all. When he walked into San Juan
Police Station, accompanied by two (2) lawyers, he in fact placed himself at the disposal of the
police authorities. He did not state that he was "surrendering" himself, in all probability to avoid the
implication he was admitting that he had slain Eldon Maguan or that he was otherwise guilty of a
crime. When the police filed a complaint for frustrated homicide with the Prosecutor, the latter should
have immediately scheduled a preliminary investigation to determine whether there was probable
cause for charging petitioner in court for the killing of Eldon Maguan. Instead, as noted earlier, the
Prosecutor proceed under the erroneous supposition that Section 7 of Rule 112 was applicable and
required petitioner to waive the provisions of Article 125 of the Revised Penal Code as a condition
for carrying out a preliminary investigation. This was substantive error, for petitioner was entitled to a
preliminary investigation and that right should have been accorded him without any conditions.
Moreover, since petitioner had not been arrested, with or without a warrant, he was also entitled to
be released forthwith subject only to his appearing at the preliminary investigation.
Turning to the second issue of whether or not petitioner had waived his right to preliminary
investigation, we note that petitioner had from the very beginning demanded that a preliminary
investigation be conducted. As earlier pointed out, on the same day that the information for murder
was filed with the Regional Trial Court, petitioner filed with the Prosecutor an omnibus motion for
immediate release and preliminary investigation. The Solicitor General contends that that omnibus
motion should have been filed with the trial court and not with the Prosecutor, and that the petitioner
should accordingly be held to have waived his right to preliminary investigation. We do not believe
that waiver of petitioner's statutory right to preliminary investigation may be predicated on such a
slim basis. The preliminary investigation was to be conducted by the Prosecutor, not by the Regional
Trial Court. It is true that at the time of filing of petitioner's omnibus motion, the information for
murder had already been filed with the Regional Trial Court: it is not clear from the record whether
petitioner was aware of this fact at the time his omnibus motion was actually filed with the
Prosecutor. In Crespo v. Mogul, 19 this Court held:
The preliminary investigation conducted by the fiscal for the purpose of determining
whether a prima facie case exists to warranting the prosecution of the accused is
terminated upon the filing of the information in the proper court. In turn, as above
stated, the filing of said information sets in motion the criminal action against the
accused in Court. Should the fiscal find it proper to conduct a reinvestigation of the
case, at such stage, the permission of the Court must be secured. After such
reinvestigation the finding and recommendations of the fiscal should be submitted to
the Court for appropriate action. While it is true that the fiscal has the quasijudicial discretion to determine whether or not a criminal case should be filed in court
or not, once the case had already been brought to Court whatever disposition the
fiscal may feel should be proper in the case thereafter should be addressed for the
consideration of the Court. The only qualification is that the action of the Court must
not impair the substantial rights of the accused., or the right of the People to due
process of law.
xxx xxx xxx
The rule therefore in this jurisdiction is that once a complaint or information is filed in
Court any disposition of the case [such] as its dismissal or the conviction or acquittal
of the accused rests in the sound discretion of the Court. Although the fiscal retains
the direction and control of the prosecution of criminal cases even while the case is
already in Court he cannot impose his opinion on the trial court. The Court is the best
and sole judge on what to do with the case before it. . . . 20 (Citations omitted;
emphasis supplied)
Nonetheless, since petitioner in his omnibus motion was asking for preliminary investigation
and not for a re-investigation (Crespo v. Mogul involved a re-investigation), and since the
Prosecutor himself did file with the trial court, on the 5th day after filing the information for
murder, a motion for leave to conduct preliminary investigation (attaching to his motion a
copy of petitioner's omnibus motion), we conclude that petitioner's omnibus motion was in
effect filed with the trial court. What was crystal clear was that petitioner did ask for a
preliminary investigation on the very day that the information was filed without such
preliminary investigation, and that the trial court was five (5) days later apprised of the desire
of the petitioner for such preliminary investigation. Finally, the trial court did in fact grant the
Prosecutor's prayer for leave to conduct preliminary investigation. Thus, even on the
(mistaken) supposition apparently made by the Prosecutor that Section 7 of Rule 112 of the
Revised Court was applicable, the 5-day reglementary period in Section 7, Rule 112 must be
held to have been substantially complied with.
We believe and so hold that petitioner did not waive his right to a preliminary investigation. While
that right is statutory rather than constitutional in its fundament, since it has in fact been established
by statute, it is a component part of due process in criminal justice. 21 The right to have a preliminary
investigation conducted before being bound over to trial for a criminal offense and hence formally at risk
of incarceration or some other penalty, is not a mere formal or technical right; it is a substantive right. The
accused in a criminal trial is inevitably exposed to prolonged anxiety, aggravation, humiliation, not to
speak of expense; the right to an opportunity to avoid a process painful to any one save, perhaps, to
hardened criminals, is a valuable right. To deny petitioner's claim to a preliminary investigation would be
to deprive him the full measure of his right to due process.
The question may be raised whether petitioner still retains his right to a preliminary investigation in
the instant case considering that he was already arraigned on 23 August 1991. The rule is that the
right to preliminary investigation is waived when the accused fails to invoke it before or at the time of
entering a plea at arraignment.22 In the instant case, petitioner Go had vigorously insisted on his right to
preliminary investigation before his arraignment.At the time of his arraignment, petitioner was already
before the Court of Appeals on certiorari, prohibition and mandamusprecisely asking for a preliminary
investigation before being forced to stand trial.
Again, in the circumstances of this case, we do not believe that by posting bail petitioner had waived
his right to preliminary investigation. In People v. Selfaison, 23 we did hold that appellants there had
waived their right to preliminary investigation because immediately after their arrest, they filed bail and
proceeded to trial "without previously claiming that they did not have the benefit of a preliminary
investigation." 24 In the instant case, petitioner Go asked for release on recognizance or on bail and for
preliminary investigation in one omnibus motion. He had thus claimed his right to preliminary
investigation before respondent Judge approved the cash bond posted by petitioner and ordered his
release on 12 July 1991. Accordingly, we cannot reasonably imply waiver of preliminary investigation on
the part of petitioner. In fact, when the Prosecutor filed a motion in court asking for leave to conduct
preliminary investigation, he clearly if impliedly recognized that petitioner's claim to preliminary
investigation was a legitimate one.
We would clarify, however, that contrary to petitioner's contention the failure to accord preliminary
investigation, while constituting a denial of the appropriate and full measure of the statutory process
of criminal justice, did not impair the validity of the information for murder nor affect the jurisdiction of
the trial court. 25
It must also be recalled that the Prosecutor had actually agreed that petitioner was entitled to bail.
This was equivalent to an acknowledgment on the part of the Prosecutor that the evidence of guilt
then in his hands was not strong. Accordingly, we consider that the 17 July 1991 order of respondent
Judge recalling his own order granting bail and requiring petitioner to surrender himself within fortyeight (48) hours from notice, was plainly arbitrary considering that no evidence at all and certainly
no new or additional evidence had been submitted to respondent Judge that could have justified
the recall of his order issued just five (5) days before. It follows that petitioner was entitled to be
released on bail as a matter of right.
The final question which the Court must face is this: how does the fact that, in the instant case, trial
on the merits has already commenced, the Prosecutor having already presented four (4) witnesses,
impact upon, firstly, petitioner's right to a preliminary investigation and, secondly, petitioner's right to
be released on bail? Does he continue to be entitled to have a preliminary investigation conducted in
respect of the charge against him? Does petitioner remain entitled to be released on bail?
Turning first to the matter of preliminary investigation, we consider that petitioner remains entitled to
a preliminary investigation although trial on the merits has already began. Trial on the merits should
be suspended or held in abeyance and a preliminary investigation forthwith accorded to
petitioner. 26 It is true that the Prosecutor might, in view of the evidence that he may at this time have on
hand, conclude that probable cause exists; upon the other hand, the Prosecutor conceivably could reach
the conclusion that the evidence on hand does not warrant a finding of probable cause. In any event, the
constitutional point is that petitioner was not accorded what he was entitled to by way of procedural due
process. 27 Petitioner was forced to undergo arraignment and literally pushed to trial without preliminary
investigation, with extraordinary haste, to the applause from the audience that filled the courtroom. If he
submitted to arraignment at trial, petitioner did so "kicking and screaming," in a manner of speaking .
During the proceedings held before the trial court on 23 August 1991, the date set for arraignment of
petitioner, and just before arraignment, counsel made very clear petitioner's vigorous protest and
objection to the arraignment precisely because of the denial of preliminary investigation. 28 So energetic
and determined were petitioner's counsel's protests and objections that an obviously angered court and
prosecutor dared him to withdraw or walkout, promising to replace him with counsel de oficio. During the
trial, before the prosecution called its first witness, petitioner through counsel once again reiterated his
objection to going to trial without preliminary investigation: petitioner's counsel made of record his
"continuing objection." 29 Petitioner had promptly gone to the appellate court on certiorari and prohibition
to challenge the lawfulness of the procedure he was being forced to undergo and the lawfulness of his
detention. 30 If he did not walk out on the trial, and if he cross-examined the prosecution's witnesses, it
was because he was extremely loath to be represented by counsel de oficio selected by the trial judge,
and to run the risk of being held to have waived also his right to use what is frequently the only test of
truth in the judicial process.
In respect of the matter of bail, we similarly believe and so hold that petitioner remains entitled to be
released on bail as a matter of right. Should the evidence already of record concerning petitioner's
guilt be, in the reasonable belief of the Prosecutor, strong, the Prosecutor may move in the trial court
for cancellation of petitioner's bail. It would then be up to the trial court, after a careful and objective
assessment of the evidence on record, to grant or deny the motion for cancellation of bail.
To reach any other conclusions here, that is, to hold that petitioner's rights to a preliminary
investigation and to bail were effectively obliterated by evidence subsequently admitted into the
record would be to legitimize the deprivation of due process and to permit the Government to benefit
from its own wrong or culpable omission and effectively to dilute important rights of accused persons
well-nigh to the vanishing point. It may be that to require the State to accord petitioner his rights to a
preliminary investigation and to bail at this point, could turn out ultimately to be largely a ceremonial
exercise. But the Court is not compelled to speculate. And, in any case, it would not
be idle ceremony; rather, it would be a celebration by the State of the rights and liberties of its own
people and a re-affirmation of its obligation and determination to respect those rights and liberties.
ACCORDINGLY, the Court resolved to GRANT the Petition for Review on Certiorari. The Order of
the trial court dated 17 July 1991 is hereby SET ASIDE and NULLIFIED, and the Decision of the
Court of Appeals dated 23 September 1991 hereby REVERSED.
The Office of the Provincial Prosecutor is hereby ORDERED to conduct forthwith a preliminary
investigation of the charge of murder against petitioner Go, and to complete such preliminary
investigation within a period of fifteen (15) days from commencement thereof. The trial on the merits
of the criminal case in the Regional Trial Court shall be SUSPENDED to await the conclusion of the
preliminary investigation.
Meantime, petitioner is hereby ORDERED released forthwith upon posting of a cash bail bond of
One Hundred Thousand Pesos (P100,000.00). This release shall be without prejudice to any lawful
order that the trial court may issue, should the Office of the Provincial Prosecutor move for
cancellation of bail at the conclusion of the preliminary investigation.
No pronouncement as to costs. This Decision is immediately executory.
SO ORDERED.
G.R. No. 125299 January 22, 1999

vs.
FLORENCIO DORIA y BOLADO and VIOLETA GADDAO y CATAMA @ "NENETH," accusedappellants.
PUNO, J.:
On December 7, 1995, accused-appellants Florencio Doria y Bolado and Violeta Gaddao y Catama
@ "Neneth" were charged with violation of Section 4, in relation to Section 21 of the Dangerous
Drugs Act of 1972. 1 The information reads:
That on or about the 5th day of December, 1995 in the City of Mandaluyong,
Philippines, a place within the jurisdiction of this Honorable Court, the above-named
accused, conspiring, confederating and mutually helping and aiding one another and
without having been authorized by law, did, then and there willfully, unlawfully and
feloniously sell, administer, deliver and give away to another eleven (11) plastic bags
of suspected marijuana fruiting tops weighing 7,641.08 grams in violation of the
above-cited law.
CONTRARY TO LAW. 2
The prosecution contends the offense was committed as follows: In November 1995, members of
the North Metropolitan District, Philippine National Police (PNP) Narcotics Command (Narcom),
received information from two (2) civilian informants (CI) that one "Jun" was engaged in illegal drug
activities in Mandaluyong City. The Narcom agents decided to entrap and arrest "Jun" in a buy-bust
operation. As arranged by one of the CI's, a meeting between the Narcom agents and "Jun" was
scheduled on December 5, 1995 at E. Jacinto Street in Mandaluyong City.
On December 5, 1995, at 6:00 in the morning, the CI went to the PNP Headquarters at EDSA,
Kamuning, Quezon City to prepare for the buy-bust operation. The Narcom agents formed Team
Alpha composed of P/Insp. Nolasco Cortes as team leader and PO3 Celso Manlangit, SPO1
Edmund Badua and four (4) other policemen as members. P/Insp. Cortes designated P03 Manlangit
as the poseur-buyer and SPO1 Badua as his back-up, and the rest of the team as perimeter
security. Superintendent Pedro Alcantara, Chief of the North Metropolitan District PNP Narcom, gave
the team P2, 000. 00 to cover operational expenses. From this sum, PO3 Manlangit set aside
P1,600.00 a one thousand peso bill and six (6) one hundred peso bills 3 as money for the buybust operation. The market price of one kilo of marijuana was then P1,600.00. P03 Manlangit marked the
bills with his initials and listed their serial numbers in the police blotter. 4 The team rode in two cars and
headed for the target area.
At 7:20 of the same morning, "Jun" appeared and the CI introduced PO3 Manlangit as interested in
buying one (1) kilo of marijuana. P03 Manlangit handed "Jun" the marked bills worth P1,600.00.
"Jun" instructed P03 Manlangit to wait for him at the corner of Shaw Boulevard and Jacinto Street
while he got the marijuana from his associate. 5 An hour later, "Jun" appeared at the agreed place
where P03 Manlangit, the CI and the rest of the team were waiting. "Jun" took out from his bag an object
wrapped in plastic and gave it to P03 Manlangit. P03 Manlangit forthwith arrested "Jun" as SPO1 Badua
rushed to help in the arrest. They frisked "Jun" but did not find the marked bills on him. Upon inquiry,
"Jun" revealed that he left the money at the house of his associate named "Neneth. 6 "Jun" led the police
team to "Neneth's" house nearby at Daang Bakal.
The team found the door of "Neneth's" house open and a woman inside. "Jun" identified the woman
as his associate. 7 SPO1 Badua asked "Neneth" about the P1,600.00 as PO3 Manlangit looked over
"Neneth's" house. Standing by the door, PO3 Manlangit noticed a carton box under the dining table. He
saw that one of the box's flaps was open and inside the box was something wrapped in plastic. The
plastic wrapper and its contents appeared similar to the marijuana earlier "sold" to him by "Jun." His
suspicion aroused, PO3 Manlangit entered "Neneth's" house and took hold of the box. He peeked inside
the box and found that it contained ten (10) bricks of what appeared to be dried marijuana leaves.
Simultaneous with the box's discovery, SPO1 Badua recovered the marked bills from "Neneth." 8 The
policemen arrested "Neneth." They took "Neneth" and "Jun," together with the box, its contents and the
marked bills and turned them over to the investigator at headquarters. It was only then that the police
learned that "Jun" is Florencio Doria y Bolado while "Neneth" is Violeta Gaddao y Catama. The one (1)
brick of dried marijuana leaves recovered from "Jun" plus the ten (10) bricks recovered from "Neneth's"
house were examined at the PNP Crime Laboratory. 9 The bricks, eleven (11) in all, were found to be dried
marijuana fruiting tops of various weights totalling 7,641.08 grams. 10
The prosecution story was denied by accused-appellants Florencio Doria and Violeta Gaddao.
Florencio Doria, a 33-year old carpenter, testified that on December 5, 1995, at 7:00 in the morning,
he was at the gate of his house reading a tabloid newspaper. Two men appeared and asked him if
he knew a certain "Totoy." There were many "Totoys" in their area and as the men questioning him
were strangers, accused-appellant denied knowing any "Totoy." The men took accused-appellant
inside his house and accused him of being a pusher in their community. When accused-appellant
denied the charge, the men led him to their car outside and ordered him to point out the house of
"Totoy." For five (5) minutes, accused-appellant stayed in the car. Thereafter, he gave in and took
them to "Totoy's" house.
Doria knocked on the door of "Totoy's" house but no one answered. One of the men, later identified
as P03 Manlangit, pushed open the door and he and his companions entered and looked around the
house for about three minutes. Accused-appellant Doria was left standing at the door. The policemen
came out of the house and they saw Violeta Gaddao carrying water from the well. He asked Violeta
where "Totoy" was but she replied he was not there. Curious onlookers and kibitzers were, by that
time, surrounding them. When Violeta entered her house, three men were already inside. Accusedappellant Doria, then still at the door, overheard one of the men say that they found a carton box.
Turning towards them, Doria saw box on top of the table. The box was open and had something
inside. P03 Manlangit ordered him and Violeta to go outside the house and board the car. They were
brought to police headquarters where they were investigated.
Accused-appellant Doria further declared that his co-accused, Violeta Gaddao, is the wife of his
acquaintance, Totoy Gaddao. He said that he and Totoy Gaddao sometimes drank together at the
neighborhood store. This closeness, however, did not extend to Violeta, Totoy's wife. 11
Accused-appellant Violeta Gaddao, a 35-year old rice vendor, claimed that on December 5, 1995,
she was at her house at Daang Bakal, Mandaluyong City where she lived with her husband and five
(5) children, namely, Arvy, aged 10, Arjay, aged 8, the twins Raymond and Raynan, aged 5, and
Jason, aged 3. That day, accused-appellant woke up at 5:30 in the morning and bought pan de sal
for her children's breakfast. Her husband, Totoy, a housepainter, had left for Pangasinan five days
earlier. She woke her children and bathed them. Her eldest son, Arvy, left for school at 6:45 A.M. Ten
minutes later, she carried her youngest son, Jayson, and accompanied Arjay to school. She left the
twins at home leaving the door open. After seeing Arjay off, she and Jayson remained standing in
front of the school soaking in the sun for about thirty minutes. Then they headed for home. Along the
way, they passed the artesian well to fetch water. She was pumping water when a man clad in short
pants and denim jacket suddenly appeared and grabbed her left wrist. The man pulled her and took
her to her house. She found out later that the man was P03 Manlangit.
Inside her house were her co-accused Doria and three (3) other persons. They asked her about a
box on top of the table. This was the first time she saw the box. The box was closed and tied with a
piece of green straw. The men opened the box and showed her its contents. She said she did not
know anything about the box and its contents.
Accused-appellant Violeta Gaddao confirmed that her co-accused Florencio Doria was a friend of
her husband, and that her husband never returned to their house after he left for Pangasinan. She
denied the charge against her and Doria and the allegation that marked bills were found in her
person. 12
After trial, the Regional Trial Court, Branch 156, Pasig City convicted the accused-appellants. The
trial court found the existence of an "organized/syndicated crime group" and sentenced both
accused-appellants to death and pay a fine of P500,000.00 each. The dispositive portion of the
decision reads as follows:
WHEREFORE, the guilt of accused, FLORENCIO DORIA y BOLADO @ "Jun" and
VIOLETA GADDAO y CATAMA @ "Neneth" having been established beyond
reasonable doubt, they are both
CONVICTED of the present charge against them.
According to the amendatory provisions of Sec. 13 of Republic Act No. 7659 which
cover violations of Sec. 4 of Republic Act No. 6425 and which was exhaustively
discussed in People v. Simon, 234 SCRA 555, the penalty imposable in this case
is reclusion perpetua to death and a fine ranging from five hundred thousand pesos
to ten million pesos. Taking into consideration, however, the provisions of Sec. 23,
also of Republic Act No. 7659 which explicitly state that:
The maximum penalty shall be imposed if the offense was committed
by any person who belongs to an organized/syndicated crime group.
An organized/syndicated crime group means a group of two or more
persons collaborating, confederating or mutually helping one another
for purposes of gain in the commission of any crime.
the Court is hereby constrained to sentence (hereby sentences) said FLORENCIO
DORIA y BOLADO @ "Jun" and VIOLETA GADDAO y CATAMA @ "Neneth" to
DEATH and to pay a fine of Five Hundred Thousand Pesos (P500,000.00) each
without subsidiary imprisonment in case of insolvency and to pay the costs.
The confiscated marijuana bricks (7,641.08 grams) shall be turned over to the
Dangerous Drugs Board, NBI for destruction in accordance with law.
Let a Commitment Order be issued for the transfer of accused DORIA from the
Mandaluyong City Jail to the New Bilibid Prisons, Muntinlupa City and also for
accused GADDAO for her transfer to the Correctional Institute for Women,
Mandaluyong City.
Let the entire records of this case be forwarded immediately to the Supreme Court
for mandatory review.
SO ORDERED. 13
Before this Court, accused-appellant Doria assigns two errors, thus:
I
THE COURT A QUO GRAVELY ERRED IN GIVING WEIGHT TO THE TESTIMONY
OF THE WITNESSES FOR THE PROSECUTION WHEN THEIR TESTIMONIES
WERE SHOT WITH DISCREPANCIES, INCONSISTENCIES AND THAT
THE CORPUS DELICTI OF THE MARIJUANA ALLEGEDLY TAKEN FROM
APPELLANT WAS NOT POSITIVELY IDENTIFIED BY THE POSEUR-BUYER.
II
THE COURT A QUO GRAVELY ERRED IN ADMITTING AS EVIDENCE THE
MARIJUANA FRUITINGS FOUND INSIDE THE CARTON BOX AS THESE WERE
OBTAINED THROUGH A WARRANTLESS SEARCH AND DOES NOT COME
WITHIN THE PLAIN VIEW DOCTRINE. 14
Accused-appellant Violeta Gaddao contends:
I
THE LOWER COURT ERRED IN FINDING APPELLANT GUILTY DESPITE THE
INCREDIBILITY OF THE POLICE VERSION OF THE MANNER THE ALLEGED
BUY-BUST WAS CONDUCTED.
II
THE PNP OFFICERS' VERSIONS AS TO WHERE THE BUY-BUST MONEY CAME
FROM ARE INCONSISTENT WITH ONE ANOTHER AND ALSO REEKS WITH
INCREDIBILITY.
III
THE LOWER COURT ERRED IN FINDING APPELLANT GUILTY AND
SENTENCING HER TO DEATH DESPITE THE MANIFESTLY IRRECONCILABLE
INCONSISTENCIES IN THE VERSIONS OF THE POLICE AS TO HOW AND BY

WHOM THE ALLEGED BUY-BUST MONEY WAS RECOVERED FROM HER,
WHICH IN CONSEQUENCE RESULTS IN THE EVIDENCE, OF RETRIEVAL FROM
HER OF THE SAME, NEBULOUS, AT BEST, NIL, AT WORST.
IV
THE LOWER COURT ERRED IN UPHOLDING THE VALIDITY OF THE
WARRANTLESS SEARCH LEADING TO THE SEIZURE OF THE MARIJUANA
ALLEGEDLY FOUND INSIDE THE HOUSE OF ACCUSED-APPELLANT. 15
The assigned errors involve two principal issues: (1) the validity of the buy-bust operation in the
apprehension of accused-appellant Doria; and (2) the validity of the warrantless arrest of accusedappellant Gaddao, the search of her person and house, and the admissibility of the pieces of
evidence obtained therefrom.
Accused-appellants were caught by the police in a buy-bust operation. A buy-bust operation is a
form of entrapment employed by peace officers as an effective way of apprehending a criminal in the
act of the commission of an offense. 16 Entrapment has received judicial sanction when undertaken with
due regard to constitutional and legal safeguards. 17
Entrapment was unknown in common law. It is a judicially created twentieth-century American
doctrine that evolved from the increasing use of informers and undercover agents in the detection of
crimes, particularly liquor and narcotics offenses. 18 Entrapment sprouted from the doctrine of estoppel
and the public interest in the formulation and application of decent standards in the enforcement of
criminal law. 19 It also took off from a spontaneous moral revulsion against using the powers of
government to beguile innocent but ductile persons into lapses that they might otherwise resist. 20
In the American jurisdiction, the term "entrapment" has a generally negative meaning because it is
understood as the inducement of one to commit a crime not contemplated by him, for the mere
purpose of instituting a criminal prosecution against him. 21 The classic definition of entrapment is that
articulated by Justice Roberts in Sorrells v. United States, 22 the first Supreme Court decision to
acknowledge the concept: "Entrapment is the conception and planning of an offense by an officer, and his
procurement of its commission by one who would not have perpetrated it except for the trickery,
percuasion or fraud of the officers." 23 It consists of two (2) elements: (a) acts of percuasion, trickery, or
fraud carried out by law enforcement officers or the agents to induce a defendant to commit a crime; and
(b) the origin of the criminal design in the minds of the government officials rather than that of the
innocent defendant, such that the crime is the product of the creative activity of the law enforcement
officer. 24
It is recognized that in every arrest, there is a certain amount of entrapment used to outwit the
persons violating or about to violate the law. Not every deception is forbidden. The type of
entrapment the law forbids is the inducing of another to violate the law, the "seduction" of an
otherwise innocent person into a criminal career. 25Where the criminal intent originates criminal in the
mind of the entrapping person and the accused is lured into the commission of the offense charged in
order to prosecute him, there is entrapment and no conviction may be had. 26 Where, however, the
criminal intent originates in the mind of the accused and the criminal offense is completed, the fact that a
person acting as a decoy for the state, or public officials furnished the accused an opportunity for
commission of the offense, or that the accused is aided in the commission of the crime in order to secure
the evidence necessary to prosecute him, there is no entrapment and the accused must be
convicted. 27 The law tolerates the use of decoys and other artifices to catch a criminal.
Entrapment is recognized as a valid defense 28 that can be raised by an accused and partakes of the
nature of a confession and avoidance. 29 It is a positive defense. Initially, an accused has the burden of
providing sufficient evidence that the government induced him to commit the offense. Once established,
the burden shifts to the governmet to show otherwise. 30 When entrapment is raised as a defense,
American federal courts and a majority of state courts use the "subjective" or "origin of intent" test laid
down in Sorrells v. United States 31 to determine whether entrapment actually occurred. The focus of the
inquiry is on the accused's predisposition to commit the offense charged, his state of mind and inclination
before his initial exposure to government agents. 32 All relevant facts such as the accused's mental and
character traits, his past offenses, activities, his eagerness in committing the crime, his reputation, etc.,
are considered to assess his state of mind before the crime. 33 The predisposition test emphasizes the
accused's propensity to commit the offense rather than the officer's misconduct 34 and reflects an attempt
to draw a line between a "trap for the unwary innocent and the trap for the unwary criminal." 35 If the
accused was found to have been ready and willing to commit the offense at any favorable opportunity, the
entrapment defense will fail even if a police agent used an unduly persuasive inducement. 36 Some states,
however, have adopted the "objective" test. 37 This test was first authoritatively laid down in the case
of Grossman v. State 38 rendered by the Supreme Court of Alaska. Several other states have subsequently adopted the test by
judicial pronouncement or legislation. Here, the court considers the nature of the police activity involved and the propriety of police
The inquiry is focused on the inducements used by government agents, on police conduct, not
on the accused and his predisposition to commit the crime. For the goal of the defense is to deter
unlawful police conduct. 40 The test of entrapment is whether the conduct of the law enforcement agent
was likely to induce a normally law-abiding person, other than one who is ready and willing, to commit the
offense; 41 for purposes of this test, it is presumed that a law-abiding person would normally resist the
temptation to commit a crime that is presented by the simple opportunity to act unlawfully. 42 Official
conduct that merely offers such an opportunity is permissible, but overbearing conduct, such as
badgering, cajoling or importuning, 43 or appeals to sentiments such as pity, sympathy, friendship or pleas
of desperate illness, are not. 44 Proponents of this test believe that courts must refuse to convict an
entrapped accused not because his conduct falls outside the legal norm but rather because, even if his
guilt has been established, the methods employed on behalf of the government to bring about the crime
"cannot be countenanced." To some extent, this reflects the notion that the courts should not become
tainted by condoning law enforcement improprieties. 45 Hence, the transactions leading up to the offense,
the interaction between the accused and law enforcement officer and the accused's response to the
officer's inducements, the gravity of the crime, and the difficulty of detecting instances of its commission
are considered in judging what the effect of the officer's conduct would on a normal person. 46
conduct. 39
Both the "subjective" and "objective" approaches have been criticized and objected to. It is claimed
that the "subjective" test creates an "anything goes" rule, i.e, if the court determines that an accused
was predisposed to commit the crime charged, no level of police deceit, badgering or other unsavory
practices will be deemed impermissible. 47 Delving into the accused's character and predisposition
obscures the more important task of judging police behavior and prejudices the accused more generally.
It ignores the possibility that no matter what his past crimes and general disposition were, the accused
might not have committed the particular crime unless confronted with inordinate inducements. 48 On the
other extreme, the purely "objective" test eliminates entirely the need for considering a particular
accused's predisposition. His predisposition, at least if known by the police, may have an important
bearing upon the question of whether the conduct of the police and and their agents was proper. 49 The
undisputed fact that the accused was a dangerous and chronic offender or that he was a shrewd and
active member of a criminal syndicate at the time of his arrest is relegated to irrelevancy. 50
Objections to the two tests gave birth to hybrid approaches to entrapment. Some states in the United
States now combine both the "subjective" and "objective" 51 In Cruz v. State, 52 the Florida Supreme
Court declared that the permissibility of police conduct must first be determined. If this objective test is
satisfied, then the analysis turns to whether the accused was predisposed to commit the crime. 53 In Baca
v. State, 54 the New Mexico Supreme Court modified the state's entrapment analysis by holding that "a
criminal defendant may successfully assert a defense of entrapment, either by showing lack of
predisposition to commit the crime for which he is charged, or, that the police exceeded the standards of
proper investigation. 55 The hybrid approaches combine and apply the "objective" and "subjective" tests
alternatively or concurrently.
As early as 1910, this Court has examined the conduct of law enforcers while apprehending the
accused caught in flagrante delicto. In United States v. Phelps, 56 we acquitted the accused from the
offense of smoking opium after finding that the government employee, a BIR personnel, actually induced
him to commit the crime in order to prosecute him. Smith, the BIR agent, testified that Phelps'
apprehension came after he overheard Phelps in a saloon say that he liked smoking opium on some
occasions. Smith's testimony was disregarded. We accorded significance to the fact that it was Smith who
went to the accused three times to convince him to look for an opium den where both of them could
smoke this drug. 57 The conduct of the BIR agent was condemned as "most reprehensible." 58 In People v.
Abella, 59 we acquitted the accused of the crime of selling explosives after examining the testimony of the
apprehending police officer who pretended to be a merchant. The police officer offered "a tempting price, .
. . a very high one" causing the accused to sell the explosives. We found that there was inducement,
"direct, persistent and effective" by the police officer and that outside of his testimony, there was no
evidence sufficient to convict the accused. 60 In People v. Lua Chu and Uy Se Tieng, 61 we convicted the
accused after finding that there was no inducement on the part of the law enforcement officer. We stated
that the Customs secret serviceman smoothed the way for the introduction of opium from Hongkong to
Cebu after the accused had already planned its importation and ordered said drug. We ruled that the
apprehending officer did not induce the accused to import opium but merely entrapped him by pretending
to have an understanding with the Collector of Customs of Cebu to better assure the seizure of the
prohibited drug and the arrest of the surreptitious importers. 62
It was also in the same case of People v. Lua Chu and Uy Se Tieng 63 we first laid down the distinction between
entrapment vis-a-vis instigation or inducement. Quoting 16 Corpus Juris, 64 we held:
ENTRAPMENT AND INSTIGATION. While it has been said that the practice of
entrapping persons into crime for the purpose of instituting criminal prosecutions is to
be deplored, and while instigation, as distinguished from mere entrapment, has often
been condemned and has sometimes been held to prevent the act from being
criminal or punishable, the general rule is that it is no defense to the perpetrator of a
crime that facilities for its commission were purposely placed in his way, or that the
criminal act was done at the 'decoy solicitation' of persons seeking to expose the
criminal, or that detectives feigning complicity in the act were present and apparently
assisting in its commission. Especially is this true in that class of cases where the
offense is one of a kind habitually committed, and the solicitation merely furnishes
evidence of a course of conduct. Mere deception by the detective will not shield
defendant, if the offense was committed by him, free from the influence or instigation
of the detective. The fact that an agent of an owner acts as a supposed confederate
of a thief is no defense to the latter in a prosecution for larceny, provided the original
design was formed independently of such agent; and where a person approached by
the thief as his confederate notifies the owner or the public authorities, and, being
authorised by them to do so, assists the thief in carrying out the plan, the larceny is
nevertheless committed. It is generally held that it is no defense to a prosecution for

an illegal sale of liquor that the purchase was made by a "spotter," detective, or hired
informer; but there are cases holding the contrary. 65
The distinction above-quoted was reiterated in two (2) decisions of the Court of Appeals. In People v.
Galicia, 66the appellate court declared that "there is a wide difference between entrapment and
instigation." The instigator practically induces the would-be accused into the commission of the offense
and himself becomes a co-principal. In entrapment, ways and means are resorted to by the peace officer
for the purpose of trapping and capturing the lawbreaker in the execution of his criminal plan. 67 In People
v. Tan Tiong, 68 the Court of Appeals further declared that "entrapment is no bar to the prosecution and
conviction of the lawbreaker. 69
The pronouncement of the Court of Appeals in People v. Galicia was affirmed by this Court in People
v. Tiu Ua. 70Entrapment, we further held, is not contrary to public policy. It is instigation that is deemed
contrary to public policy and illegal. 71
It can thus be seen that the concept of entrapment in the American jurisdiction is similar to instigation
or inducement in Philippine jurisprudence. Entrapment in the Philippines is not a defense available to
the accused. It is instigation that is a defense and is considered an absolutory cause. 72 To determine
whether there is a entrapment or instigation, our courts have mainly examined the conduct of the
apprehending officers, not the predisposition of the accused to commit the crime. The "objective" test first
applied in United States v. Phelps has been followed in a series of similar cases. 73 Nevertheless, adopting
the "objective" approach has not precluded us from likewise applying the "subjective" test. In People v.
Boholst, 74 we applied both tests by examining the conduct of the police officers in a buy-bust operation and
admitting evidence of the accused's membership with the notorious and dreaded Sigue-Sigue Sputnik
Gang. We also considered accused's previous his convictions of other crimes 75 and held that his
opprobrious past and membership with the dreaded gang strengthened the state's evidence against him.
Conversely, the evidence that the accused did not sell or smoke marijuana and did not have any criminal
record was likewise admitted in People v. Yutuc 76thereby sustaining his defense that led to his acquittal.
The distinction between entrapment and instigation has proven to be very material in anti-narcotics
operations. In recent years, it has become common practice for law enforcement officers and agents
to engage in buy-bust operations and other entrapment procedures in apprehending drug offenders.
Anti-narcotics laws, like anti-gambling laws are regulatory statutes. 77 They are rules of convenience
designed to secure a more orderly regulation of the affairs of society, and their violation gives rise to
crimes mala prohibita. 78 They are not the traditional type of criminal law such as the law of murder, rape,
theft, arson, etc. that deal with crimes mala in se or those inherently wrongful and immoral. 79 Laws
defining crimes mala prohibita condemn behavior directed, not against particular individuals, but against
public order. 80 Violation is deemed a wrong against society as a whole and is generally unattended with
any particular harm to a definite person. 81 These offenses are carried on in secret and the violators resort
to many devices and subterfuges to avoid detection. It is rare for any member of the public, no matter how
furiously he condemns acts mala prohibita, to be willing to assist in the enforcement of the law. It is
necessary, therefore, that government in detecting and punishing violations of these laws, rely, not upon
the voluntary action of aggrieved individuals, but upon the diligence of its own officials. This means that
the police must be present at the time the offenses are committed either in an undercover capacity or
through informants, spies or stool pigeons. 82
Though considered essential by the police in enforcing vice legislation, the confidential informant
system breeds abominable abuse. Frequently, a person who accepts payment from the police in the
apprehension of drug peddlers and gamblers also accept payment from these persons who deceive
the police. The informant himself maybe a drug addict, pickpocket, pimp, or other petty criminal. For
whatever noble purpose it serves, the spectacle that government is secretly mated with the
underworld and uses underworld characters to help maintain law and order is not an inspiring
one. 83 Equally odious is the bitter reality of dealing with unscrupulous, corrupt and exploitative law
enforcers. Like the informant, unscrupulous law enforcers' motivations are legion harassment,
extortion, vengeance, blackmail, or a desire to report an accomplishment to their superiors. This Court
has taken judicial notice of this ugly reality in a number of cases 84 where we observed that it is a
common modus operandi of corrupt law enforcers to prey on weak and hapless persons, particularly
unsuspecting provincial hicks. 85 The use of shady underworld characters as informants, the relative ease
with which illegal drugs may be planted in the hands or property of trusting and ignorant persons, and the
imposed secrecy that inevitably shrouds all drug deals have compelled this Court to be extra-vigilant in
deciding drug cases. 86 Criminal activity is such that stealth and strategy, although necessary weapons in
the arsenal of the police officer, become as objectionable police methods as the coerced confession and
the unlawful search. As well put by the Supreme Court of California in People v. Barraza, 87
[E]ntrapment is a facet of a broader problem. Along with illegal search and seizures,
wiretapping, false arrest, illegal detention and the third degree, it is a type of lawless
enforcement. They all spring from common motivations. Each is a substitute for
skillful and scientific investigation. Each is condoned by the sinister sophism that the
end, when dealing with known criminals of the 'criminal class,' justifies the
employment of illegal means. 88
It is thus imperative that the presumption, juris tantum, of regularity in the performance of official duty
by law enforcement agents raised by the Solicitor General be applied with studied restraint. This
presumption should not by itself prevail over the presumption of innocence and the constitutionallyprotected rights of the individual. 89 It is the duty of courts to preserve the purity of their own temple from
the prostitution of the criminal law through lawless enforcement. 90 Courts should not allow themselves to
be used as an instrument of abuse and injustice lest an innocent person be made to suffer the unusually
severe penalties for drug offenses. 91
We therefore stress that the "objective" test in buy-bust operations demands that the details of the
purported transaction must be clearly and adequately shown. This must start from the initial contact
between the poseur-buyer and the pusher, the offer to purchase, the promise or payment of the
consideration until the consummation of the sale by the delivery of the illegal drug subject of the
sale. 92 The manner by which the initial contact was made, whether or not through an informant, the offer
to purchase the drug, the payment of the "buy-bust" money, and the delivery of the illegal drug, whether to
the informant alone or the police officer, must be the subject of strict scrutiny by courts to insure that lawabiding citizens are not unlawfully induced to commit an offense. Criminals must be caught but not at all
cost. At the same time, however, examining the conduct of the police should not disable courts into
ignoring the accused's predisposition to commit the crime. If there is overwhelming evidence of habitual
delinquency, recidivism or plain criminal proclivity, then this must also be considered. Courts should look
at all factors to determine the predisposition of an accused to commit an offense in so far as they are
relevant to determine the validity of the defense of inducement.
1wphi1.nt
In the case at bar, the evidence shows that it was the confidential informant who initially contacted
accused-appellant Doria. At the pre-arranged meeting, the informant was accompanied by PO3
Manlangit who posed as the buyer of marijuana. P03 Manlangit handed the marked money to
accused-appellant Doria as advance payment for one (1) kilo of marijuana. Accused-appellant Doria
was apprehended when he later returned and handed the brick of marijuana to P03 Manlangit.
PO3 Manlangit testified in a frank, spontaneous, straightforward and categorical manner and his
credibility was not crumpled on cross-examination by defense counsel. Moreover, P03 Manlangit's
testimony was corroborated on its material points by SPO1 Badua, his back-up security. The nonpresentation of the confidential informant is not fatal to the prosecution. Informants are usually not
presented in court because of the need to hide their identity and preserve their invaluable service to
the police. 93 It is well-settled that except when the appellant vehemently denies selling prohibited drugs
and there are material inconsistencies in the testimonies of the arresting officers, 94 or there are reasons to
believe that the arresting officers had motives to testify falsely against the appellant, 95 or that only the
informant was the poseur-buyer who actually witnessed the entire transaction, 96 the testimony of the
informant may be dispensed with as it will merely be corroborative of the apprehending officers'
eyewitness testimonies. 97 There is no need to present the informant in court where the sale was actually
witnessed and adequately proved by prosecution witnesses. 98
The inconsistencies in P03 Manlangit's and SPO1 Badua's testimonies and the other police officers'
testimonies are minor and do not detract from the veracity and weight of the prosecution evidence.
The source of the money for the buy-bust operation is not a critical fact in the case at bar. It is
enough that the prosecution proved that money was paid to accused-appellant Doria in
consideration of which he sold and delivered the marijuana.
Contrary to accused-appellant Doria's claim, the one kilo of marijuana "sold" by him to PO3
Manlangit was actually identified by PO3 Manlangit himself before the trial court. After appellants'
apprehension, the Narcom agents placed this one (1) brick of marijuana recovered from appellant
Doria inside the carton box lumping it together with the ten (10) bricks inside. This is why the carton
box contained eleven (11) bricks of marijuana when brought before the trial court. The one (1) brick
recovered from appellant Doria and each of the ten (10) bricks, however, were identified and marked
in court. Thus:
ATTY. ARIAS, Counsel for Florencio Doria:
Mr. Police Officer, when you identified that box,. Tell the court, how
were you able to identify that box?
A This is the box that I brought to the crime laboratory which
contained the eleven pieces of marijuana brick we confiscated from
the suspect, sir.
Q Please open it and show those eleven bricks.
PROSECUTOR Witness bringing out from the said box. . .
ATTY. VALDEZ, Counsel for Violeta Gaddao:
Your Honor, I must protest the line of questioning considering the fact
that we are now dealing with eleven items when the question posed
to the witness was what was handed to him by Jun?
COURT So be it.
ATTY. ARIAS May we make it of record that the witness is pulling out
them after item from the box showed to him and brought in front of
him.
COURT Noted.
Q Now tell the court, how did you know that those are the eleven
bricks?
xxx xxx xxx
A I have markings on these eleven bricks, sir.
Q Point to the court, where are those markings?
A Here, sir, my signature, my initials with the date, sir.
PROSECUTOR Witness showed a white wrapper and pointing to
CLM and the signature.
Q Whose signature is that?
ATTY. VALDEZ Your Honor, may we just limit the inquiry to the basic
question of the fiscal as to what was handed to him by the accused
Jun, your Honor?
PROSECUTOR Your Honor, there is already a ruling by this
Honorable Court, your Honor, despite reconsideration.
COURT Let the prosecution do its own thing and leave the
appreciation of what it has done to the court.
ATTY. VALDEZ We submit, your Honor.
A This brick is the one that was handed to me by the suspect Jun, sir.
COURT Why do you know that that is the thing? Are you sure that is
not "tikoy?"
A Yes, your Honor.
Q What makes you so sure?
A I am sure that this is the one, your Honor. This is the Exhibit "A"
which I marked before I brought it to the PCCL, your Honor.
Q What are you sure of?
A I am sure that this is the brick that was given to me by one alias
Jun, sir.
Q What makes you so sure?
A Because I marked it with my own initials before giving it to the
investigator and before we brought it to the PCCL, your Honor.
xxx xxx xxx
PROSECUTOR May we request that a tag be placed on this white
plastic bag and this be marked as Exhibit "D?"
COURT Mark it as Exhibit "D."
Q To stress, who made the entries of this date, Exhibit "A" then the
other letters and figures on this plastic?
A This one, the signature, I made the signature, the date and the time
and this Exhibit "A."
Q How about this one?
A I don't know who made this marking, sir.
PROSECUTOR May it be of record that this was just entered this
morning.
Q I am asking you about this "itim" and not the "asul."
A This CLM, the date and the time and the Exhibit "A," I was the one
who made these markings, sir.
PROSECUTOR May we place on record that the one that was
enclosed. . .
ATTY. ARIAS Your Honor, there are also entries included in that
enclosure where it appears D-394-95 also Exhibit "A," etc. etc., that
was not pointed to by the witness. I want to make it of record that
there are other entries included in the enclosure.
COURT Noted. The court saw it.
Q Now, and this alleged brick of marijuana with a piece of paper, with
a newspaper wrapping with a piece of paper inside which reads: "D394-95, Exhibit A, 970 grams SSL" be marked as our Exhibit "D-2?"
COURT Tag it. Mark it.
Q This particular exhibit that you identified, the wrapper and the
contents was given to you by whom?
A It was given to me by suspect Jun, sir.
Q Whereat?
A At the corner of Boulevard and Jacinto St., sir.
Q How about the other items that you were able to recover?
xxx xxx xxx
A These other marijuana bricks, because during our follow-up,
because according to Jun the money which I gave him was in the
hands of Neneth and so we proceeded to the house of Neneth, sir.
xxx xxx xxx 99
The first brick identified by P03 Manlangit was the brick of marijuana "given to [him] by suspect Jun"
at the corner of Boulevard and Jacinto Streets. This brick, including the newspaper and white plastic
wrapping were marked as Exhibits "D," "D-l," and "D-2" and described as weighing nine hundred
seventy (970) grams. 100
We also reject appellant's submission that the fact that P03 Manlangit and his team waited for
almost one hour for appellant Doria to give them the one kilo of marijuana after he "paid" P1,600.00
strains credulity. Appellant cannot capitalize on the circumstance that the money and the marijuana
in the case at bar did not change hands under the usual "kaliwaan" system. There is no rule of law
which requires that in "buy-bust" operations there must be a simultaneous exchange of the marked
money and the prohibited drug between the poseur- buyer and the pusher.101 Again, the decisive fact
is that the poseur-buyer received the marijuana from the accused-appellant. 102
We also hold that the warrantless arrest of accused-appellant Doria is not unlawful. Warrantless
arrests are allowed in three instances as provided by Section 5 of Rule 113 of the 1985 Rules on
Criminal Procedure, to wit:
(c) When the person to be arrested is a prisoner who escaped from a penal
xxx xxx xxx 103
Under Section 5 (a), as above-quoted, a person may be arrested without a warrant if he "has
committed, is actually committing, or is attempting to commit an offense." Appellant Doria
was caught in the act of committing an offense. When an accused is apprehended
in flagrante delicto as a result of a buy-bust operation, the police are not only authorized but
duty-bound to arrest him even without a warrant. 104
The warrantless arrest of appellant Gaddao, the search of her person and residence, and the
seizure of the box of marijuana and marked bills are different matters.
Our Constitution proscribes search and seizure without a judicial warrant and any evidence obtained
without such warrant is inadmissible for any purpose in any proceeding. 105 The rule is, however, not
absolute. Search and seizure may be made without a warrant and the evidence obtained therefrom may
be admissible in the following instances: 106 (1) search incident to a lawful arrest;107 (2) search of a
moving motor vehicle; 108 (3) search in violation of customs laws; 109(4) seizure of evidence in plain
view; 110 (5) when the accused himself waives his right against unreasonable searches and seizures. 111
The prosecution admits that appellant Gaddao was arrested without a warrant of arrest and the
search and seizure of the box of marijuana and the marked bills were likewise made without a
search warrant. It is claimed, however, that the warrants were not necessary because the arrest was
made in "hot pursuit" and the search was an incident to her lawful arrest.
To be lawful, the warrantless arrest of appellant Gaddao must fall under any of the three (3)
instances enumerated in Section 5 of Rule 113 of the 1985 Rules on Criminal Procedure as
aforequoted. The direct testimony of PO3 Manlangit, the arresting officer, however shows otherwise:
ATTY. VALDEZ, Counsel for appellant Gaddao:
We submit at this juncture, your Honor, that there will be no basis for
that question.
Q This particular exhibit that you identified, the wrapper and the
contents was given to you by whom?
A It was given to me by suspect Jun, sir.
Q Whereat?
A At the corner of Boulevard and Jacinto Street, sir.
Q How about, the other items that you were able to recover?
ATTY. VALDEZ: We submit at this juncture, your Honor, that there will
be no basis for that question.
COURT There is. Answer.

A These other marijuana bricks, because during our follow-up,
because according to Jun the money which I gave him was in the
hands of Neneth and so we proceeded to the house of Neneth, sir.
Q Whereat?
A At Daang Bakal near the crime scene at Shaw Boulevard, sir.
Q And what happened upon arrival thereat?
A We saw alias Neneth inside the house and we asked him to give us
the buy-bust money, sir.
Q You mentioned "him?"
A Her, sir. We asked her to give us the money, the marked money
which Jun gave her, sir.
Q And what happened?
A At this instance, it was SPO1 Badua who can testify regarding this
buy-bust money, sir.
xxx xxx xxx 112
SPO1 Badua testified on cross-examination that:
Q What was your intention in going to the house of Aling Neneth?
A To arrest her, sir.
Q But the fact is, Mr. Witness, when you reached the house of Aling
Neneth, Aling Neneth was there?
A Yes, sir.
Q As far as you can see, she was just inside her house?
A I saw her outside, sir.
Q She was fetching water as a matter of fact?
A She was 'sa bandang poso.'
Q Carrying a baby?
A No, sir.
Q At that particular time when you reached the house of Aling Neneth
and saw her outside the house, she was not committing any crime,
she was just outside the house?
A No, sir.
Q She was not about to commit any crime because she was just
outside the house doing her daily chores. Am I correct?
A I just saw her outside, sir.
Q And at that point in time you already wanted to arrest her. That is
correct, is it not?
A Yes, sir.
Q Now, if any memory of your testimony is correct, according to you
SPO1 Manlangit approached her?
A PO3 Manlangit, sir.
Q You did not approach her because P03 Manlangit approached her?
A Yes, sir.
Q During all the time that this confrontation, arrest or whatever by
SPO3 Manlangit was taking place, you were just in the side lines?
A I was just watching, sir.
Q So you were just an on-looker to what Manlangit was doing,
because precisely according to you your role in this buy-bust
operation was as a back-up?
A Yes, sir.
Q Who got the alleged marijuana from inside the house of Mrs.
Neneth?
A P03 Manlangit, sir.
Q Manlangit got the marijuana?
A Yes, sir.
Q And the money from Aling Neneth?
A I don't know, sir.

Q You did not even know who got the money from Aling Neneth?
PROSECUTOR:
There is no basis for this question, your Honor. Money, there 's no
testimony on that.
ATTY. VALDEZ:
I was asking him precisely.
PROSECUTOR:
No basis.
COURT:
Sustained.
Q Alright. I will ask you a question and I expect an honest answer.
According to the records, the amount of P1,600.00 was recovered
from the person of Aling Neneth. That's right?
A Yes, sir, the buy-bust money.
Q What you are now saying for certain and for the record is the fact
that you were not the one who retrieved the money from Aling
Neneth, it was Manlangit maybe?
A I saw it, sir.
Q It was Manlangit who got the money from Aling Neneth?
A The buy-bust money was recovered from the house of Aling
Neneth, sir.
Q It was taken from the house of Aling Neneth, not from the person of
Aling Neneth. Is that what you are trying to tell the Court?
A No, sir.
ATTY. VALDEZ:
I am through with this witness, your Honor. 113
Accused-appellant Gaddao was not caught red-handed during the buy-bust operation to give ground
for her arrest under Section 5 (a) of Rule 113. She was not committing any crime. Contrary to the
finding of the trial court, there was no occasion at all for appellant Gaddao to flee from the policemen
to justify her arrest in "hot pursuit."114 In fact, she was going about her daily chores when the policemen
pounced on her.
Neither could the arrest of appellant Gaddao be justified under the second instance of Rule 113.
"Personal knowledge" of facts in arrests without warrant under Section 5 (b) of Rule 113 must be
based upon "probable cause" which means an "actual belief or reasonable grounds of
suspicion." 115 The grounds of suspicion are reasonable when, in the absence of actual belief of the
arresting officers, the suspicion that the person to be arrested is probably guilty of committing the offense,
is based an actual facts, i.e., supported by circumstances sufficiently strong in themselves to create the
probable cause of guilt of the person to be arrested. 116 A reasonable suspicion therefore must be founded
on probable cause, coupled with good faith on the part of the peace officers making the arrest. 117
Accused-appellant Gaddao was arrested solely on the basis of the alleged identification made by her
co-accused. PO3 Manlangit, however, declared in his direct examination that appellant Doria named
his co-accused in response to his (PO3 Manlangit's) query as to where the marked money
was. 118 Appellant Doria did not point to appellant Gaddao as his associate in the drug business, but as
the person with whom he left the marked bills. This identification does not necessarily lead to the
conclusion that appellant Gaddao conspired with her co-accused in pushing drugs. Appellant Doria may
have left the money in her house, 119 with or without her knowledge, with or without any conspiracy. Save
for accused-appellant Doria 's word, the Narcom agents had no reasonable grounds to believe that she
was engaged in drug pushing. If there is no showing that the person who effected the warrantless arrest
had, in his own right, knowledge of facts implicating the person arrested to the perpetration of a criminal
offense, the arrest is legally objectionable. 120
Since the warrantless arrest of accused-appellant Gaddao was illegal, it follows that the search of
her person and home and the subsequent seizure of the marked bills and marijuana cannot be
deemed legal as an incident to her arrest. This brings us to the question of whether the trial court
correctly found that the box of marijuana was in plain view, making its warrantless seizure valid.
Objects falling in plain view of an officer who has a right to be in the position to have that view are
subject to seizure even without a search warrant and maybe introduced in evidence. 121 The "plain
view" doctrine applies when the following requisites concur: (a) the law enforcement officer in search of
the evidence has a prior justification for an intrusion or is in a position from which he can view a particular
area; (b) the discovery of the evidence in plain view is inadvertent; (c) it is immediately apparent to the
officer that the item he observes may be evidence of a crime, contraband or otherwise subject to
seizure. 122 The law enforcement officer must lawfully make an initial intrusion or properly be in a position
from which he can particularly view the area. 123 In the course of such lawful intrusion, he came
inadvertently across a piece of evidence incriminating the accused. 124 The object must be open to eye
and
hand 125 and its discovery inadvertent. 126
It is clear that an object is in plain view if the object itself is plainly exposed to sight. The difficulty
arises when the object is inside a closed container. Where the object seized was inside a closed
package, the object itself is not in plain view and therefore cannot be seized without a warrant.
However, if the package proclaims its contents, whether by its distinctive configuration, its
transparency, or if its contents are obvious to an observer, then the contents are in plain view and
may be seized. 127 In other words, if the package is such that an experienced observer could infer from its
appearance that it contains the prohibited article, then the article is deemed in plain view. 128 It must be
immediately apparent to the police that the items that they observe may be evidence of a crime,
contraband or otherwise subject to seizure. 129
PO3 Manlangit, the Narcom agent who found the box, testified on cross-examination as follows:
ATTY. VALDEZ:
So here we are. When you and Badua arrived, Aling Neneth was
inside the house?
A Yes, sir.
Q Badua demanded from Aling Neneth the buy-bust money?
A Yes, sir.
Q At that particular instance, you saw the carton?
A Yes, sir.
Q This carton, according to you was under a table?
A Yes, sir, dining table.
Q I noticed that this carton has a cover?
A Yes, sir.
Q I ask you were the flaps of the cover raised or closed?
A It was open, sir. Not like that.
COURT
Go down there. Show to the court.
INTERPRETER
Witness went down the witness stand and approached a carton box.
A Like this, sir.
PROSECUTOR
Can we describe it?
ATTY. VALDEZ
Yes.
PROSECUTOR
One flap is inside and the other flap is standing and with the contents
visible.
COURT
Noted.
Q At this juncture, you went inside the house?
A Yes, sir.
Q And got hold of this carton?
A Yes, sir.
Q Did you mention anything to Aling Neneth?
A I asked her, what's this. . .
Q No, no. no. did you mention anything to Aling Neneth before getting
the carton?
A I think it was Badua who accosted Aling Neneth regarding the buybust money and he asked "Sa iyo galing ang marijuanang ito, nasaan
ang buy-bust money namin?" sir.
Q Making reference to the marijuana that was given by alias Jun?
A Yes, sir.
Q When you proceeded to take hold of this carton, Aling Neneth was
not yet frisked, is it not [sic]?
A I just don't know if she was frisked already by Badua, sir.
Q Who got hold of this?
A I was the one, sir.
Q You were the one who got this?
A Yes, sir.
Q At that particular point in time, you did not know if the alleged buybust money was already retrieved by Badua?
A Yes, sir.
Q You went inside the house?
A Yes, sir.
Q You did not have any search warrant?
A Yes, sir.
Q In fact, there was nothing yet as far as you were concerned to
validate the fact that Mrs. Gadao was in possession of the buy-bust
money because according to you, you did not know whether Badua
already retrieved the buy-bust money from her?
A Yes, sir.
Q How far was this from the door?
A Two and a half meters from the door, sir. It was in plain view.
Q Under the table according to you?
A Yes, sir, dining table.
Q Somewhere here?
A It's far, sir.
PROSECUTOR
May we request the witness to place it, where he saw it?
A Here, sir.
Q What you see is a carton?
A Yes, sir, with plastic.
Q Marked "Snow Time Ice Pop?
A Yes, sir.
Q With a piece of plastic visible on top of the carton?
A Yes, sir.
Q That is all that you saw?
A Yes, sir.
PROSECUTOR
For the record, your Honor. . .
Q You were only able to verify according to you . . .
PRESECUTOR
Panero, wait. Because I am objecting to the words a piece of plastic.
By reading it . . .
ATTY. VALDEZ
That's a piece of plastic.
PROSECUTOR
By reading it, it will connote . . . this is not a piece of plastic.
ATTY. VALDEZ
What is that? What can you say, Fiscal? I'm asking you?
PROSECUTOR
With due respect, what I am saying is, let's place the size of the
plastic. A piece of plastic may be big or a small one, for record
purposes.
COURT
Leave that to the court.
PROSECUTOR
Leave that to the court.
Q The only reason according to you, you were able to . . . Look at
this, no even Superman . . . I withdraw that. Not even a man with very
kin [sic] eyes can tell the contents here. And according to the Court, it
could be "tikoy," is it not [sic]?
A Yes, sir.
Q Siopao?
A Yes, sir.
Q Canned goods?
A Yes, sir.
Q It could be ice cream because it says Snow Pop, Ice Pop?
A I presumed it was also marijuana because it may . . .
Q I am not asking you what your presumptions are. I'm asking you
what it could possibly be.
A It's the same plastic, sir.
ATTY. VALDEZ
I'm not even asking you that question so why are you voluntarily
saying the information. Let the prosecutor do that for you.
COURT
Continue. Next question.
xxx xxx xxx 130
P03 Manlangit and the police team were at appellant Gaddao's house because they were led
there by appellant Doria. The Narcom agents testified that they had no information on
appellant Gaddao until appellant Doria name her and led them to her. 131 Standing by the door
of appellant Gaddao's house, P03 Manlangit had a view of the interior of said house. Two and a
half meters away was the dining table and underneath it was a carton box. The box was partially
open and revealed something wrapped in plastic.
In his direct examination, PO3 Manlangit said that he was sure that the contents of the box were
marijuana because he himself checked and marked the said contents. 132 On cross-examination,
however, he admitted that he merely presumed the contents to be marijuana because it had the same
plastic wrapping as the "buy-bust marijuana." A close scrutiny of the records reveals that the plastic
wrapper was not colorless and transparent as to clearly manifest its contents to a viewer. Each of the ten
(10) bricks of marijuana in the box was individually wrapped in old newspaper and placed inside plastic
bags white, pink or blue in color. 133 PO3 Manlangit himself admitted on cross-examination that the
contents of the box could be items other than marijuana. He did not know exactly what the box contained
that he had to ask appellant Gaddao about its contents. 134 It was not immediately apparent to PO3
Manlangit that the content of the box was marijuana. The marijuana was not in plain view and its seizure
without the requisite search warrant was in violation of the law and the Constitution. 135 It was fruit of the
poisonous tree and should have been excluded and never considered by the trial court. 136
The fact that the box containing about six (6) kilos of marijuana 137 was found in the house of accusedappellant Gaddao does not justify a finding that she herself is guilty of the crime charged. 138 Apropos is
our ruling in People v. Aminnudin, 139 viz:
The Court strongly supports the campaign of the government against drug addiction
and commends the efforts of our law enforcement officers against those who would
inflict this malediction upon our people, especially the susceptible youth. But as
demanding as this campaign may be, it cannot be more so than the compulsions of
the Bill of Rights for the protection of the liberty of every individual in the realm,
including the basest of criminals. The Constitution covers with the mantle of its
protection the innocent and the guilty alike against any manner of high-handedness
from the authorities, however praiseworthy their intentions.
Those who are supposed to enforce the law are not justified in disregarding the right
of the individual in the name of order. Order is too high a price for the loss of liberty.
As Justice Holmes, again, said, 'I think it a less evil that some criminals should
escape than that the government should play an ignoble part.' It is simply not allowed
in the free society to violate a law to enforce another, especially if the law violated is
the Constitution itself. 140
Section 4 of Republic Act No. 6425, the Dangerous Drugs Act of 1972, as amended by Section 13 of
Republic Act No. 7659 punishes the "sale, administration, delivery, distribution and transportation of
a prohibited drug" with the penalty of reclusion perpetua to death and a fine ranging from
P500,000.00 to P10 million, to wit:
Sec. 4. Sale, Administration, Delivery, Distribution and Transportation of Prohibited
Drugs. The penalty of reclusion perpetua to death, and a fine ranging from five
hundred thousand pesos to ten million pesos shall be imposed upon any person
who, unless authorized by law, shall sell, administer, deliver, give away to another,
distribute, dispatch in transit or transport any prohibited drug, or shall act as a broker
in any of such transactions.
xxx xxx xxx
In every prosecution for illegal sale of dangerous drugs, what is material is the submission of
proof that the sale took place between the poseur-buyer and the seller thereof and the
presentation of the drug, i.e., thecorpus delicti, as evidence in court. 141 The prosecution has
clearly established the fact that in consideration of P1,600.00 which he received, accusedappellant Doria sold and delivered nine hundred seventy (970) grams of marijuana to PO3
Manlangit, the poseur-buyer. The prosecution, however, has failed to prove that accusedappellant Gaddao conspired with accused-appellant Doria in the sale of said drug. There being
no mitigating or aggravating circumstances, the lower penalty of reclusion perpetua must be
imposed. 142
IN VIEW WHEREOF, the decision of the Regional Trial Court, Branch 156, Pasig City acting as a
Special Court in Criminal Case No. 3307-D is reversed and modified as follows:
1. Accused-appellant Florencio Doria y Bolado is sentenced to suffer the penalty of reclusion
perpetua and to pay a fine of five hundred thousand pesos (P500,000.00).
2. Accused-appellant Violeta Gaddao y Catama is acquitted.

SO ORDERED.
G.R. No. 131492
September 29, 2000
ROGER POSADAS, ROSARIO TORRES-YU, and MARICHU LAMBINO, petitioners,

vs.
THE HON. OMBUDSMAN, THE SPECIAL PROSECUTOR, and ORLANDO V.
DIZON, respondents.
MENDOZA, J.:
Dennis Venturina, a member of Sigma Rho at the University of the Philippines, was killed in a rumble
between his fraternity and another fraternity on December 8, 1994. In a letter dated December 11,
1994, petitioner Roger Posadas, then Chancellor of U.P. Diliman in Quezon City, asked the Director
of the National Bureau of Investigation for assistance in determining the persons responsible for the
crime. In response to the request, respondent Orlando V. Dizon, Chief of the Special Operations
Group of the NBI, and his men went to U.P. on December 12 and, on the basis of the supposed
positive identification of two alleged eyewitnesses, Leandro Lachica and Cesar Mangrobang, Jr.,
attempted to arrest Francis Carlo Taparan and Raymundo Narag, officers/members of the Scintilla
Juris Fraternity, as suspects in the killing of Venturina. It appears that the two suspects had come
that day to the U.P. Police Station for a peace talk between their fraternity and the Sigma Rho
Fraternity.
Petitioners Posadas, Marichu Lambino, and Rosario Torres-Yu, also of U.P., and a certain Atty.
Villamor, counsel for the suspects, objected on the ground that the NBI did not have warrants of
arrest with them. Posadas and Atty. Villamor promised to take the suspects to the NBI Office the next
day. As a result of their intervention, Taparan and Narag were not arrested by the NBI agents on that
day.1 However, criminal charges were filed later against the two student suspects. 2
Dizon then filed a complaint in the Office of the Special Prosecutor, charging petitioners Posadas,
Torres-Yu, Lambino, Col. Eduardo Bentain, Chief of the Security Force of the U.P. Police, and Atty.
Villamor with violation of P.D. 1829,3 which makes it unlawful for anyone to obstruct the
apprehension and prosecution of criminal offenders.
On May 18, 1995, an information4 was filed against them, alleging that:
That on or about December 12, 1994 and for sometime prior or subsequent thereto, in
Quezon City, Philippines, and within the jurisdiction of this Honorable Court, above-named
accused, namely: ROGER POSADAS, Chancellor; ROSARIO YU Vice Chancellor; ATTY.
MARICHU LAMBINO Asst. Legal Counsel; and COL. EDUARDO BENTAIN Chief,
Security Force, all of the University of the Philippines, Diliman, Quezon City, all public
officers, while in the performance of their respective official functions, taking advantage of
their official duties and committing the crime in relation to their office, conspiring and
confederating with each other and with a certain ATTY. VILLAMOR, did then and there
wilfully, knowingly and criminally obstruct, impede and frustrate the apprehension of
FRANCIS CARLO TAPARAN and RAYMUNDO NARAG, both principal suspects involved in
the brutal killing of DENNIS VENTURINA, a U.P. graduating student and Chairperson of the
UP College of Administration, Student Council, and delaying the investigation and
prosecution of the said heinous case by harboring and concealing said suspects thus,
leading to the successful escape of suspects Narag and another principal suspect JOEL
CARLO DENOSTA; that said above acts were done by the above-named accused public
officials despite their full knowledge that said suspects were implicated in the brutal slaying
of said Dennis Venturina, thus preventing the suspects arrest, prosecution and conviction.
CONTRARY TO LAW.
Later, on motion of petitioners, the Special Prosecutor's Office recommended the dismissal of the
case. But the recommendation was disapproved. In a memorandum, dated September 8, 1997, the
Office of the Ombudsman directed the Special Prosecutor to proceed with the prosecution of
petitioners in the Sandiganbayan. Hence this petition for certiorari and prohibition to set aside the
resolution of the Ombudsman's office ordering the prosecution of petitioners.
Petitioners contend that:
I. THE HONORABLE OMBUDSMAN COMMITTED GRAVE ABUSE OF DISCRETION
WHEN HE RULED THAT: 1) STUDENTS COULD BE ARRESTED WITHOUT WARRANT
ON MERE SUSPICION; 2) PD 1829 INCLUDES ARRESTS WITHOUT WARRANTS ON
MERE SUSPICION; AND WHEN HE REVERSED THE FINDINGS AND RESOLUTION OF
THE SPECIAL PROSECUTION OFFICER, THE DEPUTY SPECIAL PROSECUTOR AND
THE SPECIAL PROSECUTOR, WHO CONDUCTED THE REINVESTIGATION OF THE
CASE; AND FINALLY WHEN HE RESOLVED THAT PETITIONERS SHOULD BE
SUBJECTED TO PUBLIC TRIAL WHEN THERE IS NO PROBABLE CAUSE AND NO
BASIS.
II. SECTION 1, PARAGRAPH C OF PRESIDENTIAL DECREE NO. 1829 IS
UNCONSTITUTIONAL.5
Two issues are raised in this case, to wit: (1) Whether the attempted arrest of the student suspects
by the NBI could be validly made without a warrant; and (2) Whether there was probable cause for
prosecuting petitioners for violation of P.D. No. 1829. We answer these questions in the negative.
First. In view of Art. III, 2 of the Constitution, the rule is that no arrest may be made except by virtue
of a warrant issued by a judge after examining the complainant and the witnesses he may produce
and after finding probable cause to believe that the person to be arrested has committed the crime.
The exceptions when an arrest may be made even without a warrant are provided in Rule 113, 5 of
the Rules of Criminal Procedure which reads:
(b) When an offense has in fact just been committed, and he has personal knowledge of the
facts indicating that the person to be arrested has committed it;
There is no question that this case does not fall under paragraphs (a) and (c). The arresting officers
in this case did not witness the crime being committed. Neither are the students fugitives from justice
nor prisoners who had escaped from confinement. The question is whether paragraph (b) applies
because a crime had just been committed and the NBI agents had personal knowledge of facts
indicating that Narag and Taparan were probably guilty.
Respondents contend that the NBI agents had personal knowledge of facts gathered by them in the
course of their investigation indicating that the students sought to be arrested were the perpetrators
of the crime.6 They invoke the ruling in People v. Tonog, Jr. 7 in which it was held:
It may be that the police officers were not armed with a warrant when they apprehended
Accused-appellant. The warrantless arrest, however, was justified under Section 5 (b), Rule
133 (sic) of the 1985 Rules of Criminal Procedure providing that a peace officer may, without
a warrant, arrest a person "when an offense has in fact just been committed and he has
personal knowledge of facts indicating that the person to be arrested has committed it." In
this case, Pat. Leguarda, in effecting the arrest of Accused-appellant, had knowledge of facts
gathered by him personally in the course of his investigation indicating that Accusedappellant was one of the perpetrators.
In that case, the accused voluntarily went upon invitation of the police officer who later noticed the
presence of blood stains on the pants of the accused. Upon reaching the police station, the accused
was asked to take off his pants for examination at the crime laboratory. The question in that case
involved the admissibility of the maongpants taken from the accused. It is clear that Tonog does not
apply to this case. First, the accused in that case voluntarily went with the police upon the latter's
invitation. Second, the arresting officer found blood stains on the pants of the accused, on the basis
of which he concluded that the accused probably committed the crime for which reason the latter
was taken into custody. Third, the arrest was made on the same day the crime was committed. In the
words of Rule 113, 5(b), the crime had "just been committed" and the arresting officer had
"personal knowledge of the facts indicating that the person to be arrested had committed it."
In contrast, the NBI agents in the case at bar tried to arrest Narag and Taparan four days after the
commission of the crime. They had no personal knowledge of any fact which might indicate that the
two students were probably guilty of the crime. What they had were the supposed positive
identification of two alleged eyewitnesses, which is insufficient to justify the arrest without a warrant
by the NBI.
We have already explained what constitutes "personal knowledge" on the part of the arresting
officers:
"Personal knowledge" of facts in arrests without a warrant under Section 5 (b) of Rule 113
must be based upon "probable cause" which means an "actual belief or reasonable grounds
of suspicion." The grounds of suspicion are reasonable when, in the absence of actual belief
of the arresting officers, the suspicion that the person to be arrested is probably guilty of
committing the offense is based on actual facts, i.e., supported by circumstances sufficiently
strong in themselves to create the probable cause of guilt of the person to be arrested. A
reasonable suspicion therefore must be founded on probable cause, coupled with good faith
on the part of the peace officers making the arrest.8
Indeed, at the time Dennis Venturina was killed, these agents were nowhere near the scene of the
crime. When respondent Dizon and his men attempted to arrest Taparan and Narag, the latter were
not committing a crime nor were they doing anything that would create the suspicion that they were
doing anything illegal. On the contrary, Taparan and Narag, under the supervision of the U.P. police,
were taking part in a peace talk called to put an end to the violence on the campus.
To allow the arrest which the NBI intended to make without warrant would in effect allow them to
supplant the courts. The determination of the existence of probable cause that the persons to be
arrested committed the crime was for the judge to make. The law authorizes a police officer or even
an ordinary citizen to arrest criminal offenders only if the latter are committing or have just committed
a crime. Otherwise, we cannot leave to the police officers the determination of whom to apprehend if
we are to protect our civil liberties. This is evident from a consideration of the requirements before a
judge can order the arrest of suspects. Art. III, 2 of the Constitution provides:
The right of the people to be secure in their persons, houses, papers, and effects against
unreasonable searches and seizures 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.
For the failure of the NBI agents to comply with constitutional and procedural requirements, we hold
that their attempt to arrest Taparan and Narag without a warrant was illegal.
Second. In ordering the prosecution of petitioners for violation of P.D. No. 1829, 1(c), the Office of
the Ombudsman stated in its memorandum dated September 8, 1997:
From the facts adduced, it is submitted that respondents had reasonable ground to suspect
that the SJ members sought to be arrested participated in the clubbing of Dennis Venturina,
eventually leading to the latter's demise. It must be remembered that these SJ members
were positively identified by two eyewitnesses. A reasonably prudent mind could not just
ignore this positive identification. In fact, respondents do not dispute the identification made
on the alleged participants in the clubbing of Dennis Venturina.
Respondent U.P. officials justify their act of barring the apprehending officers from arresting
the SJ members on the ground that the warrantless arrest sought to be effected did not
conform with Sec. 5, Rule 113 of the Rules of Court; thereby averting, what would be in their
opinion, an illegal arrest. While this justification may, at best, show their good faith, it does
not detract from the fact that they had reasonable ground to suspect that the SJ members
sought to be arrested committed the heinous crime of murder as a result of the positive
identification made by two eyewitnesses. Besides, the reliance on the alleged illegality of the
arrest just shows the clear intent, on respondents' part, to wilfully obstruct, frustrate or, at the
least, delay the apprehension and investigation and prosecution of the SJ members
positively identified.
To be sure, respondents knew fully well that inquest proceedings follow warrantless arrests.
It is in this forum where the prosecutor conducting the inquest may rule on their opinion on
whether or not the warrantless arrest effected was valid; he having the quasi-judicial
authority to rule on this matter. Of course, there are various remedies under the law which
respondents may have likewise availed of or resorted to in order to secure the liberty of the
SJ members had the latter been arrested, without prejudice to any criminal or administrative
actions that they may have filed against the arresting NBI agents. However, it appears that
they took the law into their own hands in a manner that obstructed and delayed the
investigation being conducted by a law enforcement agency like the NBI. They facilitated the
escape of the two SJ members pinpointed by eyewitnesses as among those who clubbed to
death Dennis Venturina.9
The question is not whether petitioners had reasonable grounds to believe that the suspects were
guilty. The question is whether the suspects could be arrested even in the absence of a warrant
issued by a court, considering that, as already explained, the attempted arrest did not fall under any
of the cases provided in Rule 113, 5. Regardless of their suspicion, petitioners could not very well
have authorized the arrest without warrant of the students or even effected the arrest themselves.
Only courts could decide the question of probable cause since the students were not being arrested
in flagrante delicto. As the Special Prosecutor stated in his memorandum, dated May 18, 1995, in
recommending the dismissal of the case against petitioners:
All told, the evidence adduced in this case do not show that on the night of December 12, 1994, the
accused knew or had reasonable ground to believe that the students who were then at the U.P.
police headquarters had committed a crime. Neither were the warrantless arrest being sought to be
made on campus that night, legal. The U.P. officials then present had every right to prevent the
commission of illegal arrests of students on campus.
Based on all the foregoing, the obvious conclusion is that, there is no probable cause to charge
Posadas, Torres-Yu, Lambino, Bentain and Atty. Villamor of violating Section 1(c) of P.D. 1829.
Probable cause is defined as "sufficient ground to engender a well founded belief that a crime
cognizable by the court has been committed and that the respondents are probably guilty thereof
and should be held for trial" (Section 1, Rule 12, Rules of Court). The absence of an arrest warrant,
the absence of knowledge or reasonable ground on the part of the accused to believe that the
students had committed a crime, the absence of any law punishing refusal to attend an investigation
at the NBI, all show that there is no sufficient ground to charge the accused with Obstruction of
Justice. On the contrary, the circumstances show that the accused, in safeguarding the rights of
students, were acting within the bounds of law.10
Third. Petitioners are being prosecuted under the following provision of P.D. No. 1829:
SEC. 1. The-penalty of prision correccional in its maximum period, or a fine ranging from
1,000 to 6,000 pesos, or both, shall be imposed upon any person who knowingly or wilfully
obstructs, impedes, frustrates or delays the apprehension of suspects and the investigation
and prosecution of criminal cases by committing any of the following acts:
xxx
xxx
xxx
(c) harboring or concealing, or facilitating the escape of, any person he knows, or has
reasonable ground to believe or suspect, has committed any offense under existing
penal laws in order to prevent his arrest, prosecution and conviction;
The rule, of course, is that a criminal prosecution cannot be enjoined.11 But as has been held,
"[i]nfinitely more important than conventional adherence to general rules of criminal procedure is
respect for the citizen's right to be free not only from arbitrary arrest and punishment but also from
unwarranted and vexatious prosecution."12 As we held in the similar case of Venus v. Desierto:13
Conformably with the general rule that criminal prosecutions may not be restrained either
through a preliminary or final injunction or a writ of prohibition, this Court ordinarily does not
interfere with the discretion of the Ombudsman to determine whether there exists reasonable
ground to believe that a crime has been committed and that the accused is probably guilty
thereof and, thereafter, to file the corresponding information with the appropriate courts.
There are, however, settled exceptions to this rule, such as those enumerated in Brocka v.
Enrile, to wit:
a. To afford protection to the constitutional rights of the accused (Hernandez vs.
Albano, et al. L-19272, January 25, 1967, 19 SCRA 95);
b. When necessary for the orderly administration of justice or to avoid oppression or
multiplicity of actions (Dimayuga, et al. vs. Fernandez, 43 Phil. 304; Hernandez vs.
Albano, supra; Fortun vs. Labang, et al., L-38383, May 27, 1981, 104 SCRA 607);
c. When there is a prejudicial question which is sub judice (De Leon vs. Mabanag, 70
Phil. 202);
d. When the acts of the officer are without or in excess of authority (Planas vs. Gil, 67
Phil. 62);
e. Where the prosecution is under an invalid law, ordinance or regulation (Young vs.
Rafferty, 33 Phil. 556; Yu Cong Eng vs. Trinidad, 47 Phil. 385, 389);
f. When double jeopardy is clearly apparent (Sangalang vs. People and Alvendia,
109 Phil. 1140);
g. Where the court has no jurisdiction over the offense (Lopez vs. City Judge, L25795, October 29, 1966, 18 SCRA 616);
h. Where it is a case of persecution rather than prosecution (Rustia vs. Ocampo, CAG.R. No. 4760, March 25, 1960);
i. Where the charges are manifestly false and motivated by the lust for vengeance
(Recto vs. Castelo, 18 L.J. (1953), cited in Raoa vs. Alvendia, CA G.R. No. 30720R, October 8, 1962; Cf. Guingona, et al. vs. City Fiscal, L-60033, April 4, 1984, 128
SCRA 577);
j. Where there is clearly no prima facie case against the accused and a motion to
quash on that ground has been denied (Salonga vs. Pao, et al., L-59524, February
18, 1985, 134 SCRA 438); and
k. Preliminary injunction has been issued by the Supreme Court to prevent the
threatened unlawful arrest of petitioners (Rodriguez vs. Castelo, L-6374, August 1,
1953) cited in Regalado, Remedial Law Compendium, p. 188, 1988 Ed.)
In this case, petitioners' objection to the arrest of the students cannot be construed as a violation of
P.D. No. 1829, 1(c) without rendering it unconstitutional. Petitioners had a right to prevent the arrest
of Taparan and Narag at the time because their attempted arrest was illegal. Indeed, they could not
have interfered with the prosecution of the guilty parties because in fact petitioner Posadas had
asked the NBI for assistance in investigating the death of Venturina. On the other hand, just because
petitioners had asked for assistance from the NBI did not authorize respondent Dizon and his men to
disregard constitutional requirements.
The Office of the Ombudsman, however, found that the intervention by petitioners resulted in the
escape of the student suspects as petitioner Posadas and Atty. Villamor failed in their undertaking to
surrender the students the following day.14 Hence, the information against them charged that
petitioners willfully obstructed the apprehension of the suspects Taparan and Narag, leading to the
successful escape of these students and another principal suspect, a certain Joel Carlo
Denosta.15 The student suspect mentioned by both the resolution dated May 18, 1995 and the
information, a certain Joel Carlo Denosta, was not one of the students whose arrest by the NBI
agents petitioners prevented on December 12, 1994. Moreover, whether or not petitioner Posadas
surrendered the student suspects to the NBI agents the following day is immaterial. In the first place,
they were not sureties or bondsmen who could be held to their undertaking. In the second place, the
fact remains that the NBI agents could not have validly arrested Taparan and Narag at the U.P.
Police Station as they did not have a warrant at that time. Hence, only the NBI agents themselves
could be faulted for their inability to arrest Taparan and Narag. If the NBI believed the information
given to them by the supposed eyewitnesses, the NBI should have applied for a warrant before
making the attempted arrest instead of taking the law into their own hands. That they chose not to
and were prevented from making an arrest for lack of a warrant is their responsibility alone.
Petitioners could not be held accountable therefor.
We understand that the highly publicized death of Dennis Venturina caused a public clamor to bring
to justice those responsible therefor. We also recognize the pressures faced by law enforcement
agencies to effect immediate arrests and produce results without unnecessary delay. But it must be
remembered that the need to enforce the law cannot be justified by sacrificing constitutional rights.
The absence of probable cause for the filing of an information against petitioners is evident from the
records. They cannot be indicted because they dared to uphold the rights of the students. Hence, we
see no other recourse but to enjoin the Sandiganbayan and the Ombudsman from proceeding with
the case against petitioners.
Fourth. The conclusion we have thus far reached makes it unnecessary to consider petitioners'
challenge to P.D. No. 1829, 1(c). For a cardinal rule of constitutional adjudication is that the Court
will not pass upon a constitutional question although properly presented by the record if the case can
be disposed of on some other ground such as the application of a statute or general law.16
WHEREFORE, the petition is GRANTED and the Ombudsman and his agents are hereby prohibited
from prosecuting petitioners for violation of P.D. No. 1829 1(c) as a result of the incident
complained of in Criminal Case No. 22801 and the Sandiganbayan is ORDERED to dismiss the
information in Criminal Case No. 22801 against petitioners.
SO ORDERED.
G.R. No. 189272
January 21, 2015
PEOPLE OF THE PHILIPPINES, Appellee,

vs.
CHI CHAN LIU a.k.a. CHAN QUE and HUI LAO CHUNG a.k.a. LEOFE SENGLAO, Appellants.
DECISION
PERALTA, J.:
For this Court's consideration is the Decision dated January 9, 2009 and Resolution dated April 24,
2009 of the Court of Appeals (CA) in CAG. R. CR HC No. 00657 affirming the Decision dated June
21, 2004 of the Regional Trial Court (RTC), Branch 44, Mamburao, Occidental Mindoro, in Criminal
Case No. Z-1058, finding appellants guilty beyond reasonable doubt of violating Section 14, Article
III, in relation to Section 21 (a), Article IV of Republic Act (RA) No. 6425, otherwise known as the
Dangerous Drugs Act of 1972, as amended by RA No. 7659.
1
The facts, as culled from the records, are the following:

At 10:00 a.m. of December 3, 1998, SPO2 Lazaro Paglicawan and SPO3 Isagani Yuzon, the
officers-on-duty at the Philippine National Police (PNP) Station, Looc, Occidental Mindoro, received
a radio message from the Barangay Captain of Ambil Island, Looc, Maximo Torreliza, that a
suspicious looking boat was seen somewhere within the vicinity of said island. Immediately
thereafter, the police officers headed towards the specified location wherein they spotted two (2)
boats anchored side by side, one of which resembled a fishing boat and the other, a speed boat.
They noticed one (1) person on board the fishing boat and two (2) on board the speed boat who
were transferring cargo fromthe former to the latter. As they moved closer to the area, the fishing
boat hurriedly sped away. Due to the strong waves, the police officers were prevented from chasing
the same and instead, went towards the speed boat, which seemed to be experiencing engine
trouble. On board the speed boat, the officers found the appellants Chi Chan Liu a.k.a. ChanQue
and Hui Lao Chung a.k.a. Leofe Senglao with several transparent plastic bags containing a white,
crystalline substance they instantly suspected to be the regulated drug, methamphetamine
hydrochloride, otherwise known as "shabu." They requested the appellants to show their
identification papers but appellants failed to do so. Thus, the police officers directed appellants to
transfer to their service boat and thereafter towed appellants speed boat to the shore behind the
Municipal Hall of Looc, Occidental Mindoro. On their way, the police officers testified that appellant
Chi Chan Liu repeatedly offered them "big, big amount of money" which they ignored.
4
Upon reaching the shore, the police officers led the appellants, together with the bags containing the
crystalline substance, to the police station. In the presence of the appellants and Municipal Mayor
Felesteo Telebrico, they conducted an inventory of the plastic bags which were forty five (45) in
number, weighing about a kilo each. Again, SPO3 Yuson requested proper documentation from the
appellants as to their identities as well as to the purpose of their entry in the Philippine
territory. However, the appellants did not answer any of SPO3 Yusons questions. Immediately
thereafter, SPO3 Yuson reported the incident to their superiors, PNP Provincial Command in San
Jose, Occidental Mindoro and PNP Regional Command IV in Camp Vicente Lim, Calamba, Laguna.
The PNP Regional Director General Reynaldo Acop advised them to await his arrival the following
day.
7
10
On December 4, 1998, General Acop arrived together with Colonel Damian on a helicopter. They
talked with Mayor Telebrico and the arresting officers and then brought the appellants with the
suspected illegal drugs to Camp Vicente Lim, Calamba, Laguna, for further investigation. There, the
appellants and the suspected prohibited drugs were turned over to Police Inspector Julieto B. Culili,
of the Intelligence and Investigation Division, PNP, Regional Office IV, who attempted to
communicate with the appellants using "broken" English. According to Inspector Culili, appellant Chi
Chan Liu only kept saying the phrase "call China, big money," giving him a certain cellular phone
number. He allowed appellants to call said number in which they spoke with someone using their
native language, which he could not understand. Because of this difficulty, Inspector Culili sought
the assistance of Inspector Carlito Dimalanta in finding an interpreter who knew either Fookien or
Cantonese.
11
12
13
On December 5, 1998, the interpreter arrived. With the assistance of said interpreter, Inspector Culili
informed and explained to the appellants their rights under Philippine laws inclusive of the right to
remain silent, the right to counsel, as well as the right tobe informed of the charges against them,
and the consequences thereof. Inspector Culili also requested the interpreter to ask the appellants
whether they wanted to avail of said constitutional rights. However, appellants only kept repeating
the phrase "big money, call China." Apart from their names, aliases and personal circumstances, the
appellants did notdivulge any other information. Inspector Culili, with the assistance of the arresting
officers, then prepared the Booking Sheet and Arrest Report of the appellants, requested for their
physical and medical examination, as well as the laboratory examination of the white, crystalline
substance inthe bags seized from them. He also assisted the arresting officers in the preparation of
their affidavits. According to Inspector Culili, moreover,he was able to confirm that the appellants
are Chinese nationals from Guandong, China, based on an earlier intelligence report that foreign
nationals on board extraordinary types of vessels were seen along the sealine of Lubang Island in
Cavite, and Quezon Province.
14
15
16
17
18
Thereafter, Police Inspector Mary Jean Geronimo, PNP Chief Forensic Chemist/Physical Examiner
assigned at the PNP Regional Crime Laboratory Service Office, Camp Vicente Lim, Laguna
conducted an examination of the white, crystalline substance in the forty-five (45) bags seized from
the appellants. After performing three (3) tests thereon, she positively confirmed in her Chemistry
Report that the same is, indeed, methamphetamine hydrochloride, otherwise known as "shabu."
19
20
On December 8, 1998, the Office of the Provincial Prosecutor of Occidental Mindoro filed an
Information with the RTC of Mamburao, Occidental Mindoro, against appellants for violation of
Section 14, Article III, in relation to Section 21 (a), Article IV of RA No. 6425 as amended by RA No.
7659, committed as follows:
21
That on or about 1:00 oclock in the afternoon of December 3, 1998 at the coast of Brgy. Tambo,
Ambil Island in the Municipality of Looc Province of Occidental Mindoro, Philippines and within the
jurisdiction of this Honorable Court, the above-named accused being then the persons not
authorized by law conspiring and mutually helping one another, did then and there wilfully, unlawfully,
feloniously import and bring through the use of sea vessel into the above-mentioned place,
Methamphetamine Hydrochloride known as Shabu contained in forty-five (45) heat-sealed
transparent plastic bags having a total weight of 46,600 grams (46.60 kilograms) placed inside
another forty-five(45) separate self-seling (sic) transparent plastic bags which is prohibited by law, to
the damage and prejudice of public interest.
Appellants pleaded not guilty to the charges against them. Thereafter, trial on the merits ensued,
where the facts earlier stated were testified to by the witnesses for the prosecution, specifically:
SPO2 Paglicawan, SPO3 Yuson, Police Inspector Culili, and Police Inspector Geronimo.
The testimonies of the witnesses for the defense, namely: Jesus Astorga and Fernando Oliva, both
residents of Ambil Island, Leopoldo S. J. Lozada, a former Supervising Crime Photographer of the
PNP, and Godofredo de la Fuente Robles, a Member of the Looc Municipal Council, essentially
maintain that the subject crystalline substance was merely recovered by the apprehending police
officers from the house of Barangay Captain Maximo Torreliza and not actually from the speed boat
the appellants were on.
22
The trial court found appellants guilty beyond reasonable doubt in its Decision dated June 21, 2004,
the dispositive portion of which reads:
WHEREFORE, finding both accused CHI CHAN LIU @ "CHAN QUE" AND HIU LAO CHUNG @
"LEOFE SENG LAO" GUILTY BEYOND REASONABLE DOUBT OF VIOLATING Section 14, Article
III, in relation to Section 21 (a), Article IV as amended by R. A. 7659 known as the Dangerous Drugs
Act of 1972, as amended, the Court hereby sentences each of them to suffer the penalty of
IMPRISONMENT OF RECLUSION PERPETUA and to each pay the FINE of One Million
(Php1,000,000.00) Pesos Philippine Currency, with cost de officio.
SO ORDERED.
23
On appeal, the CA affirmed in toto the Decision of the RTC in its Decision dated January 9, 2009. On
April 24, 2009, it further denied the appellants Motion for Reconsideration in its Resolution finding no
cogent reason to make any revision, amendment, or reversal of its assailed Decision. Hence, the
present appeal raising the following issues:
I.
WHETHER OR NOT ALL THE ELEMENTS OF THE CRIME OF IMPORTATION OF REGULATED
DRUGS PUNISHABLE UNDER SECTION 14, ARTCILE III, IN RELATION TO SECTION 21 (A),
ARTICLE IV OF REPUBLIC ACT 6425, AS AMENDED BY REPUBLIC ACT 7659, ARE PRESENT IN
THIS CASE.
II.
WHETHER OR NOT THE CORPUS DELICTI OF THE CRIME CHARGED HAS BEEN
ESTABLISHED BEYOND REASONABLE DOUBT.
III.
WHETHER OR NOT THE PRESUMPTION OF REGULARITY IN THE PERFORMANCE OF

OFFICIAL DUTIES CAN PREVAIL OVER THE GUARANTEES ENSHRINED AND KEPT SACRED
BY THE PHILIPPINE CONSTITUTION IN THIS CASE.
IV.
WHETHER OR NOT THE ARRAIGNMENT OF ACCUSEDAPPELLANTS IS VALID.
V.
WHETHER OR NOT THE GUILT OF ACCUSED-APPELLANTS WAS PROVEN BEYOND
REASONABLE DOUBT.
24
Appellants maintain that there is no importation of regulated drugs in the instant case since the
elements of the crime of importation, namely: (1) the importation or bringing into the Philippines of
any regulated or prohibited drug; and (2) the importation or bringing into the Philippines of said drugs
was without authority of law, were not established herein. Appellants assert that unless there is proof
that a ship on which illegal drugs came from a foreign country, the offense does not fall within the
ambit of illegal importation of said drugs. Thus, considering the prosecutions failure to prove the
place of origin of the boat on which appellants were apprehended, appellants cannot be convicted of
the crime charged herein.
Appellants also claim that the prosecution failed to substantiate beyond reasonable doubt the corpus
delicti of the crime charged for the chain of custody of the illegal drugs subject of this case was not
sufficiently established. In addition, they emphasize the irregularities attendant in their arrest and
seizure of the illegal drugs in violation of their constitutionally protected rights. Appellants further call
attention to the invalidity of their arraignment for they were not represented by a counsel of their
choice.
This Court finds merit on appellants first argument.
The information filed by the prosecutor against appellants charged appellants with violation of
Section 14, Article III, in relation to Section 21 (a), Article IV of RA No. 6425, otherwise known as the
Dangerous Drugs Act of 1972, as amended by RA No. 7659, which provide:
ARTICLE III
Regulated Drugs
Section 14. Importation of Regulated Drugs. The penalty of imprisonment ranging from six years and
one day to twelve years and a fine ranging from six thousand to twelve thousand pesos shall be
imposed upon any person who, unless authorized by law, shall import or bring any regulated drug
into the Philippines.
xxxx
ARTICLE IV
Provisions of Common Application to Offenses Penalized

under Articles II and III
xxxx
Section 21. Attempt and Conspiracy. The same penalty prescribed by this Act for the commission of
the offense shall be imposed in case of any attempt or conspiracy to commit the same in the
following cases:
a) importation of dangerous drugs;
On the basis of the foregoing provisions, the crime of importation of regulated drugs is committed by
importing or bringing any regulated drug into the Philippines without being authorized by law.
According to appellants, if it is not proven that the regulated drugs are brought into the Philippines
from a foreign origin, there is no importation. In support of this, they cite our ruling in United States v.
Jose, wherein We said that:
25
There can be no question that, unless a ship on which opium is alleged to have been illegally
imported comes from a foreign country, there is no importation. If the ship came to Olongapo from
Zamboanga, for example, the charge that opium was illegally imported on her into the port of
Olongapo, i.e., into the Philippine Islands, could not be sustained no matter how much opium she
had on board or how much was discharged. In order to establish the crime of importation as defined
by the Opium Law, it must be shown that the vessel from which the opium is landed or on which it
arrived in Philippine waters came from a foreign port. Section 4 of Act No. 2381 provides that:
Any person who shall unlawfully import or bring any prohibited drug into the Philippine Islands, or
assist in so doing, shall be punished . . . .
It is clear that a breach of this provision involves the bringing of opium into the Philippine Islands
from a foreign country. Indeed, it is a prime essential of the crime defined by that section. Without it,
no crime under that section can be established.
26
Moreover, the Blacks Law Dictionary defines importation as "the act of bringing goods and
merchandise intoa country from a foreign country." As used in our tariff and customs laws, imported
articles, those which are brought into the Philippines from any foreign country, are subject to duty
upon each importation. Similarly, in a statute controlling the entry of toxic substances and
hazardous and nuclear wastes, importation was construed as the entry of products or substances
into the Philippines through the seaports or airports of entry. Importation then, necessarily connotes
the introduction of something into a certain territory coming from an external source. Logically, if the
article merely came from the same territory, there cannot be any importation of the same.
27
28
29
The CA, in finding that there was importation in the present case, stated:
The prosecution was able to prove beyond reasonable doubt that appellants were, indeed, guilty of
importing regulated drugs into the country in violation of aforesaid law. Appellants were caught by
police authorities in flagrante delictoon board a speedboat carrying forty-five (45) plastic bags of
shabu. The drugsseized were properly presented and identified in court. Appellants admission that
they were Chinese nationals and their penchant for making reference during custodial investigation
to China where they could obtain money to bribe the police officers lead this Court to no other
reasonable conclusion but that China is the country of origin of the confiscated drugs. All elements of
the crime of illegal importation of regulated drugs being present in this case, conviction thereof is in
order.
30
We disagree. The mere fact that the appellants were Chinese nationals as well as their penchant for
making reference to China where they could obtain money to bribe the apprehending officers does
not necessarily mean that the confiscated drugs necessarily came from China. The records only
bear the fact that the speedboat on which the appellants were apprehended was docked on the
coast of Ambil Island in the Municipality of Looc, Occidental Mindoro. But it could have easily come
from some other locality within the country, and not necessarily from China or any foreign port, as
held by the CA. This Court notes that for a vessel which resembles a speed boat, it is rather difficult
to suppose how appellants made their way to the shores of Occidental Mindoro from China.
Moreover, an earlier intelligence report that foreign nationals on board extraordinary types of vessels
were seen along the sealine of Lubang Island in Cavite, and Quezon Province, does not sufficiently
prove the allegation that appellants herein were, in fact, importing illegal drugs in the country from an
external source. This, notwithstanding, had the prosecution presented more concrete evidence to
convince this Court that the prohibited drugs, indeed, came from a source outside of the Philippines,
the importation contention could have been sustained. Appellants exoneration from illegal
importation of regulated drugs under Section 14, Article III of RA No. 6425 does not, however, free
them from all criminal liability for their possession of the same is clearly evident.
At the outset, appellants may argue that as We have ruled in United States v. Jose, possession is
not necessarily included in the charge of importation and thus, they cannot be held liable thereof, to
wit:
31
Counsel for neither of the parties to this action have discussed the question whether, in case the
charge of illegal importation fails, the accused may still be convicted, under the information, of the
crime of illegal possession of opium. We, therefore, have not had the aid of discussion of this
proposition; but, believing that it is a question which might fairly be raised in the event of an acquittal
on the charge of illegal importation, we have taken it up and decided it. Section 29 of the Code of
Criminal Procedure provides that:
The court may find the defendant guilty of any offense, or of any frustrated or attempted offense, the
commission of which is necessarily included inthe charge in the complaint or information.
As will be seen from this provision, to convict of an offense included in the charge in the information
it is not sufficient that the crime maybe included, but it must necessarily be included. While, the case
before us, the possession of the opium by the appellants was proved beyond question and they
might have been convicted of that offense if they have been charged therewith, nevertheless, such
possession was not an essential element of the crime of illegal importation and was not necessarily
included therein. The importation was complete, to say the least, when the ship carrying it anchored
in Subic Bay. It was not necessary that the opium be discharged or that it be taken from the ship. It
was sufficient that the opium was brought into the waters of the Philippine Islands on a boat destined
for a Philippine port and which subsequently anchored in a port of the Philippine Islands with intent
to discharge its cargo. That being the case it is clear that possession, either actual or constructive, is
not a necessary element of the crime of illegal importation nor is it necessarily included therein.
Therefore, in acquitting the appellants of the charge of illegal importation, we cannot legally convict
them of the crime of illegal possession.
32
However, in our more recent ruling in People v. Elkanish, this Court held that possession is inherent
in importation. In that case, the accused, who was suspected of being the owner of sixty-five (65)
large boxes of blasting caps found aboard a ship of American registry docked inside Philippine
territory, was charged with illegal importation of the articles under Section 2702 of the Revised
Administrative Code and illegal possession of the same articles under Section 1 of Act No. 3023, in
two (2) separate informations. Ruling that double jeopardy exists in view of the fact that possession
is necessarily included in importation, this Court affirmed the dismissal of the information on illegal
importation, in the following wise:
33
Section 9 of Rule 113 of the Rules of Court reads:

When a defendant shall have been convicted or acquitted, or the case against him dismissed or
otherwise terminated without the express consent of the defendant, by a court of competent
jurisdiction, upon a valid complaint or information or other formal charge sufficient in form and
substance to sustain a conviction, and after the defendant had pleaded to the charge, the conviction
or acquittal of the defendant or the dismissal of the case shall be a bar to another prosecution for the
offense charged, or for any attempt to commit the same or frustration thereof, or for any offense
which necessarily includes or is necessarily included in the offense charged in the former complaint
or information.
With reference to the importation and possession of blasting caps, it seems plain beyond argument
that the latter is inherent in the former so as to make them juridically identical. There can hardly be
importation without possession. When one brings something or causes something to be brought into
the country, he necessarily has the possession of it. The possession ensuing from the importation
may not be actual, but legal, or constructive, but whatever its character, the importer, in our opinion,
is a possessor in the juristic sense and he is liable to criminal prosecution.If he parts with the
ownership of interest in the article before it reaches Philippine territory, he is neither an importer nor
a possessor within the legal meaning of the term, and he is not subject to prosecution for either
offense under the Philippine Laws. The owner of the merchandise at the time it enters Philippine
water is its importer and possessor. He who puts merchandise on board a vessel and alienates the
title thereto while it is in transit does not incur criminal liability. Possession on ownership of a
prohibited article on a foreign vessel on the high seas outside the jurisdiction of the Philippines does
not constitute a crime triable by the courts of this country. (U.S. vs. Look Chaw, 18 Phil., 573).
34
As We have explained in our more recent ruling above, there is double jeopardy therein since the
offense charged in the information on possession is necessarily included in the information on
importation in view of the fact that the former is inherent in the latter. Thus, this Court sustained the
dismissal of one of the two informations which charged the accused with importation to avoid the
implications of double jeopardy for possession is necessarily included in the charge of importation.
Applying the aforequoted ruling, this Court finds that while appellants cannot be held liable for the
offense of illegal importation charged in the information, their criminal liability for illegal possession, if
proven beyond reasonable doubt, may nevertheless be sustained. As previously mentioned, the
crime of importation of regulateddrugs is committed by importing or bringing any regulated drug into
the Philippines without being authorized by law. Indeed, when one brings something or causes
something to be brought into the country, he necessarily has possession of the same. Necessarily,
therefore, importation can never beproven without first establishing possession, affirming the fact
that possession is a condition sine qua nonfor it would rather be unjust to convict one of illegal
importation of regulated drugs when he is not proven to be in possession thereof.
At this point, this Court notes that charging appellants with illegal possession when the information
filed against them charges the crime of importation does not violate their constitutional right to be
informed of the nature and cause of the accusation brought against them. The rule is that when
there is a variance between the offense charged in the complaint or information, and that proved or
established by the evidence, and the offense as charged necessarily includes the offense proved,
the accused shall be convicted of the offense proved included in that which is charged. An offense
charged necessarily includes thatwhich is proved, when some of the essential elements or
ingredients of the former, as this is alleged in the complaint or information, constitute the latter.
35
36
Indeed, We have had several occasions in the past wherein an accused, charged with the illegal
sale of dangerous drugs, was convicted of illegal possession thereof. In those cases, this Court
upheld the prevailing doctrine that the illegal sale of dangerous drugs absorbs the illegal possession
thereof except if the seller was also apprehended in the illegal possession of another quantity of
dangerous drugs not covered by or not included in the illegal sale, and the other quantity of
dangerous drugs was probably intended for some future dealings or use by the accused. Illegal
possession of dangerous drugs is therefore an element of and is necessarily included in illegal sale.
Hence, convicting the accused with the former does not violate his right to be informed of the
accusation against him for it is an element of the latter.
37
In a similar manner, considering that illegal possession is likewise an element of and is necessarily
included in illegal importation of dangerous drugs, convicting appellants of the former, if duly
established beyond reasonable doubt, does not amount to a violation of their right to be informed of
the nature and cause of accusation against them. Indeed, where an accused is charged witha
specific crime, he is duly informed not only of such specific crime but also of lesser crimes or
offenses included therein.
38
Thus, in view of the fact that illegal possession is an element of and is necessarily included in the
illegal importation of regulated drugs, this Court shall determine appellants culpability under Section
16, Article III of RA No. 6425.
39
The elements of illegal possession of regulated drugs are as follows: (a) the accused is in
possession of an item or object which is identified to be a regulated drug; (b) such possession isnot
authorized by law; and (c) the accused freely and consciously possessed the regulated drug.
40
The evidence on record clearly established that appellants were in possession of the bags
containing the regulated drugs without the requisite authority. As mentioned previously, on the date
of appellants arrest, the apprehending officers were conducting a surveillance of the coast of Ambil
Island in the Municipality of Looc, Occidental Mindoro, upon being informed by the Municipalitys
Barangay Captain that a suspicious-looking boat was within the vicinity. Not long after, they spotted
two (2) boats anchored side by side, the persons on which were transferring cargo from one to the
other. Interestingly, as they moved closer to the area, one of the boats hurriedly sped away. Upon
reaching the other boat, the police officers found the appellants with several transparent plastic bags
containing what appeared to be shabu which were plainly exposed to the view of the officers.
Clearly, appellants were found to be in possession of the subject regulated drugs.
Moreover, this Court is not legallyprepared to accept the version of the appellants that they had
nothing todo with the incident and that they were being framed up as the drugs seized from them
were merely planted by the apprehending officers. At the outset, this Court observes that appellants
did not provide any explanation as tohow the apprehending officers were actually able to plant forty-
five (45) bags of regulated drugs weighing about one (1) kilo each in the speed boat of appellants in
the middle of the ocean without their knowledge. Also, as the trial court noted, they did not even give
any explanation as to the purpose of their presence in the coast of Ambil, Looc, Occidental Mindoro.
More importantly, aside from saying that the confiscated bags of regulated drugs were merely
implanted in their speed boat, they did not provide the court with sufficient evidence to substantiate
their claim. In the words of the lower court:
Moreover, the story of defense witnesses Jesus Astorga, Fernando Oliva, and Godofredo Robles
that the subject shabu were taken only by the police authority from the house of Barangay Captain
Maximo Torreliza taxes only ones credulity. Their testimonies appear to be merely a product of an
[afterthought]. They have not executed any prior affidavit on the matters concerning their testimonies
unlike the prosecution witnesses SPO3 Yuson and SPO2 Paglicawan who executed their joint
affidavit almost immediately after their arrest. It is so apparent from the testimonies of these three (3)
above-named defense witnesses that they [did not] know anything about the case. What is even
worse is that Atty. Evasco, the former counsel of the accused, procured the testimonies of Jesus
Astorga, Fernando Oliva, and Godofredo Reyes. Clear enough their intent or motivation is not for the
truth to come out but for the monetary consideration in exchange of their testimony.
41
This Court has consistently noted that denial or frame up is a standard defense ploy in most
prosecutions for violations of the Dangerous Drugs Law. This defense has been invariably viewed
with disfavor for it can easily be concocted. In order to prosper, the defense of denial and frame-up
must be proved with strong and convincing evidence. Without proof of any intent on the part of the
police officers to falsely impute to appellants the commission of a crime, the presumption of
regularity in the performance of official duty and the principle that the findings of the trial court on the
credibility of witnesses are entitled to great respect, deserve to prevail over the bare denials and
self-serving claims of frame up by appellants.
42
43
Going now to appellants arguments that their criminal liability is negated by certain irregularities in
the proceedings of this case. First and foremost, appellants allegea violation of their constitutional
rights against unreasonable searches and seizures. Due to the absence of probable cause, their
warrantless arrest and consequent search and seizure on their persons and possession is unjustified
and hence, the confiscated bags of regulated drugs therefrom are inadmissible against them.
Section 2, Article III of the Philippine Constitution provides:
Section 2. The right of the people to be secure intheir persons, houses, papers, and effects against
unreasonable searches and seizures 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 besearched and the persons or
things to be seized.
A settled exception, however, to the above guaranteed right is an arrest made during the
commission of a crime, which does not require a previously issued warrant, under Section 5(a), Rule
113 of the Revised Rules on Criminal Procedure, to wit:
Sec. 5. Arrest without warrant; when lawful. A peace officer of a private person may, without a
(a) When, in his presence, the person to be arrested has committed, is actually committing, or is
attempting to commit an offense;
This Court has ruled that for anarrest to fall under the above exception, two (2) elements must be
present: (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 or within the view of the arresting officer.
44
In this case, appellants were actually committing a crime and were caught by the apprehending
officers in flagrante delicto. As previously stated, the records reveal that on the date of their arrest,
the apprehending officers, while acting upon a report from the Barangay Captain, spotted appellants
transferring cargo from one boat to another. However, one of the boats hastily sped away when they
drew closer to the appellants, naturally arousing the suspicion of the officers. Soon after, the police
officers found them with the illegal drugs plainly exposed to the view of the officers. When they
requested appellants to show proper documentation as to their identity as well as their purpose for
being there, appellants refused to show them anything much less respond to any of their questions.
In fact, when the officers were transporting appellants and the illegal drugs to the shore, the
appellant Chi Chan Liu even repeatedly offered the arresting officers "big, big amount of money."
Hence, the circumstances prior to and surrounding the arrest of appellants clearly show that they
were arrested when they were actually committing a crime within the view of the arresting officers,
who had reasonable ground to believe that a crime was being committed.
In addition, this Court does not find the consequent warrantless search and seizure conducted on
appellants unreasonable in view of the fact that the bags containing the regulated drugs were in
plain view of the arresting officers, one of the judicially recognized exceptions to the requirement of
obtaining a search warrant.
Under the plain view doctrine, objects falling in the "plain view" of an officer, who has a right to be in
the position to have that view, are subject to seizure and may be presented as evidence. It applies
when the following requisites concur: (a) the law enforcement officer in search of the evidence has a
prior justification for an intrusion or is in a position from which he can view a particular area; (b) the
discovery of the evidence in plain view is inadvertent; and (c) it is immediately apparent to the officer
that the item he observes may be evidence of a crime, contraband, or otherwise subject to seizure.
The law enforcement officer must lawfully make an initial intrusion or properly be in a position from
which he can particularly view the area. In the course of such lawful intrusion, he came inadvertently
across a piece of evidence incriminating the accused. The object must be open to eye and hand,
and its discovery inadvertent.
45
46
In the case at hand, the apprehending officers were performing their duty of ascertaining whether a
criminal activity was indeed happening at the time and place reported by the Barangay Captain. In
broad daylight, appellants were seen in the act of transferring bags of illegal drugs from one boat to
another and thereafter caught in possession of the same, which became inadvertently and
immediately apparent from the point of view of the arresting officers. It is undeniably clear, therefore,
that the seizure of illegal drugs conducted by the officers falls within the purview of the "plain view"
doctrine. Consequently, the confiscated drugs are admissible as evidence against appellants.
As to appellants assignment of failure on the part of the prosecution to substantiate beyond
reasonable doubt the corpus delictiof the crime charged for the chain of custody of the illegal drugs
was not sufficiently established, the same cannot be sustained as a review of the records of the case
provides otherwise. From the time of appellants arrest, the seized bags of regulated drugs were
properly marked and photographed. Proper inventory was also conducted in the presence of the
appellants and Mayor Telebrico, who signed a receipt evidencing that the confiscated drugs were
turned over to the PNP Regional Headquarters. There, the evidence was sent to the Regional
Crime Laboratory Service Office for an examination which yielded positive results. The laboratory
report, photographs, and receipts were all made part of the records of this case. In fact, the bags
containing the crystalline substance were presented before the trial court during the hearing held on
October 12, 1999 which was identified by SPO3 Yuson, the officer who confiscated the same.
Evidently, an unbroken chain of custody of the confiscated drugs was established by the
prosecution.
47
Appellants also assail the legality of their detention for being formally charged in an Information on
December 8, 1998 or five (5) days after their arrest on December 3, 1998, beyond the thirty-six (36)hour period in Article 125 of the Revised Penal Code. But while the law subjects such public officers
who detain persons beyond the legal period to criminal liability, it must be remembered that the
proceeding taken against the detained persons for the act they committed remains unaffected, for
the two acts are distinct and separate. This Court is nevertheless mindful of the difficult
circumstances faced by the police officersin this case, such as the language barrier, the
unresponsiveness of the appellants, the fact that one of the days fell on a Sunday, as well as the
disparity in the distances between the different offices. But even assuming that the police officers
intentionally delayed the filing of the Information, appellants should havetaken steps to report or file
charges against the officers. Unfortunately, they cannot now rely on administrative short comings
ofpolice officers to get a judgment of acquittal for these do not diminish the fact that illegal drugs
were found in appellants possession.
48
49
50
Anent appellants claim that their constitutional rights were further violated for during custodial
investigation, they did not have counsel of their choice nor were they provided with one, this
deserves scant consideration since the same is relevant and material only when an extrajudicial
admission or confession extracted from an accused becomes the basis of his conviction. In this
case, neither one of the appellants executed an admission or confession. In fact, as the records
clearly show, appellants barely even spoke and merely kept repeating the phrase "call China, big
money." The trial court convicted them not on the basis of anything they said during custodial
investigation but on other convincing evidence such as the testimonies of the prosecution witnesses.
Verily, there was no violation of appellants constitutional right to counsel during custodial
investigation.
51
In this relation, appellants further criticize the legality of the proceedings in saying that during their
arraignment, they were not represented by a counsel of their choice but were merely represented by
a court-appointed government lawyer. Appellants assert that the trial court likewise appointed a
special interpreter, who merely understood a little Chinese language. As such, considering the
absence of any assurance that the interpreter was able to explain to appellants the charges against
them in the language they understood, appellants therefore did not validly enter their plea.
The facts borne by the records of the case, however, militate against the contention of the
appellants. This Court does not find a violation of appellants right to counsel for evenin their own
narration of facts, appellants stated that when they appeared without counsel when the case was
called for arraignment on January19, 1999, the trial court gave appellants time to secure the
services of counsel of their choice. It was only when appellants again appeared without counsel on
February 23, 1999 that the court appointed a counsel from the Public Attorneys Office. It is clear,
1wphi1
52
therefore, that appellants had ample opportunity to secure the services of a counsel of their own
choice. They cannot now assign error in the proceedings conducted by the trial court for the fact
remains that they were appointed with counsel in full compliance with the law.
In much the same way, appellants had every opportunity to secure the services of a Chinese
interpreter with such competence at par with their standards. As pointed out by the CA, the trial court
gave appellants the authorization to seek, through their counsel, the Chinese Embassys assistance
for purposes of procuring a Chinese interpreter. Appellants were even given time, through several
postponements,to properly secure the services of one. If appellants were unsatisfied with the
competence of the court-appointed interpreter, it should have taken the opportunities given by the
trial court. In this relation, the trial courts observations are worth mentioning, to wit:
53
Another factor that militates against the accused is their failure to testify on their own behalf, the
defense is trying to justify for want of Chinese interpreter. The instant case has been filed in Court
since December 8, 1998 or six years more or less until now. It is highly unbelievable that for such
period oftime that this case has been pending in court, accused could not still secure the services of
a Chinese interpreter when as borne out by the records, they were able to secure the services of
several lawyers one after the other. The accused on two (2) occasions have even submitted written
requests in English (Exhibit "N" and Exhibit "O")which were granted by the Court allowing them to
call their relatives but still they failed to secure the services of an interpreter. To the mind of the
Court, accused can also understand English as proven by their letters. x x x
54
Indeed, this Court accords the highest degree of respect to the findings of the lower court as to
appellants guilt of the offense charged against them, especially when such findings are adequately
supported by documentary as well as testimonial evidence. It is a settled policy of this Court,
founded on reason and experience, to sustain the findings of fact of the trial court in criminal cases,
on the rational assumption that it is in a better position to assess the evidence before it, having had
the opportunity to make an honest determination of the witnesses deportment during the trial.
55
Moreover, in view of the well-entrenched rule that the findings of facts of the trial court, as affirmed
by the appellate court, are conclusive on this Court, absent any evidence that both courts ignored,
misconstrued, or misinterpreted cogent facts and circumstances of substance which, if considered,
would warrant a modification or reversal of the outcome of the case, this Court finds no cogent
reason to deviate from the above findings. It is clear, therefore, that based on the findings of the
courts below, appellants were, in fact, in possession of regulated drugs without the requisite
authority.
56
As to the penalty imposed on appellants, Sections 16 and 17 of RA No. 7659, amending RA No.
6425, otherwise known as the Dangerous Drugs Act of 1972, provide:
Sec. 16. Section 16 of Article III of Republic Act No. 6425, as amended, known as the Dangerous
DrugsAct of 1972, is amended to read as follows:
Section 16. Possession or Use of Regulated Drugs. - The penalty of reclusion perpetuato death and
a fine ranging from five hundred thousand pesos to ten million pesos shall be imposed upon any
person who shall possess or use any regulated drug without the corresponding license or
prescription, subject to the provisions of Section 20 hereof.
xxxx
Section 17. Section 20, Article IV of Republic Act No. 6425, as amended, known as the Dangerous
Drugs Act of 1972, is hereby amended to read as follows:
Sec. 20. Application of Penalties, Confiscation and Forfeiture of the Proceeds or Instruments of the
Crime. -The penalties for offenses under Section 3, 4, 7, 8 and 9 of Article II and Sections 14, 14-A,
15 and 16 of Article III of this Act shall be applied if the dangerous drugs involved is in any of the
following quantities:
xxxx
3. 200 grams or more of shabu or methylamphetamine hydrochloride;
From the foregoing, considering that appellants were found to have possessed forty-five (45)
kilograms of methylamphetamine hydrochloride, which is more than the two hundred (200) grams
stipulated above, the imposable penalty is reclusion perpetua, in accordance with R.A. No. 9346,
otherwise known as "An Act Prohibiting the Imposition of Death Penalty in the Philippines." As
regards the fine, We find that the amount of One Million Pesos (P1,000,000.00) for each appellant
imposed by the RTC is proper, in view of the quantity seized from them. WHEREFORE, premises
considered, the instant appeal is DENIED. The Decision dated January 9, 2009 and Resolution
dated April 24, 2009 of the Court of Appeals in CA-G.R. CR HC No. 00657 are AFFIRMED with
MODIFICATION that appellants herein are found GUILTY of the crime of illegal possession of
regulated drugs.
SO ORDERED.
[G.R. No. 136267. July 10, 2001]
THE

ABRENICA CUBCUBIN, JR., accused-appellant.
vs. FIDEL
DECISION
MENDOZA, J.:
This case is here on automatic review of the decision, [1] dated October 5, 1998, of
the Regional Trial Court, Branch 88, Cavite City, finding accused-appellant Fidel
Abrenica Cubcubin, Jr. guilty of murder and sentencing him to suffer the penalty of
death.
The information against accused-appellant alleged:
That on or about August 26, 1997, in the City of Cavite, Republic of the Philippines
and within the jurisdiction of this Honorable Court, the abovenamed accused, armed
with an unlicensed homemade (paltik) Smith and Wesson caliber .38 revolver, with no
serial number, with intent to kill, acting with treachery and evident premeditation and
taking advantage of the darkness of [the] night, did, then and there, willfully,
unlawfully, and feloniously, assault, attack and shoot with the aforesaid unlicensed
firearm a certain HENRY PECHO PIAMONTE, hitting and inflicting upon the latter
gunshot wounds in the head which caused the latters instantaneous death.
CONTRARY TO LAW.[2]
Accused-appellant pleaded not guilty to the charge, whereupon trial on the merits
ensued.
Eight witnesses were presented by the prosecution: police officers Florentino M.
Malinao, Jr., Enrico A. Rosal, Raymundo D. Estoy, Jr., and Virgilio L. Pilapil, all of
whom belong to the Cavite City Police Department; National Bureau of Investigation
ballistician Isabelo D. Silvestre, Jr.; NBI Forensic Chemist II Juliet Gelacio-Mahilum;
Dr. Regalado D. Sosa, City Health Officer II and City Medico-Legal Officer of the
Department of Health (DOH) in Cavite City; and Danet D. Garcellano, a food server
at the Sting Cafe in San Antonio, Cavite City. The testimony of Police Chief Inspector
Edwin G. Nemenzo, Chief of the Records, Firearms and Explosives Division of the
Philippine National Police (PNP) in Camp Crame, Quezon City, was dispensed with
in view of his certification, dated October 7, 1997 (Exh. N), [3] that accused-appellant is
not a licensed/registered holder of firearm of any kind and caliber.
The prosecution evidence is to the following effect:
At about 3:30 in the morning of August 26, 1997, Sgt. Rogel, desk officer of the
Cavite City police station, received a telephone call that a person had been shot near
the cemetery along Julian Felipe Boulevard in San Antonio, Cavite City. For this
reason, a police team, composed of SPO1 Malinao, Jr., PO3 Rosal, PO3 Estoy, Jr.,
PO3 Manicio, and SPO3 Manalo, responded to the call and found Henry P. Piamonte
slumped dead on his tricycle which was then parked on the road. Police photographer
Fred Agana took pictures of the crime scene (Exhs. A, A-1, A-2, and A-3) [4] showing
the victim slumped on the handle of the tricycle. [5] PO3 Rosal testified that a tricycle
driver, who refused to divulge his name, told him that accused-appellant and the
victim were last seen together coming out of the Sting Cafe, located in San Antonio
near the gate of Sangley Point, Cavite City, about a kilometer and a half away from
the crime scene. Forthwith, PO3 Rosal and SPO1 Malinao, Jr. went to the cafe and
talked to Danet Garcellano, a food server/waitress in Sting Cafe. [6] The other
policemen at the police station called up City Prosecutor Agapito Lu who also
proceeded to Sting Cafe. Garcellano told the police investigators that she had seen
accused-appellant arrive at Sting Cafe at about 12:00 midnight and drink beer; that at
about 2:30 a.m., the victim arrived and joined accused-appellant; that the two stayed
in the cafe until 3:30 a.m.; and that she did not know if they left together as she was
serving other customers. Garcellano described accused-appellant as a lean, darkcomplexioned, and mustachioed man who had on a white t-shirt and brown short
pants.[7]
Armando Plata, another tricycle driver, told PO3 Rosal and SPO1 Malinao, Jr. that
Garcellanos description fitted a person known as alias Jun Dulce. Armando Plata, who
knew where accused-appellant lived, led PO3 Rosal, SPO1 Malinao, Jr., and
Prosecutor Lu to accused-appellants house in Garcia Extension, Cavite City. The
policemen knocked on the door for about three minutes before it was opened by a man
who answered the description given by Danet Garcellano and who turned out to be
accused-appellant. The police operatives identified themselves and informed him that
he was being sought in connection with the shooting near the cemetery. Accusedappellant denied involvement in the incident.PO3 Rosal and SPO1 Malinao, Jr. then
asked permission to enter and look around the house. [8]
SPO1 Malinao, Jr. said that upon entering the house, he noticed a white t-shirt,
bearing the brand name Hanes (Exh. H) [9] and the name Dhenvher written in the inner
portion of the shirts hemline, placed over a divider near the kitchen. Upon close
examination, he said that he found it to be bloodied." When he picked up the t-shirt,
two spent .38 caliber shells fell from it. PO3 Rosal stayed with accused-appellant
while he conducted a search. They then took the t-shirt and the two bullet
shells. SPO1 Malinao, Jr. then asked accused-appellant to go with them to Sting Cafe
for purposes of identification. There, accused-appellant was positively identified by
Danet Garcellano as the victims companion. The police investigators asked accusedappellant where the fatal gun was. SPO1 Malinao, Jr. said accused-appellant refused
to tell him where he hid the gun so he sought his (accused-appellants) permission to
go back to his house to conduct a further search. Thereupon, SPO1 Malinao, Jr.,
accompanied by Prosecutor Lu, PO3 Estoy, Jr., PO3 Manicio, SPO3 Manalo, and PO3
Rosal, proceeded thereto.[10] Inside the house, they saw accused-appellants 11-year old
son Jhumar. PO3 Estoy, Jr. found on top of a plastic water container (drum) outside
the bathroom a homemade Smith and Wesson caliber .38 revolver (six shooter),
without a serial number (Exh. F). He found the gun loaded with five live bullets
(Exhs. M, M-1, M-2, M-3, and M-4). PO3 Estoy, Jr. said that he inscribed his initials
RDE (for Raymundo D. Estoy) on the cylinder of the gun with the use of a sharp
object. While PO3 Estoy, Jr. was conducting the search, SPO1 Malinao, Jr. and PO3
Rosal stayed with accused-appellant in the sala. [11] The .38 caliber gun (Exhs. B, B-1),
[12]
the white Hanes t-shirt (Exhs. B-2, B-2-A, B-2-B), [13] and the two spent .38 caliber
shells (Exhs. B-2, B-2-B)[14] were all photographed. Accused-appellant was then taken
to the police station, where he was photographed (Exh. B-3) [15] along with the things
seized from him.
SPO4 Virgilio Pilapil, Chief Investigator of the Criminal Investigation Division,
testified that on August 26, 1997, the case involving the killing of Henry Pecho
Piamonte was forwarded to him by PO3 Rosal together with the evidence consisting
of a bloodstained white Hanes t-shirt, a .38 revolver with five live ammunitions, and
two deformed slugs. After an evaluation of the evidence, he formally filed a criminal
complaint for murder against accused-appellant. He took blood samples of the victim
and submitted the same to the NBI for laboratory examination. [16]
Dr. Regalado Sosa, City Health Officer II and City Medico-Legal Officer of the
Department of Health in Cavite City, conducted a postmortem examination of the
cadaver and prepared an autopsy report (Exh. O) [17] which showed the following
findings:
AUTOPSY REPORT
EXTERNAL FINDINGS:
A medium built fair complexioned male adult human body in its cadaveric state with gunshot
wounds . . . described as follows:
= Gunshot wound, 1.5 cm. x 0.5 cm., oval in shape with powder burns more on top of the
wound to 2.5 cms. elevation/height located at the angle of the right jaw and/or 5 cms. below
the inferior level of the right ear. The wound has irregular and inverted borders. It is directed
inwards fracturing the lower edge of the angle of the right mandible and the lead slug is
embedded at the right lateral portion of the first (1st) cervical vertebrae hence extracted.
= Gunshot wound, 1 cm. in d[iameter] with inverted irregular borders located at the left frontal
region 5 cms. above the temporal end of the left eyebrow. It is directed inwards and
downwards fracturing the bone (frontal) underneath into [the] intracranial cavity.
INTERNAL FINDINGS:
= Presence of circular complete fracture, 0.8 cm. in d[iameter] at the left frontal region.
= The left frontal lobe of the brain is perforated and the frontal lobe is enveloped with liquid
and clotted blood.
= The lead slug is found at the inner surface of the left frontal lobe.
= The right mandibular region was incised near the gunshot wound and the area is severely
hematomatous and explored until a lead slug [was] found at the 1st cervical vertebrae at the
right side.
= Stomach contains liquid and little rice and with alcoholic (beer) smell.
= Other internal organs are significantly normal.
Slugs extracted:
1. 0.6 cm. in d[iameter] lead slug with one end is markedly deformed. The length of the slug is
1.6 cms.
Note: One diagonal incised line was marked on the slug.
2. A 0.7 cm. in d[iameter] lead slug . . . roundly/ovally deformed [on] one end. The length of the
slug is 1.8 cm.
Note: Two diagonal incised lines [were] marked on the said slug.
Dr. Sosa testified that the victim sustained two gunshot wounds (Exh. R), [18] the
first one located on the right jaw below the ear while the second wound located at the
left temporal side above the left eyebrow. The slug from the first gunshot wound
remained at the base of the neck, near the spinal column. There were powder burns,
called tatooing, surrounding the first wound which showed that the victim was shot
point-blank. The second slug was also embedded at the front lobe of the brain. [19] Dr.
Sosa indicated in the Certificate of Death (Exh. Q) that the victim died of shock
secondary to severe intracranial hemorrhage due to multiple gunshot wounds. [20]
Upon written request (Exh. C)[21] of Prosecutor Lu, the NBI conducted a ballistics
examination to determine whether the two slugs taken from the body of the victim
were fired from the firearm recovered from accused-appellant.
Isabelo D. Silvestre, Jr., an NBI ballistician, conducted on September 10, 1997 a
comparative examination of the two evidence bullets, marked as HPP-1 (Exh. E) and
HPP-2 (Exh. E-1), which had been recovered from the victims head and the three test
bullets (Exhs. G, G-1, G-2) fired from the seized .38 caliber firearm. The tests showed
that the evidence bullets were fired from the subject firearm. [22] The empty shells from
the three test bullets fired were duly marked (Exhs. G-3, G-4, G-5). No photographs
were taken. Silvestres findings were confirmed by four other NBI ballisticians: Chief
Ballistician Rogelio Munar, Supervising Ballistician Ernie Magtibay, Senior
Ballistician Elmer Pieded, and, Flor Landicho, another ballistician. The two .38
caliber empty shells recovered from accused-appellant were no longer examined. [23]
Prosecutor Lu also made a written request (Exh. J) [24] for a laboratory examination
of the bloodstains on the white Hanes t-shirt of accused-appellant to determine
whether such were identical to the blood of the victim.
Juliet Gelacio-Mahilum, NBI Forensic Chemist II, testified that on September 26,
1997, she conducted three kinds of laboratory examinations, namely, (a) benzidine
test, to determine the presence of blood; (b) precipitin test, to determine if the
bloodstains came from human or animal blood; and (c) ABO grouping test, to
determine the blood group. When tested and matched together, the bloodstained white
Hanes t-shirt and the blood sample of the victim yielded positive results for human
blood belonging to blood type O (Exh. K).[25]
For its part, the defense presented accused-appellant himself, his son Jhumar, and
his sister Yolanda Cubcubin Padua.
Accused-appellant Fidel Abrenica Cubcubin, Jr. testified that he enlisted in the
Philippine Constabulary as a soldier in 1974 but was discharged in 1977 for being
AWOL. He said he left for Saudi Arabia where he worked as a driver and came back
in 1979. He was later employed as a driver by a friend, who owned a junk shop in
Cavite City. He admitted knowing the victim whom he addressed as Kuya.Accusedappellant testified that from 10:00 in the evening to 12:00 midnight of August 25,
1997, he and some friends played a card game called tong-its on Molina Street, Cavite
City. Afterwards, he proceeded to the Sting Cafe where he had some drinks while
waiting for food to be served. Henry Piamonte, a tricycle driver, arrived and had
drinks with him. After a while, the victim left as a passenger was waiting to be given a
ride. The victim came back to the restaurant before 1:00 a.m. and had another bottle of
beer with accused-appellant. At about 1:30 a.m., the victim again left to transport
another passenger. After that, the victim did not come back anymore. [26]
Accused-appellant said he left Sting Cafe at about 2:00 a.m. and took a tricycle
home to 1151 Garcia Extension, San Antonio, Cavite City. He was sleeping on the
sofa in his bedroom when he was awakened by the arrival of three policemen, two of
them he recognized as SPO1 Malinao, Jr. and PO3 Estoy, Jr., who pointed their guns
at him and told him to lie face down. He said he was handcuffed while the policemen
searched his room, turning the sala set upside down and opening the cabinets. His son,
Jhumar, stood beside him. Before leaving, the policemen took from the clothes stand a
white t-shirt belonging to his son Denver. Accused-appellant said that he did not ask
them why they were searching the place as he was afraid they would maltreat him. He
denied the claim of the policemen that the white t-shirt had blood stains. He claimed
that the policemen did not have any search warrant nor a warrant of arrest when they
took him into custody. Nor did they inform him of his constitutional right to remain
silent and to be assisted by counsel. He also said that he was made to stay in a police
patrol car for almost two hours before he was brought inside the police station. He
denied owning the .38 caliber revolver presented to him by Prosecutor Lu and SPO4
Pilapil or that the same had been recovered from his house. He also denied the
prosecutions claim that he was taken to the Sting Cafe where he was allegedly
identified by Danet Garcellano as the person last seen with the victim before the latter
was killed.[27]
Jhumar Cubcubin, son of accused-appellant, testified that at about 4:00 in the
morning of August 26, 1997, he was sleeping on the second floor of the house when
he was roused from his sleep by loud knocks on the door. When he opened the door,
he saw three policemen who were looking for his father. He told them that his father
was not around, but he was shoved away. They proceeded upstairs to the room of his
father where they took from the clothes stand a white Hanes t-shirt belonging to his
brother Denver. They put his father in a police patrol car waiting outside. Jhumar
immediately went to his aunt, Yolanda Cubcubin Padua, and reported to her what had
happened. He went back to the house and saw some policemen still conducting a
search. As the policemen were about to leave, a van with some other policemen on
board arrived. They asked him where the water container was located. They went
inside the house and, when they came out, one of them announced that he had found a
gun, which was then photographed. Jhumar said that while his father was inside the
police patrol car, his aunt was arguing with the policemen. At that instance, SPO1
Malinao, Jr. spread the t-shirt and told Jhumars aunt Eto, puro dugo damit
niya, although the t-shirt had no bloodstains. He said that he and his father never gave
permission tothe policemen to search their house. [28]
Yolanda Cubcubin Padua, accused-appellants sister, testified that at about 5:30 in
the morning of August 26, 1997, she was told by her nephew, Jhumar, that accusedappellant had been apprehended by some policemen. She and Jhumar then went to the
police patrol car where she saw her brother in handcuffs. She said she protested to the
policemen that there was no evidence that accused-appellant had killed the
victim. Yolanda said she saw the confiscated white Hanes t-shirt, but she claimed the
same did not have any bloodstain on it. She went back to her house to call up her
mother in Gen. Trias, Cavite to let her know what had happened. She then went out to
see accused-appellant and saw Jhumar, who told her that some policemen were
searching accused-appellants house and found a gun. [29]
On October 5, 1998, the trial court rendered its decision finding accused-appellant
guilty of murder. It based its finding on circumstantial evidence, to wit: (1) That Danet
Garcellano, a waitress at the Sting Cafe, saw accused-appellant arrive at about 12:00
midnight of August 25, 1997 and drink beer, while the victim arrived at about 2:30
a.m. of August 26, 1997 and joined accused-appellant in drinking beer at the bar. She
said that she served them beer and they stayed for about an hour, that the two later had
an argument as accused-appellant wanted to have two more bottles of beer which the
victim paid for, and that at about 3:30 a.m., the victim and accused-appellant left and
boarded the victims tricycle; (2) That PO3 Rosal and SPO1 Malinao, Jr. testified that
they saw the lifeless body of the victim, with bullet wounds on his head, slumped on
the handle of his tricycle, that the crime scene was about 50 meters away from the
house of accused-appellant, and that when they were told by an unidentified tricycle
driver that the victim and accused-appellant were seen leaving the Sting Cafe together,
they went to Sting Cafe and interviewed Danet Garcellano who described the
appearance of the victims companion. Armando Plata, another tricycle driver who
knew accused-appellant as the person being described by Garcellano, accompanied
the policemen to the house of accused-appellant; (3) That after SPO1 Malinao, Jr. was
allowed to enter the house, he found a white Hanes t-shirt with bloodstains on it and
also recovered two spent .38 caliber shells; (4) That when accused-appellant was
taken to the Sting Cafe, he was positively identified by Danet Garcellano as the
victims companion moments prior to his death; (5) That when the investigators
returned to the house of accused-appellant, PO3 Estoy, Jr. found a .38 caliber revolver
placed on top of a plastic water container located outside the bathroom; (6) That
laboratory examination conducted by the forensic chemist, Juliet Gelacio-Mahilum,

showed that the bloodstains on the white Hanes t-shirt were human blood, type O,
which matched the blood type of the victim; and (7) That per ballistic examination of
NBI ballistician, Isabelo D. Silvestre, Jr., the two slugs recovered from the head of the
victim were fired from the .38 caliber revolver seized from accused-appellants house.
The trial court rejected accused-appellants alibi, giving full credence to the
testimonies of Danet Garcellano and the police investigators whom it found to have
no motive to falsely implicate accused-appellant. It admitted the prosecution evidence
consisting of the white Hanes t-shirt, two spent shells, and the .38 caliber revolver, on
the ground that these items had been seized as incident to a lawful arrest. It ruled that
since Dr. Sosa testified that the victim was shot point-blank while on his tricycle and
was not in a position to see the assailant, the qualifying circumstance of treachery was
present, not to mention that the victim was unarmed and thus totally defenseless. The
trial court theorized that while the victim was on his tricycle, the assailant went
around and shot him on the left temple. It held that the use of an unlicensed firearm in
killing the victim constituted an aggravating circumstance. Hence, the trial court
found accused-appellant guilty of murder and accordingly imposed on him the penalty
of death. Hence, this appeal.
On April 18, 2000, the Court received a letter, dated April 5, 2000, [30] from Victoria
Abrenica Dulce, mother of accused-appellant, with an attached affidavit of desistance
entitled Sinumpaang Salaysay ng Pag-Uurong, dated November 14, 1997,[31] executed
by Marilou B. Piamonte, widow of the victim, stating that accused-appellant had been
mistakenly identified as the assailant, and, by reason thereof, sought the dismissal of
the criminal case against him. In her letter, Dulce said that the affidavit of desistance
was supposed to be submitted to the trial court prior to the presentation of the
evidence for the prosecution, but, for unknown reasons, the same was not done by
accused-appellants counsel. This affidavit of desistance, however, not being formally
offered before the trial court, has no probative value.
We now consider accused-appellants assignment of errors.
First. Accused-appellant contends that his arrest, effected on August 26, 1997
without a warrant, was illegal. On this point, Rule 113, 5(b) of the 1985 Rules on
Criminal Procedure, as amended, provides:
Sec. 5. Arrest without warrant; when lawful. A peace officer or a private person may,
without a warrant, arrest a person:
(b) When an offense has in fact just been committed, and he has personal knowledge
of facts indicating that the person to be arrested has committed it;
Under 5(b), two conditions must concur for a warrantless arrest to be valid: first,
the offender has just committed an offense and, second, the arresting peace officer or
private person has personal knowledge of facts indicating that the person to be
arrested has committed it. It has been held that personal knowledge of facts in arrests
without a warrant must be based upon probable cause, which means an actual belief or
reasonable grounds of suspicion.[32]
In this case, the arrest of accused-appellant was effected shortly after the victim
was killed. The question, therefore, is whether there was probable cause for PO3
Rosal and SPO1 Malinao, Jr., the arresting officers, to believe that accused-appellant
committed the crime. We hold that there was none. The two did not have personal
knowledge of facts indicating that accused-appellant had committed the crime.Their
knowledge of the circumstances from which they allegedly inferred that accusedappellant was probably guilty was based entirely on what they had been told by
others, to wit: by someone who called the PNP station in San Antonio, Cavite City at
about 3:30 in the morning of August 26, 1997 and reported that a man had been killed
along Julian Felipe Boulevard of the said city; by an alleged witness who saw
accused-appellant and the victim coming out of the Sting Cafe; by Danet Garcellano,
waitress at the Sting Cafe, who said that the man last seen with the victim was lean,
mustachioed, dark-complexioned and was wearing a white t-shirt and a pair of brown
short pants; by a tricycle driver named Armando Plata who told them that the physical
description given by Garcellano fitted accused-appellant, alias Jun Dulce and who
said he knew where accused-appellant lived and accompanied them to accusedappellants house. Thus, PO3 Rosal and SPO1 Malinao, Jr. merely relied on
information given to them by others.
In an analogous case,[33] the police was informed that the accused was involved in
subversive activities. On the basis of this information, the police arrested the accused
and, in the course of the arrest, allegedly recovered an unlicensed firearm and some
subversive materials from the latter. This Court held that the arresting officers had no
personal knowledge since their information came entirely from an informant. It was
pointed out that at the time of his arrest, the accused was not in possession of the
firearm nor engaged in subversive activities. His arrest without a warrant could not be
justified under 5(b).
In another case,[34] the accused, in a case of robbery with rape, were arrested solely
on the basis of the identification given by one of the victims. This Court held the
arrest to be illegal for lack of personal knowledge of the arresting officers. More
recently, in Posadas v. Ombudsman,[35] this Court, in declaring the arrest without warrant of
two University of the Philippines students to be illegal, held:
There is no question that this case does not fall under paragraphs (a) and (c). The
arresting officers in this case did not witness the crime being committed. Neither are
the students fugitives from justice nor prisoners who had escaped from
confinement. The question is whether paragraph (b) applies because a crime had just
been committed and the NBI agents had personal knowledge of facts indicating that
[the students] were probably guilty.
....
[T]he NBI agents in the case at bar tried to arrest [the students] four days after the
commission of the crime. They had no personal knowledge of any fact which might
indicate that the two students were probably guilty of the crime. What they had were
the supposed positive identification of two alleged eyewitnesses, which is insufficient
to justify the arrest without a warrant by the NBI.
Indeed, at the time [the victim] was killed, these [NBI] agents were nowhere near the
scene of the crime.When [the NBI agents] attempted to arrest [the students], the latter
were not committing a crime nor were they doing anything that would create the
suspicion that they were doing anything illegal. On the contrary, [they], under the
supervision of the U.P. police, were taking part in a peace talk called to put an end to
the violence on the campus.
Nor can it be argued that the arresting officers had probable cause to believe
accused-appellant to be guilty of the killing of the victim because they found a
bloodstained t-shirt, a .38 caliber revolver, and two spent .38 caliber shells in his
house. At the time accused-appellant was arrested, he was not doing anything overtly
criminal. The alleged discovery of the gun came after his arrest. Moreover, as will
presently be explained, the objects allegedly seized from accused-appellant were
illegally obtained without a search warrant.
Be that as it may, accused-appellant cannot now question the validity of his arrest
without a warrant.The records show that he pleaded not guilty to the charge when
arraigned on November 11, 1997. It is true that on August 28, 1997, he filed a petition
for reinvestigation in which he alleged that he had been illegally detained without the
benefit of a warrant of arrest. In its order, dated September 9, 1997, the trial court
granted his motion and ordered the City Prosecutor to conduct a preliminary
investigation and submit his findings within thirty (30) days thereof. [36] On October 7,
1997, City Prosecutor Agapito S. Lu moved for the resetting of accused-appellants
arraignment from October 8, 1997 to the first week of November, 1997 on the ground
that the findings on the laboratory and ballistics examinations had not yet been
received from the NBI.[37] Accused-appellant did not object to the arraignment. The
City Prosecutors request was, therefore, granted and the arraignment was reset to
November 11, 1997.[38] Nor did accused-appellant move to quash the information on
the ground that his arrest was illegal and, therefore, the trial court had no jurisdiction
over his person. Instead, on November 11, 1997, at the scheduled arraignment,
accused-appellant, with the assistance of counsel, pleaded not guilty to the charge.
[39]
On the same day, the trial court issued an order stating that, as a result of accusedappellants arraignment, his motion for preliminary investigation had become moot
and academic and, accordingly, set the case for trial. [40]Accused-appellant thus waived
the right to object to the legality of his arrest. [41]
Second. Accused-appellant contends that neither he nor his son gave permission
to the arresting police officers to search his house and, therefore, the Hanes t-shirt, the
two spent slugs, and the .38 caliber revolver allegedly found in his house are
inadmissible in evidence. The prosecution, on the other hand, insists that accusedappellant consented to the search of his house.
To be sure, the right against unreasonable searches and seizures is a personal right
which may be waived expressly or impliedly. But a waiver by implication cannot be
presumed. There must be persuasive evidence of an actual intention to relinquish the
right. A mere failure on the part of the accused to object to a search cannot be
construed as a waiver of this privilege. For as Justice Laurel explained in Pasion Vda
de Garcia v. Locsin,[42] As the constitutional guaranty is not dependent upon any
affirmative act of the citizen, the courts do not place the citizen in the position of
either contesting an officers authority by force, or waiving his constitutional rights;
but instead they hold that a peaceful submission to a search or seizure is not consent
or an invitation thereto, but is merely a demonstration or regard for the supremacy of
the law.
Because a warrantless search is in derogation of a constitutional right, peace
officers who conduct it cannot invoke regularity in the performance of official
functions and shift to the accused the burden of proving that the search was
unconsented. It is noteworthy that the testimonies of the two prosecution witnesses,
SPO1 Malinao, Jr. and PO3 Rosal, on the search show laborious effort to emphasize
that accused-appellant gave them permission to search his house. At every turn, even
when they were not being asked, they said the search was made with the consent of
the accused. As Shakespeare would put it, the lady doth protest too much,
methinks. Indeed, not only does accused-appellant stoutly deny that he ever consented
to the search of his dwelling but the prosecution has not shown any good reason why
accused-appellant might have agreed to the search.
The prosecution says the search can be justified as incidental to a valid
arrest. Even assuming the warrantless arrest to be valid, the search cannot be
considered an incident thereto. A valid arrest allows only the seizure of evidence or
dangerous weapons either in the person of the one arrested or within the area of his
immediate control. The rationale for such search and seizure is to prevent the person
arrested either from destroying evidence or from using the weapon against his
captor. It is clear that the warrantless search in this case cannot be justified on this
ground. For neither the t-shirt nor the gun was within the area of accused-appellants
immediate control. In fact, according to the rosecution, the police found the gun only
after going back to the house of accused-appellant.
Nor can the warrantless search in this case be justified under the plain view
doctrine. As this Court held in People v. Musa:[43]
The plain view doctrine may not, however, be used to launch unbridled searches and
indiscriminate seizures nor to extend a general exploratory search made solely to find
evidence of defendants guilt. The plain view doctrine is usually applied where a police
officer is not searching for evidence against the accused, but nonetheless inadvertently
comes across an incriminating object. [Coolidge v. New Hampshire, 403 U.S. 443, 29
L.Ed. 2d 564 (1971)] Furthermore, the U.S. Supreme Court stated the following
limitations on the application of the doctrine:
What the plain view cases have in common is that the police officer in each of them
had a prior justification for an intrusion in the course of which he came inadvertently
across a piece of evidence incriminating the accused. The doctrine serves to
supplement the prior justification whether it be a warrant for another object, hot
pursuit, search incident to lawful arrest, or some other legitimate reason for being
present unconnected with a search directed against the accused and permits the
warrantless seizure. Of course, the extension of the original justification is legitimate
only where it is immediately apparent to the police that they have evidence before
them; the plain view doctrine may not be used to extend a general exploratory search
from one object to another until something incriminating at last emerges. [Id., 29
L.Ed. 2d 583. See also Texas v. Brown, 460 U.S. 730, 75 L. Ed. 2d 502 (1983)]
Here, the search of accused-appellants house was illegal and, consequently, the things
obtained as a result of the illegal search, i.e., the white Hanes t-shirt, two spent shells,
and the .38 caliber gun, are inadmissible in evidence against him. It cannot be said
that the .38 caliber gun was discovered through inadvertence.After bringing accusedappellant to the Sting Cafe where he was positively identified by a waitress named
Danet Garcellano as the victims companion, the arresting officers allegedly asked
accused-appellant where he hid the gun used in killing the victim. According to SPO1
Malinao, Jr., when accused-appellant refused to answer, he sought accused-appellants
permission to go back to his house and there found the .38 caliber revolver on top of a
plastic water container outside the bathroom. Thus, the gun was purposely sought by
the police officers and they did not merely stumble upon it.
Nor were the police officers justified in seizing the white Hanes t-shirt placed on
top of the divider in plain view as such is not contraband nor is it incriminating in
nature which would lead SPO1 Malinao, Jr. to conclude that it would constitute
evidence of a crime. Contrary to what SPO1 Malinao, Jr. said, the t-shirt was not
bloodied which could have directed his attention to take a closer look at it. From the
photograph of the t-shirt (Exh. B-2), it is not visible that there were bloodstains. The
actual t-shirt (Exh. H) merely had some small specks of blood at its lower portion.
Third. There is no evidence to link accused-appellant directly to the crime. Danet
Garcellano said that accused-appellant arrived at about midnight of August 25, 1997;
that the victim joined him at about 2:30 a.m.; and that although both left the Sting
Cafe at about 3:30 a.m., she really did not know if they left together. Thus, Danet
testified:
PROSECUTOR LU:
....
Q Were they together when they left Sting Cafe or they left one after the other?
A When they were already bringing along with them the two bottles of beer, they talked and
afterwards, I already left them and I served the other customers.
Q Did you actually see Henry Piamonte leave the Sting Cafe?
A They were about to leave already at that time because they were already bringing with them the two
bottles of beer, Sir.
Q But did you see Henry Piamonte actually leave the Sting Cafe?
A When Henry Piamonte left the Sting Cafe, Henry boarded a tricycle, Sir.
Q How about Cubcubin, how did he leave the Sting Cafe?
A He followed Henry, Sir.
Q How did he follow Henry, on foot, on board a vehicle or what?
A I do not know anymore, Sir, because I already served the other customers inside.[44]
....
On cross-examination, Danet said:
ATTY. BAYBAY:
Q When he left, he left alone?
A I do not know anymore, Sir, because I already served inside.
Q Are you saying to us that you did not see him when he left?
A No, Sir, what I know is that he and Cubcubin were together because of the two bottles of beer which
were paid by Piamonte inside, Sir.
....
ATTY. BAYBAY:
Q The accused Fidel Cubcubin left Sting Cafe at 3:30?
A Yes, Sir.
Q Now, how could you be sure of the time when you were serving other people at that time?
A That is only my estimation, Sir.
Q You only estimated?
A Yes, Sir.
Q And, what was the basis of your estimation?

A Because at that time there were only few customers in that place, Sir.
Q So, you are not really sure what time Fidel Cubcubin left?
A Yes, Sir.
Q You also did not see him leave?
A No, Sir.[45]
In People v. Gallarde,[46] it was explained that positive identification refers
essentially to proof of identity and not per se to that of being an eyewitness to the very
act of commission of the crime. A witness may identify a suspect or accused in a
criminal case as the perpetrator of the crime. This constitutes direct evidence. Or, he
may not have actually seen the crime committed, but is nevertheless able to identify a
suspect or accused as the perpetrator of the crime, as when the latter is the person or
one of the persons last seen with the victim immediately before and right after the
commission of the crime. This is the second type of positive identification, which,
when taken together with other pieces of evidence constituting an unbroken chain,
leads to a fair and reasonable conclusion that the accused is the author of the crime to
the exclusion of all others.
This rule, however, cannot be applied in the present case because Danet
Garcellano did not actually see accused-appellant and the victim leave the Sting Cafe
together. There is thus serious doubt as to whether accused-appellant was really the
last person seen with the victim. Her testimony is insufficient to place accused-
appellant in the scene of the crime so as to form part of the chain of circumstantial
evidence to show that accused-appellant committed the crime. Suspicion alone is
insufficient, the required quantum of evidence being proof beyond reasonable doubt. [47]
Nor is there adequate evidence to prove any ill motive on the part of accusedappellant. Accused-appellant testified that he could not have killed the victim because
the latter was his friend whom he considered his kuya or elder brother.[48] There is no
showing that the killing of the victim was by reason of a supposed altercation they had
as to who would pay for the two bottles of beer ordered while they were at the Sting
Cafe. The beer was later paid for by the victim. Motive is proved by the acts or
statements of the accused before or immediately after the commission of the
offense, i.e., by deeds or words that may express the motive or from which his reason
for committing the offense may be inferred. [49]
Rule 133, 4 of the Revised Rules on Evidence requires the concurrence of the
following in order to sustain a conviction based on circumstantial evidence: (a) there
is more than one circumstance; (b) the facts from which the inferences are derived are
proven; and (c) the combination of all the circumstances is such as to produce a
conviction beyond reasonable doubt.
In the case at bar, there are serious doubts as to whether the crime was committed
by accused-appellant in view of the following: (1) As already stated, Danet
Garcellano, a waitress at the Sting Cafe, did not actually see accused-appellant and the
victim leaving the cafe together at about 3:30 a.m. of August 26, 1997; (2) PO3 Rosal
and SPO1 Malinao, Jr. testified that when they arrived at the scene of the crime, they
were informed by a tricycle driver that the victim and the accused-appellant had
earlier left the Sting Cafe together, but the tricycle driver was not presented to confirm
this fact; (3) SPO1 Malinao, Jr. testified that the white Hanes t-shirt was bloodied, but
the evidence shows that it had some bloodstains only on its lower portion (Exh. H),
while the photograph of the t-shirt (Exhs. B-2, B-2-A, B-2-B), supposedly taken at the
time of the search, shows that it had no bloodstains and this discrepancy was not
explained by SPO1 Malinao, Jr.; (4) The fact that the t-shirt was tested positive for
type O blood does not necessarily mean that the bloodstains came from the victim
who also had a type O blood; (5) Accused-appellant was never given a paraffin test to
determine if he was positive for gunpowder nitrates; (8) The .38 caliber gun allegedly
found in his house was not examined for the possible presence of accused-appellants
fingerprints; and (9) The allegation that the gun was placed on top of a water container
in accused-appellants house is unbelievable as it is improbable that accused-appellant
could be so careless as to leave the fatal weapon there when he could have hidden it or
thrown it away.
Nor can we rest easy on the prosecutions claim as to where the two empty shells
and the t-shirt were allegedly found. SPO1 Malinao, Jr. testified that these were placed
beside the white Hanes t-shirt and fell when he took the shirt. On direct examination,
SPO1 Malinao, Jr. said:
PROSECUTOR LU:
Q What else did you tell Cubcubin at that time?
A We asked him to allow us to go inside the house and he let us go inside the house, then after
entering the same, while we were in the sala near the kitchen we saw the white Hanes t-shirt
there, Sir, that was near the kitchen.
Q Where exactly was the white t-shirt placed at that time when you saw the same?
A Because after entering the house you will see the entire portion of that house and there is a table
there and that t-shirt was placed on the table.
Q Was that t-shirt visible from the front door of the house?
A Yes, Sir.
Q Can you describe to us the t-shirt that you saw?
A Before I got the t-shirt, I even asked his permission for me to be able to get the t-shirt, Sir, and he
even gave me the permission to get the same, after getting the t-shirt there were even 2 empty
shells which fell, and I saw the t-shirt was with blood stains.
Q This white t-shirt, can you tell us the brand of the t-shirt?
A Hanes, Sir.
Q How about the blood spot or blood stains, can you tell us how many, if you can remember?
A We were in a hurry, I did not count the blood stains anymore but there were blood stains on the tshirt, Sir.
Q How about these 2 empty shells that fell when you lifted the t-shirt, can you describe to us these 2
empty shells?
A Empty shells of .38 cal. bullets, Sir.
Q What did you do with the empty shells?
A I got the t-shirt as well as the 2 empty shells and I showed them to him, Sir.[50]
However, on cross-examination, he said he found the empty shells on top of a

cabinet (tokador) in the bedroom on the second floor of the house. Thus, he testified:
ATTY. BAYBAY:
Q Where was this t-shirt again when you first saw it?
A In the kitchen area, Sir.
Q Where in the kitchen area, on the floor or on the wall?
A It was immediately in front of the door because the house has no divider anymore, Sir.
Q And that t-shirt was immediately near the door, on the floor?
A Yes, Sir.
Q What did you do after that, when you saw the t-shirt there?
A I asked his permission so that I could take a look at the t-shirt, Sir.
Q And you said, you looked at it?
A Yes, Sir.
Q When you said, you looked at it, how did you look at it?
A I spread it out in front of him, Sir.
Q And when you spread it out in front of him, did you ask him whose t-shirt is it?
A I asked him if that t-shirt belongs to him, Sir.
Q What did he say?
A According to him, the t-shirt does not belong to him, Sir.
Q You also testified that you found two empty shells?
A Yes, Sir.
Q Where did you find these two empty shells?
A From the bedroom upstairs, Sir.
Q Bedroom upstairs?
A Yes, Sir.
Q You mean, it is a two-storey house?
A Yes, Sir, there is a bedroom upstairs.
Q You found it when you went up?
A I first asked his permission to look around inside the house, Sir, because I was asking him also about
the whereabouts of the firearm he had.
Q And he allowed you?
A He allowed me, sir.
Q And when you went upstairs, you found the two empty shells?
A Yes, Sir, they were placed on their tokador on a place where there is a curtain.
Q In your previous testimony and this is found on page 41 of the TSN, you stated that you got the tshirt and when you lifted the t-shirt, two empty shells fell off?
A After finding the two empty shells for a .38 caliber, Sir, I placed them together with the t-shirt.
Q What you are telling us now is that you went upstairs, you found two empty shells and you put them
together with the t-shirt, that is what you are telling us now?
A After finding and taking a look at the t-shirt, I put it on the original place where it was, Sir, and after
finding the two empty shells, it so happened that the investigator was behind me so after that, I
showed to him the t-shirt as well as the empty shells. [51]
....
Q Also in your previous testimony, you got the t-shirt and you asked the permission to get the t-shirt,
after getting the t-shirt, there were 2 empty shells which fell. The question is, do you remember
that this happened?
A These two empty shells which I recovered upstairs, sir, I placed them on top of the t-shirt.
Q You said, when you got the t-shirt, something fell, in your direct testimony?
A While Fidel Cubcubin was just beside me, Sir, I got the t-shirt, I spread it out and nothing fell yet at
that time, then I asked him about the firearm that he used.
....
Q Do you remember having been asked this particular question:
Q Can you describe to us the t-shirt that you saw?
A Before I got the t-shirt I even asked his permission for me to be able to get the t-shirt, Sir, and he
even gave me the permission to get the same, after getting the t-shirt there were even 2 empty
shells which fell, and I saw the t-shirt was with blood stains.
A Yes, Sir, I remember it.
Q I am just referring to two empty shells that fell, which you said, is that true?
A Yes, Sir, there were empty shells that fell, but I first placed them on top of the t-shirt because I was
planning to wrap these empty shells in the t-shirt.
Q You also testified here on page 40 that the t-shirt was visible from the front door of the house, is that
true?
A Yes, Sir.
Q And you were referring to the time that you entered the house?
A Yes, Sir.
Q And that was the time that you lift[ed] the t-shirt when you saw it and you got it?
A What I said before was that, I got the t-shirt, I lifted it, after that, I placed it on its original place, Sir,
and I asked him about the firearm but he was not commenting anything on that, so I asked
permission from him to go upstairs to look around.
Q When you said you placed that from the place where you found it, how did you put it on the place
where you found it?
A I placed it there the way I saw it before, the way it was previously placed there, Sir, because I was
planning to bring the t-shirt.[52]
Thus, caught in his own contradiction, SPO1 Malinao, Jr. prevaricated but in the
process committed more contradictions. He said he found the empty shells on top of
the tokador on the second floor of the house, brought them downstairs, and then
placed them on the t-shirt. When he got the t-shirt, the empty shells fell on the
floor. But how could he have gotten the shells from the second floor if, according to
him, he found them by accident when they fell from the t-shirt which he found
immediately after entering accused-appellants house and before going up to the
second storey? It is also noteworthy that whereas at first SPO1 Malinao, Jr. said he
found the t-shirt placed on the table near the kitchen, he later said he found it on the
floor.
WHEREFORE, the decision of the Regional Trial Court, Branch 88, Cavite City,
finding accused-appellant Fidel Abrenica Cubcubin, Jr. guilty of the crime of murder,
is REVERSED and accused-appellant is hereby ACQUITTED on the ground
of reasonable doubt.
Accused-appellant is ordered immediately released from custody unless he is
being held for some other lawful cause. The Director of Prisons is directed to
implement this Decision and to report to the Court the action taken hereon within five
(5) days from receipt hereof.
SO ORDERED.
G.R. No. 110569 December 9, 1996
DIOSDADO MALLARI, petitioner,
vs.
THE HON. COURT OF APPEALS and THE PEOPLE OF THE PHILIPPINES, respondents.
FRANCISCO, J.:p
Given credence by respondent Court of Appeals is the following narration of the factual antecedents
of this case by the People.
Sometime on December 27, 1990, at around 2:30 p.m., Pat. Manipon and Pfc.
Esguerra, who were both then assigned at the Capas Police Station, received
reliable information that appellant Diosdado Mallari, who has a standing warrant of
arrest in connection with Criminal Case No. 471 for Homicide in 1989, was seen at
Sitio 14, Sta. Rita, Capas, Tarlac (tsn, April 18, 1991, pp. 3-4; June 27, 1991, p. 3).
Immediately upon receipt of such information. Pfc. Manipon, accompanied by Pat.
Esguerra and Pat. Narciso Sirnbulan, with personal knowledge of the existence of a
standing warrant of arrest against appellant in connection with Criminal Case No.
471 for Homicide, immediately proceeded to Sitio 14, Sta. Rita, Capas, Tarlac. Upon
reaching the place, the arresting officers surrounded the house of appellant, arrested
him and told him to remain stationary. Thereupon, the arresting officers searched him
and found a homemade gun (paltik) with one M-16 live ammunition (tsn, April 18,
1991, pp. 5-6, 8; June 27, 1991, pp. 3-5, 7).
Appellant was handcuffed and brought to the Capas Police Station where he was
endorsed to the chief investigator while the homemade gun and live ammunition
were endorsed to the property custodian. The incident was then entered in the police
blotter after which the spot and investigation reports were prepared (tsn, June, April
18, 1991, p. 5, 10; June 27, 1991,

p. 6). 1
After investigation, the petitioner was charged with the crime of Illegal Possession of Firearms and
Ammunition, and pleaded not guilty on arraignment. Trial on the merits ensued, after which, the
Regional Trial Court of Capas, Tarlac convicted petitioner of the crime charged, as follows:
WHEREFORE, accused Diosdado Mallari is hereby found guilty beyond reasonable
doubt of the crime of Illegal Possession of Firearms and Ammunitions and hereby
sentences him to suffer an indeterminate penalty of seventeen years, four months
and one day as minimum to eighteen years and eight months as maximum.
Accused, who is a detention prisoner is given full credit for the period of his
preventive imprisonment. after compliance with Article 29 of the Revised Penal Code.
SO ORDERED. 2
Assailed in this petition for review on certiorari is the decision of respondent Court of Appeals
affirming in toto the abovequoted decision of the trial court. In its decision, the Court of Appeals held
that the testimonies of the prosecution witnesses, Pfc. Manipon and Pat. Esguerra "unequivocally
proved that the handgun (paltik) and the live M-16 ammunition were recovered from the person of
the appellant (herein petitioner)". 3 The Court of Appeals further held that the search conducted on the
petitioner and the seizure of the subject firearm and ammunition were done on the occasion of a lawful
arrest as there was then an outstanding warrant for petitioner's arrest in Criminal Case No.
471. 4 It likewise found that petitioner was arrested while committing the crime of illegal possession of
firearms in the presence of the police authorities. Thus, anent petitioner's insistence that there was no
standing warrant for his arrest, thereby making the search and seizure invalid, the Court of Appeals stated
that, "under the prevailing factual milieu, even in the absence of a warrant, still appellant's arrest would
fall squarely within the context of Rule 113, Sec. 5 (b), Rules of Court . . ." 5 which cites the instances
when a warrantless arrest may be valid.
In seeking the reversal of his conviction, petitioner questions the factual finding of the Court of
Appeals that at the time of his arrest, there was a standing warrant against him in Criminal Case No.
471. Petitioner posits that the absence of the requisite warrant is fatal and renders the search and
seizure unlawful. Corrolarily, the hand gun and ammunition seized from him are inadmissible in
evidence. Petitioner also contends that it was error for the Court of Appeals to conclude that the
search and seizure could be validly effected as it was done on the occasion of a lawful warrantless
arrest, particularly, while in the act of committing the crime of illegal possession of firearms in the
presence of the arresting officers. Finally, petitioner claims that even assuming that the handgun and
ammunition had in fact been found in his possession, the prosecution failed to prove that he had no
license therefor and absent this essential element of the crime of illegal possession of firearms, it
was manifest error for the Court of Appeals to uphold his conviction.
The threshold issue is factual: whether or not there indeed existed a standing warrant for the arrest
of the petitioner. At the outset, this Court reiterates the general rule that when supported by
substantial evidence, factual findings of the Court of Appeals are final and conclusive and may not
be reviewed on appeal. 6 A careful scrutiny of the records of the case at bench leads this Court to concur
with the Court of Appeals in its finding that when the petitioner was arrested, there was then a standing
warrant of arrest against him in connection with Criminal Case No. 471. This fact is manifest from the
testimonies of the arresting officers which the defense failed to rebut during trial.
Pfc. Danilo Manipon:

Q When you arrested Diosdado Mallari Mr. witness, were you
carrying a warrant of arrest then?
A No, sir.
Q Neither you did not have with you a seize and search warrant and
despite the fact that you have no search and seize warrant you have
still pursued in getting the ammunition you have just mentioned, the
home made gun and the live bullet?
A Yes, sir.
COURT:
You are referring to what case?
A Homicide, ma'am, Criminal Case No. 471.
COURT:
Alright.
Q Was the seizure of the home made gun related to the warrant of
arrest being issued by this honorable court with respect to criminal
case No. 471?
COURT:
Will you clarify, I heard him saying that he did not have a warrant of
arrest, is that correct?
A Yes, ma'am.
COURT:
What about with respect to Criminal Case No. 471 you do not have a
warrant of arrest issued by this court?
A There was, ma'am, I know that there was a warrant of arrest
issued, that is why we proceeded to Sitio 14, ma'am.
COURT:
Alright you proceeded to Sitio 14 because of the warrant of arrest

issued by this court to apprehend Diosdado Mallari in Criminal Case
No. 471, is that correct?
A Yes, ma'am. 7 [Emphasis supplied]
Pat. Jose Esguerra:
Q Do you have with you at the time when you arrested or when you
seized the gun and the live ammunition, a search and seize warrant?
A None, your honor.
COURT:
Q Did you have with you the warrant of arrest you mentioned with
respect to CR. No. 471?
A When we went to him, we did not have a warrant of arrest because
we were in a hurry but when we returned, we reached the warrant
officer, your honor.
Q Where did you return?
A When we returned to the Capas Police Station there was the
warrant officer already, your Honor.
Proceed.
ATTY. DULDULAO:
Q You said you did not bring the warrant of arrest when you arrested
the accused how did you come to know that Diosdado Mallari was
indeed the accused despite the fact that you did not bring with you
the warrant of arrest then?
A When we went there, sir, we did not have a warrant of arrest
because we were in a hurry if we will wait our warrant officer, we may
not reach Diosdado Mallari, but we know that he has a standing
warrant of arrest. 8 [Emphasis provided]
Further bolstering the arresting officers' testimonies is the absence of any motive on their part to
falsely testify against the petitioner. And it has been repeatedly held that without proof of such
motive, law enforcers are presumed to have regularly performed their duties. 9 Thus, absent strong
and convincing proof to the contrary, this Court is bound by the presumption that the arresting officers
were aware of the legal mandates in effecting an arrest and strictly complied with the same.
At this juncture, the Court would like to stress that this is not a case of a warrantless arrest but
merely an instance of an arrest effected by the police authorities without having the warrant in their
possession at that precise moment. Finding as it does, this Court deems it unnecessary to delve into
the applicability of Section 5, Rule 113 of the Rules of Court and on the merits of both the petitioner's
and the Office of the Solicitor General's arguments with respect thereto. The applicable provision is
not Section 5, Rule 118 of the Rules of Court on warrantless arrests, but Section 7, Rule 113 which
provides as follows:
Sec. 8. Method of Arrest by officer by virtue of warrant When making an arrest by
virtue of a warrant the officer shall inform the person to be arrested of the cause of
the arrest and the fact that a warrant has been issued for his arrest, except when he
flees or forcibly resists before the officer has opportunity so to inform him or when the
giving of such information will imperil the arrest. The officer need not have the
warrant in his at the time of the arrest but after the arrest, if the person arrested so
requires, the warrant shall be shown to him as soon as practicable." [Emphasis
supplied]
The abovequoted rule clearly allows a police officer to effect arrest without the warrant in his
possession at the time of the arrest. Thus, appellant's arrest being lawful, the search and seizure
made incidental thereto is likewise valid, albeit conducted without a warrant. 10 In the case of People
v. Acol, 11 where the unlicensed firearms were found when the police team apprehended the accused for
robbery and not for illegal possession of firearms and ammunition, this Court held that the unlicensed
firearms may be seized without the necessity of obtaining a search warrant. Expounding thereon, it stated
that:
. . . The illegality of the search is independent from the illegal possession of
prohibited arms. The illegality of the search did not make legal an illegal possession
of firearms. When, in pursuing an illegal action or in the commission of a criminal
offense, the offending police officers should happen to discover a criminal offense
being committed by any person, they are not precluded from performing their duties
as police officers for the apprehension of the guilty and the taking of thecorpus
delicti. 12
Finally, petitioner contends that the prosecution failed to discharge its burden of proving that he did
not have the requisite license for the firearm and ammunition found in his possession. Anent this
contention, the Office of the Solicitor General does not even attempt to point out any evidence on
record of petitioner's non-possession of a license or permit for there really is no such evidence. It
relies on the theory that as the firearm involved is a homemade gun or "paltik" and is illegal per se, it
could not have been the subject of license. 13 This, according to the Solicitor General, dispenses with
the necessity of proving that petitioner had no license to possess the firearm. This is where the
prosecution's case fails and miserably so. This Court has ruled that:
We do not agree with the contention of the Solicitor General that since a paltik is a
homemade gun, is illegally manufactured as recognized in People vs. Fajardo, and
cannot be issued a license or permit, it is no longer necessary to prove that it is
unlicensed. This appears to be at first blush, a very logical proposition. We cannot,
however, yield to it because Fajardo did not say that paltiks can in no case be issued
a license or permit and that proof that a firearm is a paltik dispenses with proof that it
is unlicensed. 14
In crimes involving illegal possession of firearm, the prosecution has the burden of proving the
elements thereof,viz: (a) the existence of the subject firearm and (b) the fact that the accused who
owned or possessed it does not have the corresponding license or permit to possess the
same. 15 The latter is a negative fact which constitutes an essential ingredient of the offense of illegal
possession, and it is the duty of the prosecution not only to allege it but also to prove it beyond
reasonable doubt. 16 In the case at bench, the testimony of a representative of, or a certification from the
PNP (FEU) that petitioner was not a licensee of the said firearm would have sufficed for the prosecution to
prove beyond reasonable doubt the second element of the crime of illegal
possession. 17 The absence of the foregoing is fatal to the prosecution's case and renders petitioner's
conviction erroneous.
True that in the case of People v. Mesal 18, this Court dispensed with a certification from the Firearms
and Explosives Unit (FEU) of the Philippine National Police (PNP) to establish the alleged lack of license
or permit on the part of the accused-appellant to possess the M-14 rifle found in his possession. This was,
however, premised on the fact that:
The records reveal that the allegation was successfully substantiated by other
evidence which firmly and undisputably established that accused-appellant did not
have and could not possibly have, the requisite license or authority to possess the M14 rifle concerned. Technical Sgt. Alfredo Romasanta, Supply Officer of the PC-INP
253rd PC Company, testified that the rifle concerned is the type of weapon which
only military men are authorized to possess . . . 19
The above enunciated doctrine is not applicable to this case. The records are bereft of any evidence
similar to that offered by the prosecution in Mesal to prove that the petitioner "did not have and could
not possibly have" the requisite license or authority to possess the "paltik" and the M-16 live
ammunition.
In view of the foregoing, the petition is hereby GRANTED and the assailed decision is REVERSED
and SET ASIDE. Petitioner Diosdado Mallari is hereby ACQUITTED for insufficiency of evidence aid
ordered immediately released unless there are other legal grounds for his continued detention.
SO ORDERED.
G.R. No. 197597
April 8, 2015
IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF DATUKAN MALANG SALIBO,
DATUKAN MALANG SALIBO, Petitioner,
vs.
WARDEN, QUEZON CITY JAIL ANNEX, BJMP BUILDING, CAMP BAGONG DIWA, TAGUIG CITY
and all other persons acting on his behalf and/or having custody of DATUKAN MALANG
SALIBO, Respondents.
DECISION
LEONEN, J.:
Habeas corpus is the proper remedy for a person deprived of liberty due to mistaken identity. In such
cases, the person is not under any lawful process and is continuously being illegally detained.
This is a Petition for Review on Certiorari of the Court of Appeals Decision reversing the
Decision of the Regional Trial Court, Branch 153, Pasig City (Taguig Hall of Justice) granting
Datukan Malang Salibos Petition for Habeas Corpus.
1
From November 7, 2009 to December 19, 2009, Datukan Malang Salibo (Salibo) and other Filipinos
were allegedly in Saudi Arabia for the Hajj Pilgrimage. "While in Saudi Arabia, . . . Salibo visited and
prayed in the cities of Medina, Mecca, Arpa, Mina and Jeddah." He returned to the Philippines on
December 20, 2009.
4
On August 3, 2010, Salibo learned that police officers of Datu Hofer Police Station in Maguindanao
suspected him to be Butukan S. Malang.
7
Butukan S. Malang was one of the 197 accused of 57 counts of murder for allegedly participating in
the November 23, 2009 Maguindanao Massacre. He had a pending warrant of arrest issued by the
trial court in People of the Philippines v. Datu Andal Ampatuan, Jr., et al.
8
Salibo presented himself before the police officers of Datu Hofer Police Station to clear his name.
There, he explained that he was not Butukan S. Malang and that he could not have participated in
the November 23, 2009 Maguindanao Massacre because he was in Saudi Arabia at that time.
9
To support his allegations, Salibo presented to the police "pertinent portions of his passport,
boarding passes and other documents" tending to prove that a certain Datukan Malang Salibo was
in Saudi Arabia from November 7 to December 19, 2009.
10
11
The police officers initially assured Salibo that they would not arrest him because he was not
Butukan S. Malang.
12
Afterwards, however, the police officers apprehended Salibo and tore off page two of his passport
that evidenced his departure for Saudi Arabia on November 7, 2009. They then detained Salibo at
the Datu Hofer Police Station for about three (3) days.
13
The police officers transferred Salibo to the Criminal Investigation and Detection Group in Cotabato
City, where he was detained for another 10 days. While in Cotabato City, the Criminal Investigation
and Detention Group allegedly made him sign and affix his thumbprint on documents.
14
On August 20, 2010, Salibo was finally transferred to the Quezon City Jail Annex, Bureau of Jail
Management and Penology Building, Camp Bagong Diwa, Taguig City, where he is currently
detained.
15
On September 17, 2010, Salibo filed before the Court of Appeals the Urgent Petition for Habeas
Corpus questioning the legality of his detention and deprivation of his liberty. He maintained that he
is not the accused Butukan S. Malang.
16
17
18
In the Resolution dated September 21, 2010,the Court of Appeals issued a Writ of Habeas Corpus,
making the Writ returnable to the Second Vice Executive Judge of the Regional Trial Court, Pasig
City (Taguig Hall of Justice). The Court of Appeals ordered the Warden of the Quezon City Jail
Annex to file a Return of the Writ one day before the scheduled hearing and produce the person of
Salibo at the 10:00 a.m. hearing set on September 27, 2010. Proceedings before the trial court
19
20
21
On September 27, 2010, the jail guards of the Quezon City Jail Annex brought Salibo before the trial
court. The Warden, however, failed to file a Return one day before the hearing. He also appeared
without counsel during the hearing.
22
Thus, the trial court canceled the hearing and reset it to September 29, 2010 at 2:00 p.m.
23
On September 28, 2010, the Warden filed the Return of the Writ. However, during the September 29,
2010 hearing on the Return, the Warden appeared with Atty. Romeo L. Villante, Jr., Legal
Officer/Administering Officer of the Bureau of Jail Management and Penology. Salibo questioned
the appearance of Atty. Romeo L. Villante, Jr. on behalf of the Warden and argued that only the
Office of the Solicitor General has the authority to appear on behalf of a respondent in a habeas
corpus proceeding.
24
25
The September 29, 2010 hearing, therefore, was canceled. The trial court reset the hearing on the
Return to October 1, 2010 at 9:00 a.m.
26
The Return was finally heard on October 1, 2010. Assistant Solicitors Noel Salo and Isar Pepito
appeared on behalf of the Warden of the Quezon City Jail Annex and argued that Salibos Petition
for Habeas Corpus should be dismissed. Since Salibo was charged under a valid Information and
Warrant of Arrest, a petition for habeas corpus was "no longer availing." Salibo countered that the
Information, Amended Information, Warrant of Arrest, and Alias Warrant of Arrest referred to by the
Warden all point to Butukan S. Malang, not Datukan Malang Salibo, as accused. Reiterating that he
was not Butukan S. Malang and that he was in Saudi Arabia on the day of the Maguindanao
Massacre, Salibo pleaded the trial court to order his release from detention.
27
28
The trial court found that Salibo was not "judicially charged" under any resolution, information, or
amended information. The Resolution, Information, and Amended Information presented in court did
not charge Datukan Malang Salibo as an accused. He was also not validly arrested as there was no
Warrant of Arrest or Alias Warrant of Arrest against Datukan Malang Salibo. Salibo, the trial court
ruled, was not restrained of his liberty under process issued by a court.
29
30
The trial court was likewise convinced that Salibo was not the Butukan S. Malang charged with
murder in connection with the Maguindanao Massacre. The National Bureau of Investigation
Clearance dated August 27, 2009 showed that Salibo has not been charged of any crime as of the
date of the certificate. A Philippine passport bearing Salibos picture showed the name "Datukan
Malang Salibo."
31
32
Moreover, the trial court said that Salibo "established that [he] was out of the country" from
November 7, 2009 to December 19, 2009. This fact was supported by a Certification from Saudi
Arabian Airlines confirming Salibos departure from and arrival in Manila on board its flights. A Flight
Manifest issued by the Bureau of Immigration and Saudi Arabian Airlines Ticket No. 0652113 also
showed this fact.
33
34
35
36
Thus, in the Decision dated October 29, 2010, the trial court granted Salibos Petition for Habeas
Corpus and ordered his immediate release from detention.
Proceedings before the Court of Appeals
On appeal by the Warden, however, the Court of Appeals reversed and set aside the trial courts
Decision. Through its Decision dated April 19, 2011, the Court of Appeals dismissed Salibos Petition
for Habeas Corpus.
37
38
Contrary to the trial courts finding, the Court of Appeals found that Salibos arrest and subsequent
detention were made under a valid Information and Warrant of Arrest. Even assuming that Salibo
was not the Butukan S. Malang named in the Alias Warrant of Arrest, the Court of Appeals said that
"[t]he orderly course of trial must be pursued and the usual remedies exhausted before the writ [of
habeas corpus] may be invoked[.]" According to the Court of Appeals, Salibos proper remedy was
a Motion to Quash Information and/or Warrant of Arrest.
39
40
41
Salibo filed a Motion for Reconsideration, which the Court of Appeals denied in the
Resolution dated July 6, 2011.
42
43
Proceedings before this court

On July 28, 2011, petitioner Salibo filed before this court the Petition for Review (With Urgent
Application for a Writ of Preliminary Mandatory Injunction). Respondent Warden filed a
Comment, after which petitioner Salibo filed a Reply.
44
45
46
Petitioner Salibo maintains that he is not the Butukan S. Malang charged with 57 counts of murder
before the Regional Trial Court, Branch 221, Quezon City. Thus, contrary to the Court of Appeals
finding, he, Datukan Malang Salibo, was not duly charged in court. He is being illegally deprived of
his liberty and, therefore, his proper remedy is a Petition for Habeas Corpus. Petitioner Salibo adds
that respondent Warden erred in appealing the Decision of the Regional Trial Court, Branch 153,
Pasig City before the Court of Appeals. Although the Court of Appeals delegated to the trial court the
authority to hear respondent Warden on the Return, the trial courts Decision should be deemed a
Decision of the Court of Appeals. Therefore, respondent Warden should have directly filed his appeal
before this court.
47
48
As for respondent Warden, he maintains that petitioner Salibo was duly charged in court. Even
assuming that he is not the Butukan S. Malang named in the Alias Warrant of Arrest, petitioner
Salibo should have pursued the ordinary remedy of a Motion to Quash Information, not a Petition for
Habeas Corpus.
49
The issues for our resolution are:

First, whether the Decision of the Regional Trial Court, Branch 153, Pasig City on petitioner Salibos
Petition for Habeas Corpus was appealable to the Court of Appeals; and
Second, whether petitioner Salibos proper remedy is to file a Petition for Habeas Corpus.
We grant the Petition.
I
Contrary to petitioner Salibos claim, respondent Warden correctly appealed before the Court of
Appeals.
An application for a writ of habeas corpus may be made through a petition filed before this court or
any of its members, the Court of Appeals or any of its members in instances authorized by law, or
the Regional Trial Court or any of its presiding judges. The court or judge grants the writ and
requires the officer or person having custody of the person allegedly restrained of liberty to file a
return of the writ. A hearing on the return of the writ is then conducted.
50
51
52
53
54
The return of the writ may be heard by a court apart from that which issued the writ. Should the
court issuing the writ designate a lower court to which the writ is made returnable, the lower court
shall proceed to decide the petition of habeas corpus. By virtue of the designation, the lower court
"acquire[s] the power and authority to determine the merits of the [petition for habeas
corpus.]" Therefore, the decision on the petition is a decision appealable to the court that has
appellate jurisdiction over decisions of the lower court.
55
56
57
In Saulo v. Brig. Gen. Cruz, etc, "a petition for habeas corpus was filed before this Court . . . [o]n
behalf of . . . Alfredo B. Saulo [(Saulo)]." This court issued a Writ of Habeas Corpus and ordered
respondent Commanding General of the Philippine Constabulary to file a Return of the Writ. This
court made the Writ returnable to the Court of First Instance of Manila.
58
59
60
After hearing the Commanding General on the Return, the Court of First Instance denied Saulos
Petition for Habeas Corpus.
61
Saulo appealed before this court, arguing that the Court of First Instance heard the Petition for
Habeas Corpus "not by virtue of its original jurisdiction but merely delegation[.]" Consequently, "this
Court should have the final say regarding the issues raised in the petition, and only [this courts
decision] . . . should be regarded as operative."
62
63
This court rejected Saulos argument and stated that his "logic is more apparent than real." It ruled
that when a superior court issues a writ of habeas corpus, the superior court only resolves whether
the respondent should be ordered to show cause why the petitioner or the person in whose behalf
the petition was filed was being detained or deprived of his or her liberty. However, once the
superior court makes the writ returnable to a lower court as allowed by the Rules of Court, the lower
court designated "does not thereby become merely a recommendatory body, whose findings and
conclusion[s] are devoid of effect[.]" The decision on the petition for habeas corpus is a decision of
the lower court, not of the superior court.
64
65
66
In Medina v. Gen. Yan, Fortunato Medina (Medina) filed before this court a Petition for Habeas
Corpus. This court issued a Writ of Habeas Corpus, making it returnable to the Court of First
Instance of Rizal, Quezon City. After trial on the merits, the Court of First Instance granted Medinas
Petition for Habeas Corpus and ordered that Medina be released from detention. The Office of the
Solicitor General filed a Notice of Appeal before the Court of Appeals. Atty. Amelito Mutuc, counsel
for Medina, filed before the Court of Appeals a "Motion for Certification of Appeal to the Supreme
Court." The Court of Appeals, however, denied the Motion.
67
68
69
70
This court ruled that the Court of Appeals correctly denied the "Motion for Certification of Appeal to
the Supreme Court," citing Saulo as legal basis. The Court of First Instance of Rizal, in deciding
Medinas Petition for Habeas Corpus, "acquired the power and authority to determine the merits of
the case[.]" Consequently, the decision of the Court of First Instance of Rizal on Medinas Petition
for Habeas Corpus was appealable to the Court of Appeals.
71
72
73
In this case, petitioner Salibo filed his Petition for Habeas Corpus before the Court of Appeals. The
Court of Appeals issued a Writ of Habeas Corpus, making it returnable to the Regional Trial Court,
Branch 153, Pasig City. The trial court then heard respondent Warden on his Return and decided the
Petition on the merits.
Applying Saulo and Medina, we rule that the trial court "acquired the power and authority to
determine the merits" of petitioner Salibos Petition. The decision on the Petition for Habeas
Corpus, therefore, was the decision of the trial court, not of the Court of Appeals. Since the Court of
74
Appeals is the court with appellate jurisdiction over decisions of trial courts, respondent Warden
correctly filed the appeal before the Court of Appeals.
75
II
Called the "great writ of liberty[,]" the writ of habeas corpus "was devised and exists as a speedy
and effectual remedy to relieve persons from unlawful restraint, and as the best and only sufficient
defense of personal freedom." The remedy of habeas corpus is extraordinary and summary in
nature, consistent with the laws "zealous regard for personal liberty." Under Rule 102, Section 1 of
the Rules of Court, the writ of habeas corpus "shall extend to all cases of llegal confinement or
detention by which any person is deprived of his liberty, or by which the rightful custody of any
person is withheld from the person entitled thereto." The primary purpose of the writ "is to inquire
into all manner of involuntary restraint as distinguished from voluntary, and to relieve a person
therefrom if such restraint is illegal." "Any restraint which will preclude freedom of action is
sufficient."
76
77
78
79
80
81
82
83
The nature of the restraint of liberty need not be related to any offense so as to entitle a person to
the efficient remedy of habeas corpus. It may be availed of as a post-conviction remedy or when
there is an alleged violation of the liberty of abode. In other words, habeas corpus effectively
substantiates the implied autonomy of citizens constitutionally protected in the right to liberty in
Article III, Section 1 of the Constitution. Habeas corpus being a remedy for a constitutional right,
courts must apply a conscientious and deliberate level of scrutiny so that the substantive right to
liberty will not be further curtailed in the labyrinth of other processes.
84
85
86
87
In Gumabon, et al. v. Director of the Bureau of Prisons, Mario Gumabon (Gumabon), Blas
Bagolbagol (Bagolbagol), Gaudencio Agapito (Agapito), Epifanio Padua (Padua), and Paterno
Palmares (Palmares) were convicted of the complex crime of rebellion with murder. They
commenced serving their respective sentences of reclusion perpetua.
88
89
While Gumabon, Bagolbagol, Agapito, Padua, and Palmares were serving their sentences, this court
promulgated People v. Hernandez in 1956, ruling that the complex crime of rebellion with murder
does not exist.
90
91
Based on the Hernandez ruling, Gumabon, Bagolbagol, Agapito, Padua, and Palmares filed a
Petition for Habeas Corpus. They prayed for their release from incarceration and argued that the
Hernandez doctrine must retroactively apply to them.
92
This court ruled that Gumabon, Bagolbagol, Agapito, Padua, and Palmares properly availed of a
petition for habeas corpus. Citing Harris v. Nelson, this court said:
93
94
[T]he writ of habeas corpus is the fundamental instrument for safeguarding individual freedom
against arbitrary and lawless state action. . . . The scope and flexibility of the writ its capacity to
reach all manner of illegal detention its ability to cut through barriers of form and procedural
mazes have always been emphasized and jealously guarded by courts and lawmakers. The very
nature of the writ demands that it be administered with the initiative and flexibility essential to insure
that miscarriages of justice within its reach are surfaced and corrected.
95
In Rubi v. Provincial Board of Mindoro, the Provincial Board of Mindoro issued Resolution No. 25,
Seriesof 1917. The Resolution ordered the Mangyans removed from their native habitat and
compelled them to permanently settle in an 800-hectare reservation in Tigbao. Under the Resolution,
Mangyans who refused to establish themselves in the Tigbao reservation were imprisoned.
96
97
An application for habeas corpus was filed before this court on behalf of Rubi and all the other
Mangyans being held in the reservation. Since the application questioned the legality of deprivation
of liberty of Rubi and the other Mangyans, this court issued a Writ of Habeas Corpus and ordered
the Provincial Board of Mindoro to make a Return of the Writ.
98
99
A Writ of Habeas Corpus was likewise issued in Villavicencio v. Lukban. "[T]o exterminate
vice," Mayor Justo Lukban of Manila ordered the brothels in Manila closed. The female sex workers
previously employed by these brothels were rounded up and placed in ships bound for Davao. The
women were expelled from Manila and deported to Davao without their consent.
100
101
102
On application by relatives and friends of some of the deported women, this court issued a Writ of
Habeas Corpus and ordered Mayor Justo Lukban, among others, to make a Return of the Writ.
Mayor Justo Lukban, however, failed to make a Return, arguing that he did not have custody of the
women.
103
This court cited Mayor Justo Lukban in contempt of court for failure to make a Return of the
Writ. As to the legality of his acts, this court ruled that Mayor Justo Lukban illegally deprived the
women he had deported to Davao of their liberty, specifically, of their privilege of domicile. It said
that the women, "despite their being in a sense lepers of society[,] are nevertheless not chattels but
Philippine citizens protected by the same constitutional guaranties as are other citizens[.]" The
women had the right "to change their domicile from Manila to another locality."
104
105
106
107
The writ of habeas corpus is different from the final decision on the petition for the issuance of the
writ. It is the writ that commands the production of the body of the person allegedly restrained of his
or her liberty. On the other hand, it is in the final decision where a court determines the legality of the
restraint.
Between the issuance of the writ and the final decision on the petition for its issuance, it is the
issuance of the writ that is essential. The issuance of the writ sets in motion the speedy judicial
inquiry on the legality of any deprivation of liberty. Courts shall liberally issue writs of habeas corpus
even if the petition for its issuance "on [its] face [is] devoid of merit[.]" Although the privilege of the
writ of habeas corpus may be suspended in cases of invasion, rebellion, or when the public safety
requires it, the writ itself may not be suspended.
108
109
110
III
It is true that a writ of habeas corpus may no longer be issued if the person allegedly deprived of
liberty is restrained under a lawful process or order of the court. The restraint then has become
legal, and the remedy of habeas corpus is rendered moot and academic.
111
112
113
Rule 102, Section 4 of the Rules of Court provides:

SEC. 4. When writ not allowed or discharge authorized.If it appears that the person alleged to be
restrained of his liberty is in the custody of an officer under process issued by a court or judge or by
virtue of a judgment or order of a court of record, and that the court or judge had jurisdiction to issue
the process, render the judgment, or make the order, the writ shall not be allowed; or if the
jurisdiction appears after the writ is allowed, the person shall not be discharged by reason of any
informality or defect in the process, judgment, or order. Nor shall anything in this rule be held to
authorize the discharge of a person charged with or convicted of an offense in the Philippines, or of
a person suffering imprisonment under lawful judgment.
In Ilagan v. Hon. Ponce Enrile, elements of the Philippine Constabulary-Integrated National Police
arrested Atty. Laurente C. Ilagan (Atty. Ilagan) by virtue of a Mission Order allegedly issued by then
Minister of National Defense, Juan Ponce Enrile (Minister Enrile). On the day of Atty. Ilagans arrest,
15 from the Integrated Bar of the Philippines Davao Chapter visited Atty. Ilagan in Camp Catitipan,
where he was detained.
114
115
Among Atty. Ilagans visitors was Atty. Antonio Arellano (Atty. Arellano). Atty. Arellano, however, no
longer left Camp Catitipan as the military detained and arrested him based on an unsigned Mission
Order.
116
Three (3) days after the arrest of Attys. Ilagan and Arellano, the military informed the Integrated Bar
of the Philippines Davao Chapter of the impending arrest of Atty. Marcos Risonar (Atty. Risonar). To
verify his arrest papers, Atty. Risonar went to Camp Catitipan. LikeAtty. Arellano, the military did not
allow Atty. Risonar toleave. He was arrested based on a Mission Order signed by General
Echavarria, Regional Unified Commander.
117
The Integrated Bar of the Philippines, the Free Legal Assistance Group, and the Movement of
Attorneys for Brotherhood, Integrity and Nationalism filed before this court a Petition for Habeas
Corpus in behalf of Attys. Ilagan, Arellano, and Risonar.
118
This court issued a Writ of Habeas Corpus and required Minister Enrile, Armed Forces of the
Philippines Acting Chief of Staff Lieutenant General Fidel V. Ramos (General Ramos), and Philippine
Constabulary-Integrated National Police Regional Commander Brigadier General Dionisio TanGatue (General Tan-Gatue) to make a Return of the Writ. This court set the hearing on the Return
on May 23, 1985.
119
120
In their Return, Minister Enrile, General Ramos, and General Tan-Gatue contended that the privilege
of the Writ of Habeas Corpus was suspended as to Attys. Ilagan, Arellano, and Risonar by virtue of
Proclamation No. 2045-A. The lawyers, according to respondents, allegedly "played active roles in
organizing mass actions of the Communist Party of the Philippines and the National Democratic
Front."
121
122
After hearing respondents on their Return, this court ordered the temporary release of Attys. Ilagan,
Arellano, and Risonar on the recognizance of their counsels, retired Chief Justice Roberto
Concepcion and retired Associate Justice Jose B.L. Reyes.
123
Instead of releasing Attys. Ilagan, Arellano, and Risonar, however, Minister Enrile, General Ramos,
and General Tan-Gatue filed a Motion for Reconsideration. They filed an Urgent
Manifestation/Motion stating that Informations for rebellion were filed against Attys. Ilagan, Arellano,
and Risonar. They prayed that this court dismiss the Petition for Habeas Corpus for being moot and
academic.
124
125
The Integrated Bar of the Philippines, the Free Legal Assistance Group, and the Movement of
Attorneys for Brotherhood, Integrity and Nationalism opposed the motion. According to them, no
preliminary investigation was conducted before the filing of the Information. Attys. Ilagan, Arellano,
and Risonar were deprived of their right to due process. Consequently, the Information was void.
126
This court dismissed the Petition for Habeas Corpus, ruling that it became moot and academic with
the filing of the Information against Attys. Ilagan, Arellano, and Risonar in court:
127
As contended by respondents, the petition herein has been rendered moot and academic by virtue
of the filing of an Information against them for Rebellion, a capital offense, before the Regional Trial
Court of Davao City and the issuance of a Warrant of Arrest against them. The function of the special
proceeding of habeas corpusis to inquire into the legality of ones detention. Now that the detained
attorneys incarceration is by virtue of a judicial order in relation to criminal cases subsequently filed
against them before the Regional Trial Court of Davao City, the remedy of habeas corpus no longer
lies. The Writ had served its purpose. (Citations omitted)
128
This court likewise dismissed the Petitions for habeas corpus in Umil v. Ramos. Roberto Umil,
Rolando Dural,Renato Villanueva, Amelia Roque, Wilfredo Buenaobra, Atty. Domingo Anonuevo,
Ramon Casiple, Vicky A. Ocaya, Deogracias Espiritu, and Narciso B. Nazareno were all arrested
without a warrant for their alleged membership in the Communist Party of the Philippines/New
Peoples Army.
129
130
During the pendency of the habeas corpus proceedings, however, Informations against them were
filed before this court. The filing of the Informations, according to this court, rendered the Petitions for
habeas corpus moot and academic, thus:
131
It is to be noted that, in all the petitions here considered, criminal charges have been filed in the
proper courts against the petitioners. The rule is, that if a person alleged to be restrained of his
liberty is in the custody of an officer under process issued by a court or judge, and that the court or
judge had jurisdiction to issue the process or make the order, or if such person is charged before any
court, the writ of habeas corpus will not be allowed. (Emphasis in the original) In such cases,
instead of availing themselves of the extraordinary remedy of a petition for habeas corpus, persons
restrained under a lawful process or order of the court must pursue the orderly course of trial and
exhaust the usual remedies. This ordinary remedy is to file a motion to quash the information or the
warrant of arrest.
132
133
134
At any time before a plea is entered, the accused may file a motion to quash complaint or
information based on any of the grounds enumerated in Rule 117, Section 3 of the Rules of Court:
135
SEC. 3. Grounds.The accused may move to quash the complaint or information on any of the
following grounds:
(a) That the facts charged do not constitute an offense;
(b) That the court trying the case has no jurisdiction over the offense charged;
(c) That the court trying the case has no jurisdiction over the person of the accused;
(d) That the officer who filed the information had no authority to do so;
(e) That it does not conform substantially to the prescribed form;
(f) That more than one offense is charged except when a single punishment for various
offenses is prescribed by law;
(g) That the criminal action or liability has been extinguished;
(h) That it contains averments which, if true, would constitute a legal excuse or justification;
and (i) That the accused has been previously convicted or acquitted of the offense charged,
or the case against him was dismissed or otherwise terminated without his express consent.
In filing a motion to quash, the accused "assails the validity of a criminal complaint or information
filed against him [or her] for insufficiency on its face in point of law, or for defects which are apparent
in the face of the information." If the accused avails himself or herself of a motion to quash, the
accused "hypothetical[ly] admits the facts alleged in the information." "Evidence aliunde or matters
extrinsic from the information are not to be considered."
136
137
138
"If the motion to quash is based on an alleged defect of the complaint or information which can be
cured by amendment, the court shall order [the] amendment [of the complaint or information]." If
the motion to quash is based on the ground that the facts alleged in the complaint or information do
not constitute an offense, the trial court shall give the prosecution "an opportunity to correct the
defect by amendment." If after amendment, the complaint or information still suffers from the same
defect, the trial court shall quash the complaint or information.
139
140
141
IV
However, Ilagan and Umil do not apply to this case. Petitioner Salibo was not arrested by virtue of
any warrant charging him of an offense. He was not restrained under a lawful process or an order of
a court. He was illegally deprived of his liberty, and, therefore, correctly availed himself of a Petition
for Habeas Corpus.
142
The Information and Alias Warrant of Arrest issued by the Regional Trial Court, Branch 221, Quezon
City in People of the Philippines v. Datu Andal Ampatuan, Jr., et al.charged and accused Butukan S.
Malang, not Datukan Malang Salibo, of57 counts of murder in connection with the Maguindanao
Massacre.
Furthermore, petitioner Salibo was not validly arrested without a warrant. Rule 113, Section 5 of the
Rules of Court enumerates the instances when a warrantless arrest may be made:
SEC. 5. Arrest without warrant; when lawful.A peace officer or a private person may, without a
committed it; and
In cases falling under paragraphs(a) and (b) above, the person arrested without a warrant shall be
forthwith delivered to the nearest police station or jail and shall be proceeded against in accordance
with section 7 of Rule 112.
It is undisputed that petitioner Salibo presented himself before the Datu Hofer Police Station to clear
his name and to prove that he is not the accused Butukan S. Malang. When petitioner Salibo was in
the presence of the police officers of Datu Hofer Police Station, he was neither committing nor
attempting to commit an offense. The police officers had no personal knowledge of any offense that
he might have committed. Petitioner Salibo was also not an escapee prisoner.
The police officers, therefore, had no probable cause to arrest petitioner Salibo without a warrant.
They deprived him of his right to liberty without due process of law, for which a petition for habeas
corpus may be issued.
The arrest of petitioner Salibo is similar to the arrest of Atty. Risonar in the "disturbing" case of
Ilagan. Like petitioner Salibo, Atty. Risonar went to Camp Catitipan to verify and contest any arrest
papers against him. Then and there, Atty. Risonar was arrested without a warrant. In his dissenting
opinion in Ilagan, Justice Claudio Teehankee stated that the lack of preliminary investigation
deprived Atty. Risonar, together with Attys. Ilagan and Arellano, of his right to due process of law a
ground for the grant of a petition for habeas corpus: The majority decision holds that the filing of the
information without preliminary investigation falls within the exceptions of Rule 112, sec. 7 and Rule
113, sec. 5 of the 1985 Rules on Criminal Procedure. Again, this is erroneous premise. The fiscal
misinvoked and misapplied the cited rules. The petitioners are not persons "lawfully arrested without
a warrant." The fiscal could not rely on the stale and inoperative PDA of January 25, 1985.
Otherwise, the rules would be rendered nugatory, if all that was needed was to get a PDA and then
serve it at ones whim and caprice when the very issuance of the PDA is premised on its imperative
urgency and necessity as declared by the President himself. The majority decision then relies on
Rule 113, Sec. 5 which authorizes arrests without warrant by a citizen or by a police officer who
witnessed the arrestee in flagrante delicto, viz. in the act of committing the offense. Quite obviously,
the arrest was not a citizens arrest nor were they caught in flagrante delicto violating the law. In fact,
this Court in promulgating the 1985 Rules on Criminal Procedure have tightened and made the rules
more strict. Thus, the Rule now requires that an offense "has in fact just been committed." This
connotes immediacy in point of time and excludes cases under the old rule where an offense "has in
fact been committed" no matter how long ago. Similarly, the arrestor must have "personal knowledge
of facts indicating that the [arrestee] has committed it" (instead of just "reasonable ground to believe
that the [arrestee] has committed it" under the old rule). Clearly, then, an information could not just
be filed against the petitioners without due process and preliminary investigation. (Emphasis in the
original, citation omitted)
143
144
145
146
147
Petitioner Salibos proper remedy is not a Motion to Quash Information and/or Warrant of Arrest.
None of the grounds for filing a Motion to Quash Information apply to him. Even if petitioner Salibo
filed a Motion to Quash, the defect he alleged could not have been cured by mere amendment of the
Information and/or Warrant of Arrest. Changing the name of the accused appearing in the
Information and/or Warrant of Arrest from "Butukan S. Malang" to "Datukan Malang Salibo" will not
cure the lack of preliminary investigation in this case.
A motion for reinvestigation will not cure the defect of lack of preliminary investigation. The
Information and Alias Warrant of Arrest were issued on the premise that Butukan S. Malang and
Datukan Malang Salibo are the same person. There is evidence, however, that the person detained
by virtue of these processes is not Butukan S. Malang but another person named Datukan Malang
Salibo.
Petitioner Salibo presented in evidence his Philippine passport, his identification card from the
Office on Muslim Affairs, his Tax Identification Number card, and clearance from the National
Bureau of Investigation all bearing his picture and indicating the name "Datukan Malang Salibo."
148
149
151
150
None of these government-issued documents showed that petitioner Salibo used the alias "Butukan
S. Malang."
Moreover, there is evidence that petitioner Salibo was not in the country on November 23, 2009
when the Maguindanao Massacre occurred.
1wphi1
A Certification from the Bureau of Immigration states that petitioner Salibo departed for Saudi
Arabia on November 7, 2009 and arrived in the Philippines only on December 20, 2009. A
Certification from Saudi Arabian Airlines attests that petitioner Salibo departed for Saudi Arabia on
board Saudi Arabian Airlines Flight SV869 on November 7, 2009 and that he arrived in the
Philippines on board Saudi Arabian Airlines SV870 on December 20, 2009.
152
153
V
People of the Philippines v. Datu Andal Ampatuan, Jr., et al. is probably the most complex case
pending in our courts. The case involves 57 victims and 197 accused, two (2) of which have
become state witnesses. As of November 23, 2014, 111 of the accused have been arraigned, and
70 have filed petitions for bail of which 42 have already been resolved. To require petitioner Salibo
to undergo trial would be to further illegally deprive him of his liberty. Urgency dictates that we
resolve his Petition in his favor given the strong evidence that he is not Butukan S. Malang.
154
155
156
In ordering petitioner Salibos release, we are prejudging neither his guilt nor his innocence.
However, between a citizen who has shown that he was illegally deprived of his liberty without due
process of law and the government that has all the "manpower and the resources at [its]
command" to properly indict a citizen but failed to do so, we will rule in favor of the citizen. Should
the government choose to prosecute petitioner Salibo, it must pursue the proper remedies against
him as provided in our Rules. Until then, we rule that petitioner Salibo is illegally deprived of his
liberty. His Petition for Habeas Corpus must be granted.
157
WHEREFORE, the Petition for Review on Certiorari is GRANTED. The Court of Appeals Decision
dated April 19, 2011 is REVERSED and SET ASIDE. Respondent Warden, Quezon City Jail Annex,
Bureau of Jail Management and Penology Building,Camp Bagong Diwa, Taguig, is ORDERED to
immediately RELEASE petitioner Datukan Malang Salibo from detention.
The Letter of the Court of Appeals elevating the records of the case to this court is hereby NOTED.
SO ORDERED.

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G.R. Nos.

107200-03 November 9, 1993

feloniously defraud Leopoldo Realino y Arceo in the following

November 10, 2014

JOEY M. PESTILOS, DWIGHT MACAPANAS, MIGUEL GACES, JERRY FERNANDEZ and

The Assailed CA Decision

No freeman shall be taken, or imprisoned, or be disseised of his Freehold, or Liberties, or free

ii) Second and Third Elements of Section 5(b), Rule 113:

knowledge of facts or circumstances that the person

V. The Order denying the motion for preliminary

MAXIMO V. SOLIVEN, ANTONIO V. ROCES, FREDERICK K. AGCAOLI, and GODOFREDO L.

GUTIERREZ, JR., J., concurring:

Thus we consider this case against the background of a profound national

The United States Supreme Court is even more emphatic, to wit:

Section 37 of the Immigration Law, which empowers the Commissioner of

WHEREFORE, judgment is hereby rendered declaring illegal the detention of plaintiff

and preliminary injunction proceedings.

Done this 26th day of March, 1966 at the City of Butuan.

(SGD.) MONTANO A. ORTIZ

3/31/66 (Sgd.) B. Galimba 3/30/00 7:00

(Sgd.) Eliseo Alimpoos

Received copy March 31, 1966 8:00 A.M.

By: (Sgd.) Eliseo Alimpoos

March 31, 1966

For the Chief of Police 3-30-66

BY REG. MAIL #11633 & #11634

A certified true copy:

March 31, 1966

Superimposed on it in ink is No. 11633

March 31, 1966

Capt. Cunanan by reg. mail #11633 & #11634

(b) The officer or name of the person by whom he is so imprisoned or restrained;

In view of the foregoing considerations, it should be practical to resolve this case in a

G.R. No. 186529

PEOPLE OF THE PHILIPPINES, Appellee,

During the arraignment, appellant pleaded "Not Guilty" to both charges.

The determination of the existence or absence of probable cause necessitates a reexamination of

The Factual Antecedents

The RTCs Ruling

The petitioner filed an appeal with the CA.

The Petitioners Position

The Courts Ruling

To determine the admissibility of the seized drugs in evidence, it is indispensable to ascertain

The pertinent testimony of Tan, as quoted by the CA, is as follows:

January 18, 2001

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

And what were you doing there at that time?

I was in the house because I was watching my father, sir.

What was your father doing at that time?

[O)ur house was being stoned.

Who was stoning your house?

Cesar Givera, sir.

Was he alone at that time?

Onying [Epifanio Gayon], sir.

You said he was already "nakakulong"?

So how many persons in all have you seen?

They were four in all, sir.

On cross-examination, Milagros Gardon said:6

Who else were with you at that time?

My brother and sister, sir.

They were Laura Gardon and Leonardo Gardon, correct?

And you were watching TV at that time, correct?

This Onying [Epifanio Gayon] suddenly entered your house, correct?