During the arraignment, the accused pleaded not guilty. Trial ensued.
THIRD DIVISION
[G.R. No. 143944. July 11, 2002.]
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs. BASHER BONGCARAWAN y MACARAMBON,
accused-appellant.
DECISION
PUNO, J p:
This is an appeal from the Decision 1 dated December 27, 1999 of the Regional
Trial Court of Iligan City, Branch 06, in Criminal Case No. 06-7542, finding
accused Basher Bongcarawan y Macarambon guilty beyond reasonable doubt of
violation of Section 16, Article III of REPUBLIC ACT NO. 6425 2 as amended,
and sentencing him to suffer the penalty of reclusion perpetua, and to pay a fine
of Five Hundred Thousand Pesos (P500,000.00) without subsidiary imprisonment
in case of insolvency. cDAITS
Accused Basher Bongcarawan y Macarambon was charged in an Information
which reads, thus: cEaSHC
"That on or about March 13, 1999, in the City of Iligan,
Philippines, and within the jurisdiction of this Honorable
Court, the said accused, without authority of law, did then and
there wilfully, unlawfully and feloniously have in his
possession, custody and control eight (8) packs of
Methamphetamine Hydrochloride, a regulated drug
commonly known as Shabu, weighing approximately 400
grams, without the corresponding license or prescription.
Contrary to and in violation of Section 16, Article III of RA
6425, otherwise known as the Dangerous Drugs Act of 1972,
as amended by RA 7659." 3
Evidence for the prosecution shows that on March 11, 1999, an interisland
passenger ship, M/V Super Ferry 5, sailed from Manila to Iligan City. At about
3:00 a.m. on March 13, 1999, the vessel was about to dock at the port of Iligan
City when its security officer, Mark Diesmo, received a complaint from passenger
Lorena Canoy about her missing jewelry. Canoy suspected one of her co-
passengers at cabin no. 106 as the culprit. Diesmo and four (4) other members of
the vessel security force accompanied Canoy to search for the suspect whom they
later found at the economy section. 4 The suspect was identified as the accused,
Basher Bongcarawan. The accused was informed of the complaint and was invited
to go back to cabin no. 106. With his consent, he was bodily searched, but no
jewelry was found. He was then escorted by two (2) security agents back to the
economy section to get his baggage. The accused took a Samsonite suitcase and
brought this back to the cabin. When requested by the security, the accused
opened the suitcase, revealing a brown bag and small plastic packs containing
white crystalline substance. Suspecting the substance to be "shabu," the security
personnel immediately reported the matter to the ship captain and took pictures of
the accused beside the suitcase and its contents. They also called the Philippine
Coast Guard for assistance. 5 At about 6:00 a.m., Lt. Robert Patrimonio, YN
Aurelio Estoque, CD2 Phoudinie Lantao and RM3 Merchardo De Guzman of the
Philippine Coast Guard arrived and took custody of the accused and the seized
items the Samsonite suitcase, a brown bag 6 and eight (8) small plastic packs
of white crystalline substance. 7 When asked about the contraband articles, the
accused explained that he was just requested by a certain Alican "Alex" Macapudi
to bring the suitcase to the latter's brother in Iligan City. 8 The accused and the
seized items were later turned over by the coast guard to the Presidential Anti-
Organized Crime Task Force (PAOCTF). Chief Inspector Graciano Mijares and
his men brought the accused to the PAOCTF Headquarters, 9 while the packs of
white crystalline substance were sent to the NBI Regional Office in Cagayan de
Oro City for laboratory examination. NBI Forensic Chemist Nicanor Cruz later
confirmed the substance to be methamphetamine hydrochloride, commonly
known as "shabu," weighing 399.3266 grams. 10
The accused testified and proffered his own version. On March 11, 1999, at about
10:00 p.m., he was in Quiapo, Manila where he met Alican "Alex" Macapudi, a
neighbor who has a store in Marawi City. He was requested by Macapudi to bring
a Samsonite suitcase containing sunglasses and watches to Iligan City, and to give
it to Macapudi's brother at the Iligan port. He boarded the M/V Super Ferry 5 on
the same night, carrying a big luggage full of clothes, a small luggage or "maleta"
containing the sunglasses and brushes he bought from Manila, and the Samsonite
suitcase of Macapudi. 11 He stayed at cabin no. 106. At about 4:00 a.m. of March
13, 1999, as the vessel was about to dock at the Iligan port, he took his baggage
1
and positioned himself at the economy section to be able to disembark ahead of
the other passengers. There, he met a friend, Ansari Ambor. While they were
conversing, five (5) members of the vessel security force and a woman whom he
recognized as his co-passenger at cabin no. 106 came and told him that he was
suspected of stealing jewelry. He voluntarily went with the group back to cabin
no. 106 where he was frisked. Subsequently, he was asked to get his baggage, so
he went back to the economy section and took the big luggage and Macapudi's
Samsonite suitcase. He left the small "maleta" containing sunglasses and brushes
for fear that they would be confiscated by the security personnel. When requested,
he voluntarily opened the big luggage, but refused to do the same to the
Samsonite suitcase which he claimed was not his and had a secret combination
lock. The security personnel forcibly opened the suitcase and found packs of
white crystalline substance inside which they suspected to be "shabu." They took
pictures of him with the merchandise, and asked him to sign a turn over receipt
which was later given to the Philippine Coast Guard, then to the PAOCTF. 12
On December 27, 1999, the trial court rendered judgment, the dispositive portion
of which reads:
"WHEREFORE, the court finds the accused Basher
Bongcarawan y Macarambon GUILTY beyond reasonable
doubt as principal of the offense of violation of Section 16,
Art. III, R.A. No. 6425 as amended by R.A. NO. 7659 and
hereby imposes upon him the penalty of RECLUSION
PERPETUA and a fine of FIVE HUNDRED THOUSAND
(P500,000.00) PESOS, without subsidiary imprisonment in
case of insolvency.
Having been under preventive imprisonment since March 13,
1999 until the present, the period of such preventive detention
shall be credited in full in favor of the accused in the service
of his sentence.
The 399.3266 grams of methamphetamine hydrochloride or
shabu is hereby ordered delivered to the National Bureau of
Investigation for proper disposition.
SO ORDERED." 13
Hence, this appeal where the accused raises the following assignment of errors:
"I.
THE COURT A QUO ERRED IN SO HOLDING THAT
THE DRUG CONFISCATED IS ADMISSIBLE IN
EVIDENCE AGAINST THE ACCUSED/APPELLANT.
II.
THE COURT A QUO ERRED IN SO HOLDING THAT
THE APPELLANT OWNED THE CONFISCATED
EVIDENCE AND THEREFORE ADMISSIBLE IN
EVIDENCE AGAINST HIM." 14
On the first assignment of error, the accused-appellant contends that the
Samsonite suitcase containing the methamphetamine hydrochloride or
"shabu" was forcibly opened and searched without his consent, and hence, in
violation of his constitutional right against unreasonable search and seizure. Any
evidence acquired pursuant to such unlawful search and seizure, he claims, is
inadmissible in evidence against him. He also contends that People v. Marti 15 is
not applicable in this case because a vessel security personnel is deemed to
perform the duties of a policeman.
The contentions are devoid of merit.
The right against unreasonable search and seizure is a fundamental right protected
by the Constitution. 16 Evidence acquired in violation of this right shall be
inadmissible for any purpose in any proceeding. 17 Whenever this right is
challenged, an individual may choose between invoking the constitutional
protection or waiving his right by giving consent to the search and seizure. It
should be stressed, however, that protection is against transgression committed by
the government or its agent. As held by this Court in the case of People v. Marti,
18 "[i]n the absence of governmental interference, liberties guaranteed by the
Constitution cannot be invoked against the State." 19 The constitutional
proscription against unlawful searches and seizures applies as a restraint directed
only against the government and its agencies tasked with the enforcement of the
law. Thus, it could only be invoked against the State to whom the restraint against
arbitrary and unreasonable exercise of power is imposed. 20
In the case before us, the baggage of the accused-appellant was searched by
the vessel security personnel. It was only after they found "shabu" inside the
suitcase that they called the Philippine Coast Guard for assistance. The
2
search and seizure of the suitcase and the contraband items was therefore
carried out without government intervention, and hence, the constitutional
protection against unreasonable search and seizure does not apply.
There is no merit in the contention of the accused-appellant that the search
and seizure performed by the vessel security personnel should be considered
as one conducted by the police authorities for like the latter, the former are
armed and tasked to maintain peace and order. The vessel security officer in
the case at bar is a private employee and does not discharge any
governmental function. In contrast, police officers are agents of the state
tasked with the sovereign function of enforcement of the law. Historically and
until now, it is against them and other agents of the state that the protection
against unreasonable searches and seizures may be invoked.
On the second assignment of error, the accused-appellant contends that he is not
the owner of the Samsonite suitcase and he had no knowledge that the same
contained "shabu." He submits that without knowledge or intent to possess the
dangerous drug, he cannot be convicted of the crime charged. 21
We are not persuaded.
In a prosecution for illegal possession of dangerous drugs, the following facts
must be proven beyond reasonable doubt, viz: (1) that the accused is in
possession of the object identified as a prohibited or a regulated drug; (2) that
such possession is not authorized by law; and (3) that the accused freely and
consciously possessed the said drug. 22 The first two elements were sufficiently
proven in this case, and were in fact undisputed. We are left with the third.
As early as 1910 in the case of United States v. Tan Misa, 23 this Court has ruled
that to warrant conviction, the possession of dangerous drugs must be with
knowledge of the accused, or that animus possidendi existed together with the
possession or control of such articles. 24 It has been ruled, however, that
possession of dangerous drugs constitutes prima facie evidence of knowledge or
animus possidendi sufficient to convict an accused in the absence of a satisfactory
explanation of such possession. 25 Hence, the burden of evidence is shifted to the
accused to explain the absence of knowledge or animus possidendi. 26
In this respect, the accused-appellant has utterly failed. His testimony,
uncorroborated, self-serving and incredulous, was not given credence by the trial
court. We find no reason to disagree. Well-settled is the rule that in the absence of
palpable error or grave abuse of discretion on the part of the trial judge, the trial
court's evaluation of the credibility of witnesses will not be disturbed on appeal.
27 Moreover, evidence must be credible in itself to deserve credence and weight
in law. In this case, the accused-appellant admits that when he was asked to get
his baggage, he knew it would be inspected. 28 Why he got the Samsonite
suitcase allegedly not owned by him and which had a combination lock known
only to the owner remains unclear. He also claims that he did not present his small
"maleta" for inspection for fear that its contents consisting of expensive
sunglasses and brushes would be confiscated, 29 but he brought the Samsonite
suitcase which is not his and also contained expensive sunglasses, and even
watches. 30
The things in possession of a person are presumed by law to be owned by him. 31
To overcome this presumption, it is necessary to present clear and convincing
evidence to the contrary. In this case, the accused points to a certain Alican
"Alex" Macapudi as the owner of the contraband, but presented no evidence to
support his claim. As aptly observed by the trial judge:
"First, who is Alex Macap[u]di aka Ali[c]an Macap[u]di?
Does he really exist or simply a figment of the imagination?
He says that Alex Macap[u]di is a friend and a fellow
businessman who has a stall selling sunglasses in Marawi
City. But no witnesses were presented to prove that there is
such a living, breathing, flesh and blood person named Alex
Macap[u]di who entrusted the Samsonite to the accused.
Surely, if he does exist, he has friends, fellow businessmen
and acquaintances who could testify and support the claim of
the accused." 32
Mere denial of ownership will not suffice especially if, as in the case at bar, it
is the keystone of the defense of the accused-appellant. Stories can easily be
fabricated. It will take more than bare-bone allegations to convince this Court
that a courier of dangerous drugs is not its owner and has no knowledge or
intent to possess the same.
WHEREFORE, the decision of the Regional Trial Court of Iligan City, Branch
06, in Criminal Case No. 06-7542, convicting accused-appellant Basher
Bongcarawan of violation of Section 16, Article III of REPUBLIC ACT NO.
6425, as amended, and sentencing him to suffer the penalty of Reclusion Perpetua
and to pay a fine of Five Hundred Thousand Pesos (P500,000.00) without
subsidiary imprisonment in case of insolvency, is AFFIRMED.
3
SECOND DIVISION
[G.R. Nos. 133254-55. April 19, 2001.]
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs. ROBERTO SALANGUIT y KO, accused-appellant.
DECISION
MENDOZA, J p:
This is an appeal from the decision, 1 dated January 27, 1998, of the Regional
Trial Court, Branch 96, Quezon City, finding accused-appellant Roberto Salanguit
y Ko guilty of violation of 16 of REPUBLIC ACT NO. 6425, as amended, and
sentencing him accordingly to suffer imprisonment ranging from six (6) months
of arresto mayor, as minimum, to four (4) years and two (2) months of prision
correccional, as maximum, and of 8 of the same law and sentencing him for
such violation to suffer the penalty of reclusion perpetua and to pay a fine of
P700,000.00.
Charges against accused-appellant for violations of R.A. No. 6425 were filed on
December 28, 1995. In Criminal Case No. Q-95-64357, the information alleged:
That on or about the 26th day of December 1995, in Quezon
City, Philippines, the said accused, did then and there
willfully, unlawfully and knowingly possess and/or use
11.14 grams of Methamphetamine Hydrochloride (Shabu)
a regulated drug, without the necessary license and/or
prescription therefor, in violation of said law.
CONTRARY TO LAW. 2
In Criminal Case No. Q-95-64358, the information charged:
That on or about the 26th day of December 1995, in Quezon
City, Philippines, the said accused not being authorized by
law to possess or use any prohibited drug, did, then and there
willfully, unlawfully and knowingly have in his possession
and under his custody and control 1,254 grams of Marijuana,
a prohibited drug. aSECAD
CONTRARY TO LAW. 3
When arraigned on May 21, 1996, accused-appellant pleaded not guilty, 4
whereupon he was tried.
Three witnesses were presented by the prosecution: P/Insp. Sonia S. Ludovico,
forensic chemist and chief of the Physical Science Branch of the Philippine
National Police Crime Laboratory, Senior Inspector Rodolfo Aguilar of the
Narcotics Command, Camp Crame, Quezon City, and PO3 Rolando Duazo of
Station 10, Kamuning, Quezon City, a field operative. The prosecution evidence
established the following:
On December 26, 1995, Sr. Insp. Aguilar applied for a warrant 5 in the Regional
Trial Court, Branch 90, Dasmarias, Cavite, to search the residence of accused-
appellant Robert Salanguit y Ko on Binhagan St., Novaliches, Quezon City. He
presented as his witness SPO1 Edmund Badua, who testified that as a poseur-
buyer, he was able to purchase 2.12 grams of shabu from accused-appellant. The
sale took place in accused-appellant's room, and Badua saw that the shabu was
taken by accused-appellant from a cabinet inside his room. The application was
granted, and a search warrant was later issued by Presiding Judge Dolores L.
Espaol.
At about 10:30 p.m. of December 26, 1995, a group of about 10 policemen, along
with one civilian informer, went to the residence of accused-appellant to serve the
warrant. 6
The police operatives knocked on accused-appellant's door, but nobody opened it.
They heard people inside the house, apparently panicking. The police operatives
then forced the door open and entered the house. 7
After showing the search warrant to the occupants of the house, Lt. Cortes and his
group started searching the house. 8 They found 12 small heat-sealed transparent
plastic bags containing a white crystalline substance, a paper clip box also
containing a white crystalline substance, and two bricks of dried leaves which
appeared to be marijuana wrapped in newsprint 9 having a total weight of
approximately 1,255 grams. 10 A receipt of the items seized was prepared, but
the accused-appellant refused to sign it. 11
4
After the search, the police operatives took accused-appellant with them to Station
10, EDSA, Kamuning, Quezon City, along with the items they had seized. 12
PO3 Duazo requested a laboratory examination of the confiscated evidence. 13
The white crystalline substance with a total weight of 2.77 grams and those
contained in a small box with a total weight of 8.37 grams were found to be
positive for methamphetamine hydrochloride. On the other hand, the two bricks of
dried leaves, one weighing 425 grams and the other 850 grams, were found to be
marijuana. 14
For the defense, accused-appellant testified in his own behalf. His testimony was
corroborated by his mother-in-law, Soledad Arcano.
Accused-appellant testified that on the night of December 26, 1995, as they were
about to leave their house, they heard a commotion at the gate and on the roof of
their house. Suddenly, about 20 men in civilian attire, brandishing long firearms,
climbed over the gate and descended through an opening in the roof. 15
When accused-appellant demanded to be shown a search warrant, a piece of paper
inside a folder was waved in front of him. As accused-appellant fumbled for his
glasses, however, the paper was withdrawn and he had no chance to read it. 16
Accused-appellant claimed that he was ordered to stay in one place of the house
while the policemen conducted a search, forcibly opening cabinets and taking his
bag containing money, a licensed .45 caliber firearm, jewelry, and canned goods.
17
The policemen left at around 12:30 a.m. of December 27, 1995, and, after putting
handcuffs on accused-appellant, took him with them to the NARCOM on EDSA,
Quezon City, where accused-appellant was detained. 18
Accused-appellant's mother-in law, Soledad Arcano, corroborated his testimony.
Arcano testified that the policemen ransacked their house, ate their food, and took
away canned goods and other valuables. 19
After hearing, the trial court rendered its decision, the dispositive portion of which
reads:
WHEREFORE, judgment is hereby rendered:
1. In Criminal Case No. Q-95-64357, for violation of Sec. 16,
REPUBLIC ACT NO. 6425, as amended, finding the accused
ROBERTO SALANGUIT y KO guilty beyond reasonable
doubt of the crime charged and he is hereby accordingly
sentenced to suffer an indeterminate sentence with a
minimum of six (6) months of arresto mayor and a maximum
of four (4) years and two (2) months of prision correccional;
and,
2. In Criminal Case No. Q-95-64358, for violation of Sec. 8,
REPUBLIC ACT NO. 6425, as amended, finding the accused
ROBERTO SALANGUIT y KO guilty beyond reasonable
doubt of the crime charged and he is hereby accordingly
sentenced to suffer reclusion perpetua and to pay a fine of
P700,000.00.
The accused shall further pay the costs of suit.
The 11.14 grams of methamphetamine hydrochloride and the
1,254 grams of marijuana bricks are hereby confiscated and
condemned for disposition according to law. The evidence
custodian of this Court is hereby directed to turn such
substances over to the National Bureau of Investigation
pursuant to law.
SO ORDERED. 20
Hence this appeal. Accused-appellant contends that
THE COURT A QUO GRAVELY ERRED IN DECLARING
THE SEARCH WARRANT VALID
THE COURT A QUO ERRED IN CONVICTING
ACCUSED-APPELLANT FOR ILLEGAL POSSESSION
OF METHAMPHETAMINE HYDRO-CHLORIDE
(SHABU)
THE COURT A QUO GRAVELY ERRED IN
CONVICTING ACCUSED-APPELLANT FOR
VIOLATION 8, R.A. No. 6425
5
 THE COURT A QUO ERRED IN ADMITTING IN
EVIDENCE THE TWO (2) BRICKS OF MARIJUANA
THE COURT A QUO ERRED IN NOT FINDING THAT
THE POLICEMEN USED EXCESSIVE FORCE IN
ENFORCING THE SEARCH WARRANT.
Accused-appellant is contesting his conviction on three grounds. First, the
admissibility of the shabu allegedly recovered from his residence as evidence
against him on the ground that the warrant used in obtaining it was invalid.
Second, the admissibility in evidence of the marijuana allegedly seized from
accused-appellant pursuant to the "plain view" doctrine. Third, the employment of
unnecessary force by the police in the execution of the warrant.
First. Rule 126, 4 of the Revised Rules on Criminal Procedure 21 provides that a
search warrant shall not issue except upon probable cause in connection with one
specific offense 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 things to be seized which
may be anywhere in the Philippines.
In issuing a search warrant, judges must comply strictly with the requirements of
the Constitution and the Rules of Criminal Procedure. No presumption of
regularity can be invoked in aid of the process when an officer undertakes to
justify its issuance. 22 Nothing can justify the issuance of the search warrant
unless all the legal requisites are fulfilled.
In this case, the search warrant issued against accused-appellant reads:
SEARCH
WARRANT NO.
160
For: Violation of
RA 6425
SEARCH WARRANT
TO ANY PEACE OFFICER:
GREETINGS:
It appearing to the satisfaction of the undersigned after
examining under oath SR. INSP. RODOLFO V. AGUILAR,
PNP and his witness SPO1 EDMUND M. BADUA, PNP that
there is probable cause to believe that ROBERT
SALANGUIT has in his possession and control in his
premises Binhagan St., San Jose, Quezon City as shown in
Annex "A", the properties to wit: TcIAHS
UNDETERMINED QUANTITY OF SHABU AND DRUG
PARAPHERNALIA
which should be seized and brought to the undersigned.
You are hereby commanded to make an immediate search
anytime of the day/night of the premises above-described and
forthwith seize and take possession of the above-stated
properties and bring said properties to the undersigned to be
dealt with as the law directs.
GIVEN UNDER MY HAND this 26th day of December 1995
at Imus, Cavite, Philippines.
(SGD.) DOLORES
L. ESPAOL
Judge
Accused-appellant assails the validity of the warrant on three grounds: (1)
that there was no probable cause to search for drug paraphernalia; (2) that the
search warrant was issued for more than one specific offense; and (3) that the
place to be searched was not described with sufficient particularity.
Existence of Probable Cause
The warrant authorized the seizure of "undetermined quantity of shabu and drug
paraphernalia." Evidence was presented showing probable cause of the existence
of methamphetamine hydrochloride or shabu. Accused-appellant contends,
however, that the search warrant issued is void because no evidence was presented
6
showing the existence of drug paraphernalia and the same should not have been
ordered to be seized by the trial court. 23
The contention has no merit. To be sure, SPO1 Edmund Badua, the intelligence
officer who acted as a poseur-buyer, did not testify in the proceedings for the
issuance of a search warrant on anything about drug paraphernalia. He stated:
Q Being a member of the Intelligence and Operation Section,
NMDU, NARCOM, do you remember if you were
assigned into a monitoring or surveillance work?
A Yes, sir.
Q Of what particular assignment or area were you assigned
for monitoring or surveillance?
A Its within the Quezon City area particularly a house without
a number located at Binhagan St., San Jose, Quezon
City, sir.
Q Do you know the person who occupies the specific place?
A Yes, sir, he is ROBERT SALANGUIT @ Robert.
Q Are you familiar with that place?
A Yes, sir, as part of my surveillance, I was able to penetrate
inside the area and established contract with
ROBERT SALANGUIT alias Robert through my
friend who introduced me to the former.
Q In what particular occasion did you meet ROBERT
SALANGUIT alias Robert?
A When I was introduced by my friend as a good buyer and
drug pusher of shabu, sir.
Q Were you able to buy at that time?
A Yes, sir.
Q How much if you can still remember the amount involved?
A I was able to buy two point twelve (2.12) grams of shabu in
the amount of Two Thousand Seven Hundred Fifty
(P2,750.00) pesos, sir.
Q Having established contact with ROBERT SALANGUIT
@ Robert, do you know where the stuff (shabu) were
being kept?
A Yes, sir, inside a cabinet inside his room.
Q How were you able to know the place where he kept the
stuff?
A When I first bought the 2.12 grams of shabu from him, it
was done inside his room and I saw that the shabu
was taken by him inside his cabinet.
Q Do you know who is in control of the premises?
A Yes, sir, it was ROBERT SALANGUIT @ Robert.
Q How sure are you, that the shabu that you bought from
ROBERT SALANGUIT @ Robert is genuine
shabu?
A After I left the house of ROBERT SALANGUIT @ Robert,
I proceeded back to our office and reported the
progress of my mission to our Chief and presented to
him the 2.12 grams of shabu I bought from the
subject. Then afterwards, our Chief formally
requested the Chief PNP Central Crime Laboratory
Services, NPDC, for Technical Analysis which
yielded positive result for shabu, a regulated drug as
shown in the attached certification of PNP CLS
result No. D-414-95 dated 19 Dec. 95.
Q Do you have anything more to add or retract from your
statement?
7
 A Yes, sir, I was offered by him (ROBERT SALANGUIT @
Robert) that anything I wish to buy bigger quantity
of shabu, he is willing to transact to me on cash basis
at his price of One Thousand Seven Hundred Fifty
(P1,750.00) pesos per gram.
Q Are you willing to sign your statement freely and
voluntarily?
A Yes, sir. 24
However, the fact that there was no probable cause to support the application for
the seizure of drug paraphernalia does not warrant the conclusion that the search
warrant is void. This fact would be material only if drug paraphernalia was in fact
seized by the police. The fact is that none was taken by virtue of the search
warrant issued. If at all, therefore, the search warrant is void only insofar as it
authorized the seizure of drug paraphernalia, but it is valid as to the seizure of
methamphetamine hydrochloride as to which evidence was presented showing
probable cause as to its existence. Thus, in Aday v. Superior Court, 25 the warrant
properly described two obscene books but improperly described other articles. It
was held:
Although the warrant was defective in the respects noted, it
does not follow that it was invalid as a whole. Such a
conclusion would mean that the seizure of certain articles,
even though proper if viewed separately, must be condemned
merely because the warrant was defective with respect to
other articles. The invalid portions of the warrant are
severable from the authorization relating to the named books,
which formed the principal basis of the charge of obscenity.
The search for and seizure of these books, if otherwise valid,
were not rendered illegal by the defects concerning other
articles . . . In so holding we do not mean to suggest that
invalid portions of a warrant will be treated as severable
under all circumstances. We recognize the danger that
warrants might be obtained which are essentially general in
character but as to minor items meet the requirement of
particularity, and that wholesale seizures might be made
under them, in the expectation that the seizure would in any
event be upheld as to the property specified. Such an abuse of
the warrant procedure, of course, could not be tolerated.
It would be a drastic remedy indeed if a warrant, which was issued on probable
cause and particularly describing the items to be seized on the basis thereof, is to
be invalidated in toto because the judge erred in authorizing a search for other
items not supported by the evidence. 26 Accordingly, we hold that the first part
of the search warrant, authorizing the search of accused-appellant's house
for an undetermined quantity of shabu, is valid, even though the second part,
with respect to the search for drug paraphernalia, is not.
Specificity of the Offense Charged
Accused-appellant contends that the warrant was issued for more than one specific
offense because possession or use of methamphetamine hydrochloride and
possession of drug paraphernalia are punished under two different provisions of
R.A. No. 6425. 27 It will suffice to quote what this Court said in a similar case to
dispose of this contention:
While it is true that the caption of the search warrant states
that it is in connection with "Violation of R.A. 6425,
otherwise known as the Dangerous Drugs Act of 1972," it is
clearly recited in the text thereof that "There is probable cause
to believe that Adolfo Olaes alias 'Debie' and alias 'Baby' of
No. 628 Comia St., Filtration, Sta. Rita, Olongapo City, has in
their session and control and custody of marijuana dried
stalks/leaves/seeds/cigarettes and other regulated/prohibited
and exempt narcotics preparations which is the subject of the
offense stated above." Although the specific section of the
Dangerous Drugs Act is not pinpointed, there is no question at
all of the specific offense alleged to have been committed as a
basis for the finding of probable cause. The search warrant
also satisfies the requirement in the Bill of Rights of the
particularity of the description to be made of the "place to be
searched and the persons or things to be seized." 28
Indeed, in People v. Dichoso 29 the search warrant was also for "Violation of
R.A. 6425," without specifying what provisions of the law were violated, and it
authorized the search and seizure of "dried marijuana leaves and
methamphetamine hydrochloride (shabu) and sets of paraphernalias (sic)." This
Court, however, upheld the validity of the warrant:
Appellant's contention that the search warrant in question was
issued for more than (1) offense, hence, in violation of
Section 3, Rule 126 of the Rules of Court, is unpersuasive. He
8
 engages in semantic juggling by suggesting that since illegal
possession of shabu, illegal possession of marijuana and
illegal possession of paraphernalia are covered by different
articles and sections of the Dangerous Drugs Act of 1972, the
search warrant is clearly for more than one (1) specific
offense. In short, following this theory, there should have
been three (3) separate search warrants, one for illegal
possession of shabu, the second for illegal possession of
marijuana and the third for illegal possession of
paraphernalia. This argument is pedantic. The Dangerous
Drugs Act of 1972 is a special law that deals specifically with
dangerous drugs which are subsumed into "prohibited" and
"regulated" drugs and defines and penalizes categories of
offenses which are closely related or which belong to the
same class or species. Accordingly, one (1) search warrant
may thus be validly issued for the said violations of the
Dangerous Drugs Act. 30
Similarly, in another case, 31 the search warrant was captioned: "For Violation of
P.D. No. 1866 (Illegal Possession of Firearms, etc.)." The validity of the warrant
was questioned on the ground that it was issued without reference to any
particular provision in P.D. No. 1866, which punished several offenses. We held,
however, that while illegal possession of firearms is penalized under 1 of P.D.
No. 1866 and illegal possession of explosives is penalized under 3 thereof, the
decree is a codification of the various laws on illegal possession of firearms,
ammunitions, and explosives which offenses are so related as to be subsumed
within the category of illegal possession of firearms, etc. under P.D. No. 1866.
Thus, only one warrant was necessary to cover the violations under the various
provisions of the said law.
Particularity of the Place
Accused-appellant contends that the search warrant failed to indicate the place to
be searched with sufficient particularity.
This contention is without merit. As the Solicitor General states:
. . . While the address stated in the warrant is merely
"Binhagan St., San Jose, Quezon City," the trial court took
note of the fact that the records of Search Warrant Case No.
160 contained several documents which identified the
premises to be searched, to wit: 1) the application for search
warrant which stated that the premises to be searched was
located in between No. 7 and 11 at Binhagan Street, San Jose,
Quezon City; 2) the deposition of witness which described the
premises as "a house without a number located at Binhagan
St., San Jose, Quezon City; and 3) the pencil sketch of the
location of the premises to be searched. In fact, the police
officers who raided appellant's house under the leadership of
Police Senior Inspector Rodolfo Aguilar could not have been
mistaken as Inspector Aguilar resides in the same
neighborhood in Binhagan where appellant lives and in fact
Aguilar's place is at the end of appellant's place in Binhagan.
Moreover, the house raided by Aguilar's team is undeniably
appellant's house and it was really appellant who was the
target. The raiding team even first ascertained through their
informant that appellant was inside his residence before they
actually started their operation. 32
The rule is that a description of the place to be searched is sufficient if the officer
with the warrant can, with reasonable effort, ascertain and identify the place
intended to be searched. 33 For example, a search warrant authorized a search of
Apartment Number 3 of a building at 83 Pleasant Street, Malborough,
Massachusetts. As it turned out, there were five apartments in the basement and
six apartments on both the ground and top floors and that there was an Apartment
Number 3 on each floor. However, the description was made determinate by a
reference to the affidavit supporting the warrant that the apartment was occupied
by the accused "Morris Ferrante of 83 Pleasant Street, Malboro Mass." 34 In this
case, the location of accused-appellant's house being indicated by the evidence on
record, there can be no doubt that the warrant described the place to be searched
with sufficient particularity.
In sum, we hold that with respect to the seizure of shabu from accused-
appellant's residence, Search Warrant No. 160 was properly issued, such
warrant being founded on probable cause personally determined by the
judge under oath or affirmation of the deposing witness and particularly
describing the place to be searched and the things to be seized.
Second. The search warrant authorized the seizure of methamphetamine
hydrochloride or shabu but not marijuana. However, seizure of the latter drug is
being justified on the ground that the drug was seized within the "plain view" of
the searching party. This is contested by accused-appellant.
9
Under the "plain view doctrine," unlawful objects within the "plain view" of an
officer who has the right to be in the position to have that view are subject to
seizure and may be presented in evidence. 35 For this doctrine to apply, there
must be: (a) prior justification; (b) inadvertent discovery of the evidence; and (c)
immediate apparent illegality of the evidence before the police. 36 The question is
whether these requisites were complied with by the authorities in seizing the
marijuana in this case.
Prior Justification and Discovery by Inadvertence
Because the location of the shabu was indicated in the warrant and thus known to
the police operatives, it is reasonable to assume that the police found the packets
of the shabu first. Once the valid portion of the search warrant has been executed,
the "plain view doctrine" can no longer provide any basis for admitting the other
items subsequently found. As has been explained:
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. 37
The only other possible justification for an intrusion by the police is the conduct
of a search pursuant to accused-appellant's lawful arrest for possession of shabu.
However, a search incident to a lawful arrest is limited to the person of the one
arrested and the premises within his immediate control. 38 The rationale for
permitting such a search is to prevent the person arrested from obtaining a weapon
to commit violence, or to reach for incriminatory evidence and destroy it.
AHDcCT
The police failed to allege in this case the time when the marijuana was found,
i.e., whether prior to, or contemporaneous with, the shabu subject of the warrant,
or whether it was recovered on accused-appellant's person or in an area within his
immediate control. Its recovery, therefore, presumably during the search
conducted after the shabu had been recovered from the cabinet, as attested to by
SPO1 Badua in his deposition, was invalid.
Apparent Illegality of the Evidence
The marijuana bricks were wrapped in newsprint. There was no apparent illegality
to justify their seizure. This case is similar to People v. Musa 39 in which we
declared inadmissible the marijuana recovered by NARCOM agents because the
said drugs were contained in a plastic bag which gave no indication of its
contents. We explained:
Moreover, when the NARCOM agents saw the plastic bag
hanging in one corner of the kitchen, they had no clue as to its
contents. They had to ask the appellant what the bag
contained. When the appellant refused to respond, they
opened it and found the marijuana. Unlike Ker v. California,
where the marijuana was visible to the police officer's eyes,
the NARCOM agents in this case could not have discovered
the inculpatory nature of the contents of the bag had they not
forcibly opened it. Even assuming then, that the NARCOM
agents inadvertently came across the plastic bag because it
was within their "plain view," what may be said to be the
object in their "plain view" was just the plastic bag and not
the marijuana. The incriminating nature of the contents of the
plastic bag was not immediately apparent from the "plain
view" of said object. It cannot be claimed that the plastic bag
clearly betrayed its contents, whether by its distinctive
configuration, is transparency, or otherwise, that its contents
are obvious to an observer. 40
No presumption of regularity may be invoked by an officer in aid of the process
when he undertakes to justify an encroachment of rights secured by the
Constitution. 41 In this case, the marijuana allegedly found in the possession
of accused-appellant was in the form of two bricks wrapped in newsprint.
Not being in a transparent container, the contents wrapped in newsprint
could not have been readily discernible as marijuana. Nor was there mention
of the time or manner these items were discovered. Accordingly, for failure of
the prosecution to prove that the seizure of the marijuana without a warrant
was conducted in accordance with the "plain view doctrine," we hold that the
marijuana is inadmissible in evidence against accused-appellant. However,
the confiscation of the drug must be upheld.
10
Third. Accused-appellant claims that undue and unnecessary force was employed However, the confiscation of the 1,254 grams of marijuana, as well as the 11.14
by the searching party in effecting the raid. grams of methamphetamine hydrochloride, and its disposition as ordered by the
trial court is AFFIRMED.
Rule 126, 7 of the Revised Rules on Criminal Procedure 42 provides:
SO ORDERED. TaCDIc
Right to break door or window to effect search. The
officer, if refused admittance to the place of directed search Bellosillo, Quisumbing, Buena and De Leon, Jr., JJ., concur.
after giving notice of his purpose and authority, may break
open any outer or inner door or window of a house or any part ||| (People v. Salanguit y Ko, G.R. Nos. 133254-55, April 19, 2001)
of a house or anything therein to execute the warrant or
liberate himself or any person lawfully aiding him when
unlawfully detained therein.

Accused-appellant's claim that the policemen had clambered up the roof of his
house to gain entry and had broken doors and windows in the process is
unsupported by reliable and competent proof. No affidavit or sworn statement of
disinterested persons, like the barangay officials or neighbors, has been presented
by accused-appellant to attest to the truth of his claim.

In contrast, Aguilar and Duano's claim that they had to use some force in order to
gain entry cannot be doubted. The occupants of the house, especially accused-
appellant, refused to open the door despite the fact that the searching party
knocked on the door several times. Furthermore, the agents saw the suspicious
movements of the people inside the house. These circumstances justified the
searching party's forcible entry into the house, founded as it is on the
apprehension that the execution of their mission would be frustrated unless they
do so.

WHEREFORE, in Criminal Case No. Q-95-64357, the decision of the Regional

Trial Court, Branch 96, Quezon City, finding accused-appellant Roberto Salanguit
y Ko guilty of possession of illegal drugs under 16 of R.A. No. 6425, otherwise
known as the Dangerous Drugs Act, as amended, and sentencing him to suffer a
prison term ranging from six (6) months of arresto mayor, as minimum, and four
(4) years and two (2) months of prision correccional, as maximum, and ordering
the confiscation of 11.14 grams of methamphetamine hydrochloride is
AFFIRMED.

In Criminal Case No. Q-95-64358, the decision of the same court finding accused-
appellant Roberto Salanguit y Ko guilty of possession of prohibited drugs under
8 of R.A. No. 6425, as amended, and sentencing him to suffer the penalty of
reclusion perpetua and to pay a fine of P700,000.00 is hereby REVERSED and
SET ASIDE and accused-appellant is ACQUITTED of the crime charged.

11
EN BANC
[G.R. No. 82585. November 14, 1988.]
MAXIMO V. SOLIVEN, ANTONIO V. ROCES,
FREDERICK K. AGCAOILI, 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 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. No. 82827 and 83979.
SYLLABUS
1. CONSTITUTIONAL LAW; BILL OF RIGHTS; DUE PROCESS OF LAW;
RESPONDENT IN A CRIMINAL CASE NEED NOT FILE HIS COUNTER-
AFFIDAVITS BEFORE PRELIMINARY INVESTIGATION IS DEEMED
COMPLETED. 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 counter-affidavits if he is so minded.
2. ID.; ID.; RIGHT OF THE PEOPLE TO BE SECURE IN THEIR PERSONS,
HOUSES, PAPERS AND EFFECTS; ISSUANCE OF WARRANT OF ARREST;
PROBABLE CAUSE; THE JUDGE HAS EXCLUSIVE AND PERSONAL
RESPONSIBILITY TO DETERMINE EXISTENCE OF; THE PRESIDENT.
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.
3. ID.; ID.; ID.; ID.; HARASSMENT INHERENT IN ANY CRIMINAL
PROSECUTION; SUPREME COURT SHOULD DRAW THE
DEMARCATION LINE WHERE HARASSMENT GOES BEYOND USUAL
DIFFICULTIES ENCOUNTERED BY ANY ACCUSED. 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.
4. CONSTITUTIONAL LAW; BILL OF RIGHTS; FREEDOM OF SPEECH;
WHILE DEFAMATION IS NOT AUTHORIZED, CRITICISM IS TO BE
EXPECTED AND SHOULD BE BORNE FOR THE COMMON GOOD. 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
12
Court pointed out that while defamation is not authorized, criticism is to be
expected and should be borne for the common good.
5. REMEDIAL LAW; CRIMINAL PROCEDURE; PROSECUTION OF
OFFENSES; LIBEL; RULES THEREON SHOULD BE EXAMINED FROM
VARIOUS PERSPECTIVES IF DIRECTED AT A HIGH GOVERNMENT
OFFICIAL; THE SUPREME COURT SHOULD DRAW A FINE LINE
INSTEAD OF LEAVING IT TO A LOWER TRIBUNAL. 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.
6. ID.; ID.; FREEDOM OF EXPRESSION; SAFEGUARDS IN THE NAME
THEREOF SHOULD BE FAITHFULLY APPLIED IN TRIAL OF LIBEL
CASE. In the trial of the libel case against the petitioners, the safeguards in the
name of freedom of expression should be faithfully applied.
GUTIERREZ, JR., J., concurring:
1. REMEDIAL LAW; CRIMINAL PROCEDURE; MOTION TO QUASH;
COURT SHOULD NOT HESITATE TO QUASH A CRIMINAL
PROSECUTION IN INTEREST OF MORE ENLIGHTENED AND
SUBSTANTIAL JUSTICE. Consistent with our decision in Salonga v. Cruz
Pao (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.
2. ID.; ID.; PROSECUTION OF OFFENSES; LIBEL; CASE NOT A SIMPLE
PROSECUTION THEREFOR WHERE COMPLAINANT IS THE PRESIDENT;
JUDGE NOT REQUIRED TO PERSONALLY EXAMINE COMPLAINANT
AND HIS WITNESSES. What the Constitution underscores is the exclusive
and personal responsibility of the issuing judge to satisfy himself 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.
3. ID.; EXECUTIVE DEPARTMENT; PRESIDENT; IMMUNITY FROM SUIT;
RATIONALE. 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.
4. ID.; ID.; ID.; ID.; PRIVILEGE PERTAINS TO PRESIDENT BY VIRTUE OF
THE OFFICE AND MAY BE INVOKED ONLY BY HOLDER OF OFFICE.
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.
5. ID.; ID.; ID.; ID.; EXERCISE OF PRIVILEGE IS SOLELY THE
PRESIDENT'S PREROGATIVE. 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.
RESOLUTION
PER CURIAM p:
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 facie case 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)
13
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, petitioner's 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 counter-affidavits, he filed a "Motion to Declare
Proceeding 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 completed. All that is required is that the respondent be given
the opportunity to submit counter-affidavits 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 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.
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 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 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
14
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 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 revolves 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 Pao (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 s 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.
15
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 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 law the 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)
16
Shunting aside the individual liability of Mr. Luis Beltran, is there a prima facie safeguards evolved to prevent their invasion of freedom of
showing that Messrs. Maximo Soliven, Antonio V. Roces, Frederick K. Agcaoili, expression."
and Godofredo L. Manzanas knowingly participated in a wilful purveying of
falsehood? Considering the free speech aspects of these petitions, should not a In the trial of the libel case against the petitioners, the safeguards in the name of
differentiated approach to their particular liabilities be taken instead of lumping up freedom of expression should be faithfully applied.
everybody with the offending columnist? I realize that the law includes publishers
and editors but perhaps the "chilling effect" issue applies with singular effectivity
||| (Soliven v. Makasiar, G.R. No. 82585, 82827, 83979 (Resolution), November
to publishers and editors vis-a-vis newspaper columnists. There is no question 14, 1988)
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 deter 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 stand in the way of public duty. But why should we subject them to
this problem? And why should we allow 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 is 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

17
FIRST DIVISION
[G.R. No. 140946. September 13, 2004.]
MICROSOFT CORPORATION and LOTUS
DEVELOPMENT CORPORATION, petitioners, vs.
MAXICORP, INC., respondent.
DECISION
CARPIO, J p:
The Case
This petition for review on certiorari 1 seeks to reverse the Court of Appeals'
Decision 2 dated 23 December 1998 and its Resolution dated 29 November 1999
in CA-G.R. SP No. 44777. The Court of Appeals reversed the Order 3 of the
Regional Trial Court, Branch 23, Manila ("RTC"), denying respondent Maxicorp,
Inc.'s ("Maxicorp") motion to quash the search warrant that the RTC issued
against Maxicorp. Petitioners are the private complainants against Maxicorp for
copyright infringement under Section 29 of Presidential Decree No. 49 ("Section
29 of PD 49") 4 and for unfair competition under Article 189 of the Revised Penal
Code ("RPC"). 5
Antecedent Facts
On 25 July 1996, National Bureau of Investigation ("NBI") Agent Dominador
Samiano, Jr. ("NBI Agent Samiano") filed several applications for search warrants
in the RTC against Maxicorp for alleged violation of Section 29 of PD 49 and
Article 189 of the RPC. After conducting a preliminary examination of the
applicant and his witnesses, Judge William M. Bayhon issued Search Warrants
Nos. 96-451, 96-452, 96-453 and 96-454, all dated 25 July 1996, against
Maxicorp.
Armed with the search warrants, NBI agents conducted on 25 July 1996 a search
of Maxicorp's premises and seized property fitting the description stated in the
search warrants.
On 2 September 1996, Maxicorp filed a motion to quash the search warrants
alleging that there was no probable cause for their issuance and that the warrants
are in the form of "general warrants." The RTC denied Maxicorp's motion on
22 January 1997. The RTC also denied Maxicorp's motion for reconsideration.
The RTC found probable cause to issue the search warrants after examining NBI
Agent Samiano, John Benedict Sacriz ("Sacriz"), and computer technician
Felixberto Pante ("Pante"). The three testified on what they discovered during
their respective visits to Maxicorp. NBI Agent Samiano also presented
certifications from petitioners that they have not authorized Maxicorp to perform
the witnessed activities using petitioners' products.
On 24 July 1997, Maxicorp filed a petition for certiorari with the Court of
Appeals seeking to set aside the RTC's order. On 23 December 1998, the Court of
Appeals reversed the RTC's order denying Maxicorp's motion to quash the search
warrants. Petitioners moved for reconsideration. The Court of Appeals denied
petitioners' motion on 29 November 1999.
The Court of Appeals held that NBI Agent Samiano failed to present during the
preliminary examination conclusive evidence that Maxicorp produced or sold the
counterfeit products. The Court of Appeals pointed out that the sales receipt NBI
Agent Samiano presented as evidence that he bought the products from Maxicorp
was in the name of a certain "Joel Diaz."
Hence, this petition.
The Issues
Petitioners seek a reversal and raise the following issues for resolution:
1. WHETHER THE PETITION RAISES QUESTIONS OF
LAW;
2. WHETHER PETITIONERS HAVE LEGAL
PERSONALITY TO FILE THE PETITION;
3. WHETHER THERE WAS PROBABLE CAUSE TO
ISSUE THE SEARCH WARRANTS;
4. WHETHER THE SEARCH WARRANTS ARE
"GENERAL WARRANTS." IaECcH
18
 The Ruling of the Court
The petition has merit.
On Whether the Petition Raises Questions of Law
Maxicorp assails this petition as defective since it failed to raise questions of law.
Maxicorp insists that the arguments petitioners presented are questions of fact,
which this Court should not consider in a Rule 45 petition for review. Petitioners
counter that all the issues they presented in this petition involve questions of law.
Petitioners point out that the facts are not in dispute.
A petition for review under Rule 45 of the Rules of Court should cover questions
of law. 6 Questions of fact are not reviewable. As a rule, the findings of fact of the
Court of Appeals are final and conclusive and this Court will not review them on
appeal, 7 subject to exceptions as when the findings of the appellate court conflict
with the findings of the trial court. 8
The distinction between questions of law and questions of fact is settled. A
question of law exists when the doubt or difference centers on what the law is
on a certain state of facts. A question of fact exists if the doubt centers on the
truth or falsity of the alleged facts. Though this delineation seems simple,
determining the true nature and extent of the distinction is sometimes problematic.
For example, it is incorrect to presume that all cases where the facts are not in
dispute automatically involve purely questions of law.
There is a question of law if the issue raised is capable of being resolved without
need of reviewing the probative value of the evidence. 9 The resolution of the
issue must rest solely on what the law provides on the given set of circumstances.
Once it is clear that the issue invites a review of the evidence presented, the
question posed is one of fact. 10 If the query requires a re-evaluation of the
credibility of witnesses, or the existence or relevance of surrounding
circumstances and their relation to each other, the issue in that query is factual. 11
Our ruling in Paterno v. Paterno 12 is illustrative on this point:
Such questions as whether certain items of evidence should be
accorded probative value or weight, or rejected as feeble or
spurious, or whether or not the proofs on one side or the other
are clear and convincing and adequate to establish a
proposition in issue, are without doubt questions of fact.
Whether or not the body of proofs presented by a party,
weighed and analyzed in relation to contrary evidence
submitted by adverse party, may be said to be strong, clear
and convincing; whether or not certain documents presented
by one side should be accorded full faith and credit in the face
of protests as to their spurious character by the other side;
whether or not inconsistencies in the body of proofs of a party
are of such gravity as to justify refusing to give said proofs
weight all these are issues of fact.
It is true that Maxicorp did not contest the facts alleged by petitioners. But this
situation does not automatically transform all issues raised in the petition into
questions of law. The issues must meet the tests outlined in Paterno.
Of the three main issues raised in this petition the legal personality of the
petitioners, the nature of the warrants issued and the presence of probable cause
only the first two qualify as questions of law. The pivotal issue of whether
there was probable cause to issue the search warrants is a question of fact. At
first glance, this issue appears to involve a question of law since it does not
concern itself with the truth or falsity of certain facts. Still, the resolution of
this issue would require this Court to inquire into the probative value of the
evidence presented before the RTC. For a question to be one of law, it must not
involve an examination of the probative value of the evidence presented by the
litigants or any of them. 13
Yet, this is precisely what the petitioners ask us to do by raising arguments
requiring an examination of the TSNs and the documentary evidence presented
during the search warrant proceedings. In short, petitioners would have us
substitute our own judgment to that of the RTC and the Court of Appeals by
conducting our own evaluation of the evidence. This is exactly the situation which
Section 1, Rule 45 of the Rules of Court prohibits by requiring the petition to raise
only questions of law. This Court is not a trier of facts. It is not the function of this
court to analyze or weigh evidence. 14 When we give due course to such
situations, it is solely by way of exception. Such exceptions apply only in the
presence of extremely meritorious circumstances. 15
Indeed, this case falls under one of the exceptions because the findings of the
Court of Appeals conflict with the findings of the RTC. 16 Since petitioners
properly raised the conflicting findings of the lower courts, it is proper for this
Court to resolve such contradiction.
On Whether Petitioners have the Legal Personality to File this Petition
19
Maxicorp argues that petitioners have no legal personality to file this petition
since the proper party to do so in a criminal case is the Office of the Solicitor
General as representative of the People of the Philippines. Maxicorp states the
general rule but the exception governs this case. 17 We ruled in Columbia
Pictures Entertainment, Inc. v. Court of Appeals 18 that the petitioner-
complainant in a petition for review under Rule 45 could argue its case before this
Court in lieu of the Solicitor General if there is grave error committed by the
lower court or lack of due process. This avoids a situation where a complainant
who actively participated in the prosecution of a case would suddenly find itself
powerless to pursue a remedy due to circumstances beyond its control. The
circumstances in Columbia Pictures Entertainment are sufficiently similar to the
present case to warrant the application of this doctrine.
On Whether there was Probable Cause to Issue the Search Warrants
Petitioners argue that the Court of Appeals erred in reversing the RTC based on
the fact that the sales receipt was not in the name of NBI Agent Samiano.
Petitioners point out that the Court of Appeals disregarded the overwhelming
evidence that the RTC considered in determining the existence of probable cause.
Maxicorp counters that the Court of Appeals did not err in reversing the RTC.
Maxicorp maintains that the entire preliminary examination that the RTC
conducted was defective.
The Court of Appeals based its reversal on two factual findings of the RTC.
First, the fact that the sales receipt presented by NBI Agent Samiano as proof that
he bought counterfeit goods from Maxicorp was in the name of a certain "Joel
Diaz." Second, the fact that petitioners' other witness, John Benedict Sacriz,
admitted that he did not buy counterfeit goods from Maxicorp.
We rule that the Court of Appeals erred in reversing the RTC's findings.
Probable cause means "such reasons, supported by facts and circumstances as will
warrant a cautious man in the belief that his action and the means taken in
prosecuting it are legally just and proper." 19 Thus, probable cause for a search
warrant requires such facts and circumstances that would lead a reasonably
prudent man to believe that an offense has been committed and the objects sought
in connection with that offense are in the place to be searched. 20
The judge determining probable cause must do so only after personally examining
under oath the complainant and his witnesses. The oath required must refer to "the
truth of the facts within the personal knowledge of the petitioner or his witnesses,
because the purpose thereof is to convince the committing magistrate, not the
individual making the affidavit and seeking the issuance of the warrant, of the
existence of probable cause." 21 The applicant must have personal knowledge of
the circumstances. "Reliable information" is insufficient. 22 Mere affidavits are
not enough, and the judge must depose in writing the complainant and his
witnesses. 23
The Court of Appeals' reversal of the findings of the RTC centers on the fact that
the two witnesses for petitioners during the preliminary examination failed to
prove conclusively that they bought counterfeit software from Maxicorp. The
Court of Appeals ruled that this amounted to a failure to prove the existence of a
connection between the offense charged and the place searched.
The offense charged against Maxicorp is copyright infringement under Section 29
of PD 49 and unfair competition under Article 189 of the RPC. To support these
charges, petitioners presented the testimonies of NBI Agent Samiano, computer
technician Pante, and Sacriz, a civilian. The offenses that petitioners charged
Maxicorp contemplate several overt acts. The sale of counterfeit products is but
one of these acts. Both NBI Agent Samiano and Sacriz related to the RTC how
they personally saw Maxicorp commit acts of infringement and unfair
competition.
During the preliminary examination, the RTC subjected the testimonies of the
witnesses to the requisite examination. NBI Agent Samiano testified that he saw
Maxicorp display and offer for sale counterfeit software in its premises. He also
saw how the counterfeit software were produced and packaged within Maxicorp's
premises. NBI Agent Samiano categorically stated that he was certain the
products were counterfeit because Maxicorp sold them to its customers without
giving the accompanying ownership manuals, license agreements and certificates
of authenticity.
Sacriz testified that during his visits to Maxicorp, he witnessed several instances
when Maxicorp installed petitioners' software into computers it had assembled.
Sacriz also testified that he saw the sale of petitioners' software within Maxicorp's
premises. Petitioners never authorized Maxicorp to install or sell their software.
The testimonies of these two witnesses, coupled with the object and documentary
evidence they presented, are sufficient to establish the existence of probable
cause. From what they have witnessed, there is reason to believe that Maxicorp
20
engaged in copyright infringement and unfair competition to the prejudice of
petitioners. Both NBI Agent Samiano and Sacriz were clear and insistent that the
counterfeit software were not only displayed and sold within Maxicorp's premises,
they were also produced, packaged and in some cases, installed there.
The determination of probable cause does not call for the application of rules and
standards of proof that a judgment of conviction requires after trial on the merits.
As implied by the words themselves, "probable cause" is concerned with
probability, not absolute or even moral certainty. The prosecution need not present
at this stage proof beyond reasonable doubt. The standards of judgment are those
of a reasonably prudent man, 24 not the exacting calibrations of a judge after a
full-blown trial.
No law or rule states that probable cause requires a specific kind of evidence. No
formula or fixed rule for its determination exists. 25 Probable cause is determined
in the light of conditions obtaining in a given situation. 26 Thus, it was improper
for the Court of Appeals to reverse the RTC's findings simply because the sales
receipt evidencing NBI Agent Samiano's purchase of counterfeit goods is not in
his name.
For purposes of determining probable cause, the sales receipt is not the only proof
that the sale of petitioners' software occurred. During the search warrant
application proceedings, NBI Agent Samiano presented to the judge the
computer unit that he purchased from Maxicorp, in which computer unit
Maxicorp had pre-installed petitioners' software. 27 Sacriz, who was present
when NBI Agent Samiano purchased the computer unit, affirmed that NBI Agent
Samiano purchased the computer unit. 28 Pante, the computer technician,
demonstrated to the judge the presence of petitioners' software on the same
computer unit. 29 There was a comparison between petitioners' genuine software
and Maxicorp's software pre-installed in the computer unit that NBI Agent
Sambiano purchased. 30 Even if we disregard the sales receipt issued in the name
of "Joel Diaz," which petitioners explained was the alias NBI Agent Samiano used
in the operation, there still remains more than sufficient evidence to establish
probable cause for the issuance of the search warrants.
This also applies to the Court of Appeals' ruling on Sacriz's testimony. The fact
that Sacriz did not actually purchase counterfeit software from Maxicorp
does not eliminate the existence of probable cause. Copyright infringement and
unfair competition are not limited to the act of selling counterfeit goods. They
cover a whole range of acts, from copying, assembling, packaging to marketing,
including the mere offering for sale of the counterfeit goods. The clear and firm
testimonies of petitioners' witnesses on such other acts stand untarnished. The
Constitution and the Rules of Court only require that the judge examine
personally and thoroughly the applicant for the warrant and his witnesses to
determine probable cause. The RTC complied adequately with the
requirement of the Constitution and the Rules of Court. LibLex
Probable cause is dependent largely on the opinion and findings of the judge who
conducted the examination and who had the opportunity to question the applicant
and his witnesses. 31 For this reason, the findings of the judge deserve great
weight. The reviewing court should overturn such findings only upon proof that
the judge disregarded the facts before him or ignored the clear dictates of reason.
32 Nothing in the records of the preliminary examination proceedings reveal any
impropriety on the part of the judge in this case. As one can readily see, here the
judge examined thoroughly the applicant and his witnesses. To demand a
higher degree of proof is unnecessary and untimely. The prosecution would be
placed in a compromising situation if it were required to present all its evidence at
such preliminary stage. Proof beyond reasonable doubt is best left for trial.
On Whether the Search Warrants are in the Nature of General Warrants
A search warrant must state particularly the place to be searched and the
objects to be seized. The evident purpose for this requirement is to limit the
articles to be seized only to those particularly described in the search warrant.
This is a protection against potential abuse. It is necessary to leave the officers of
the law with no discretion regarding what articles they shall seize, to the end that
no unreasonable searches and seizures be committed. 33
In addition, under Section 4, Rule 126 of the Rules of Criminal Procedure, a
search warrant shall issue "in connection with one specific offense." The articles
described must bear a direct relation to the offense for which the warrant is
issued. 34 Thus, this rule requires that the warrant must state that the articles
subject of the search and seizure are used or intended for use in the commission of
a specific offense.
Maxicorp argues that the warrants issued against it are too broad in scope and lack
the specificity required with respect to the objects to be seized. After examining
the wording of the warrants issued, the Court of Appeals ruled in favor of
Maxicorp and reversed the RTC's Order thus:
Under the foregoing language, almost any item in the
petitioner's store can be seized on the ground that it is "used
or intended to be used" in the illegal or unauthorized copying
21
 or reproduction of the private respondents' software and their
manuals. 35
The Court of Appeals based its reversal on its perceived infirmity of
paragraph (e) of the search warrants the RTC issued. The appellate court
found that similarly worded warrants, all of which noticeably employ the
phrase "used or intended to be used," were previously held void by this Court.
36 The disputed text of the search warrants in this case states:
a) Complete or partially complete reproductions or copies of
Microsoft software bearing the Microsoft copyrights
and/or trademarks owned by MICROSOFT
CORPORATION contained in CD-ROMs, diskettes
and hard disks;
b) Complete or partially complete reproductions or copies of
Microsoft instruction manuals and/or literature
bearing the Microsoft copyrights and/or trademarks
owned by MICROSOFT CORPORATION;
c) Sundry items such as labels, boxes, prints, packages,
wrappers, receptacles, advertisements and other
paraphernalia bearing the copyrights and/or
trademarks owned by MICROSOFT
CORPORATION;
d) Sales invoices, delivery receipts, official receipts, ledgers,
journals, purchase orders and all other books of
accounts and documents used in the recording of the
reproduction and/or assembly, distribution and sales,
and other transactions in connection with fake or
counterfeit products bearing the Microsoft
copyrights and/or trademarks owned by
MICROSOFT CORPORATION;
e) Computer hardware, including central processing units
including hard disks, CD-ROM drives, keyboards,
monitor screens and diskettes, photocopying
machines and other equipment or paraphernalia
used or intended to be used in the illegal and
unauthorized copying or reproduction of Microsoft
software and their manuals, or which contain,
display or otherwise exhibit, without the authority of
MICROSOFT CORPORATION, any and all
Microsoft trademarks and copyrights; and
f) Documents relating to any passwords or protocols in order
to access all computer hard drives, data bases and
other information storage devices containing
unauthorized Microsoft software. 37 (Emphasis
supplied)
It is only required that a search warrant be specific as far as the circumstances will
ordinarily allow. 38 The description of the property to be seized need not be
technically accurate or precise. The nature of the description should vary
according to whether the identity of the property or its character is a matter
of concern. 39 Measured against this standard we find that paragraph (e) is not a
general warrant. The articles to be seized were not only sufficiently identified
physically, they were also specifically identified by stating their relation to the
offense charged. Paragraph (e) specifically refers to those articles used or
intended for use in the illegal and unauthorized copying of petitioners'
software. This language meets the test of specificity. 40
The cases cited by the Court of Appeals are inapplicable. In those cases, the
Court found the warrants too broad because of particular circumstances, not
because of the mere use of the phrase "used or intended to be used." In Columbia
Pictures, Inc. v. Flores, the warrants ordering the seizure of "television sets, video
cassette recorders, rewinders and tape cleaners . . ." were found too broad since
the defendant there was a licensed distributor of video tapes. 41 The mere
presence of counterfeit video tapes in the defendant's store does not mean that the
machines were used to produce the counterfeit tapes. The situation in this case is
different. Maxicorp is not a licensed distributor of petitioners. In Bache & Co.
(Phil.), Inc., et al. v. Judge Ruiz, et al., the Court voided the warrants because they
authorized the seizure of records pertaining to "all business transactions" of the
defendant. 42 And in 20th Century Fox Film Corp. v. Court of Appeals, the Court
quashed the warrant because it merely gave a list of articles to be seized,
aggravated by the fact that such appliances are "generally connected with the
legitimate business of renting out betamax tapes." 43
However, we find paragraph (c) of the search warrants lacking in particularity.
Paragraph (c) states:
22
 c) Sundry items such as labels, boxes, prints, packages,
wrappers, receptacles, advertisements and other
paraphernalia bearing the copyrights and/or
trademarks owned by MICROSOFT
CORPORATION;
The scope of this description is all-embracing since it covers property used
for personal or other purposes not related to copyright infringement or unfair
competition. Moreover, the description covers property that Maxicorp
may have bought legitimately from Microsoft or its licensed distributors.
Paragraph (c) simply calls for the seizure of all items bearing the
Microsoft logo, whether legitimately possessed or not. Neither does it limit
the seizure to products used in copyright infringement or unfair competition.
Still, no provision of law exists which requires that a warrant, partially defective
in specifying some items sought to be seized yet particular with respect to the
other items, should be nullified as a whole. A partially defective warrant remains
valid as to the items specifically described in the warrant. 44 A search warrant is
severable, the items not sufficiently described may be cut off without destroying
the whole warrant. 45 The exclusionary rule found in Section 3(2) of Article III of
the Constitution renders inadmissible in any proceeding all evidence obtained
through unreasonable searches and seizure. Thus, all items seized under paragraph
(c) of the search warrants, not falling under paragraphs a, b, d, e or f, should be
returned to Maxicorp.
WHEREFORE, we PARTIALLY GRANT the instant petition. The Decision of
the Court of Appeals dated 23 December 1998 and its Resolution dated 29
November 1999 in CA-G.R. SP No. 44777 are REVERSED and SET ASIDE
except with respect to articles seized under paragraph (c) of Search Warrants Nos.
96-451, 96-452, 96-453 and 96-454. All articles seized under paragraph (c) of the
search warrants, not falling under paragraphs a, b, d, e or f, are ordered returned to
Maxicorp, Inc. immediately.
SO ORDERED. SAHIaD
Davide, Jr., C .J ., Ynares-Santiago and Azcuna, JJ ., concur.
Quisumbing, J ., took no part. Close relation to Counsel.
||| (Microsoft Corp. v. Maxicorp, Inc., G.R. No. 140946, September 13, 2004)
THIRD DIVISION
[G.R. No. 126379. June 26, 1998.]
PEOPLE OF THE PHILIPPINES, represented by
Provincial Prosecutor FAUSTINO T. CHIONG, petitioner,
vs. COURT OF APPEALS, JUDGE CAESAR
CASANOVA, Presiding Judge, Regional Trial Court,
Branch 80, Malolos, Bulacan, AZFAR HUSSAIN,
MOHAMMAD SAGED, MUJAHID KHAN,
MOHAMMAD ASLAM and MEHMOOD ALI,
respondents.
The Solicitor General for petitioner.
Manuel V. Mendoza for private respondents.
SYNOPSIS
A search warrant was served against Azfar Hussain which resulted in his arrest
together with 3 other Pakistanis and in the seizure of their personal belongings,
papers and effects, i.e. dynamite sticks, plastic explosives, fragmentation grenade
and high powered firearms and ammunitions. Charged in court, they pleaded not
guilty and submitted their "Extremely Urgent Motion to Quash Search Warrant
and to Declare Evidence Obtained Inadmissible" on the ground that the place
searched, in which the accused were then residing, was Apartment No. 1, a place
other than and separate from, and in no way connected with, albeit adjacent to,
Abigail's Variety Store, the place stated in the search warrant. The trial court
granted the Motion to Quash which was affirmed by the Court of Appeals on
special civil action for certiorari. The Solicitor General now seeks reversal of the
Court of Appeals' decision alleging that the police officers had satisfactorily
established probable cause before the judge for the issuance of a search warrant.
The Supreme Court held that while their contention may be conceded, the trouble
is that the place described in the search warrant, which is the only place that may
be legitimately searched in virtue thereof, was not that which the police officers
who applied for the search warrant had in mind, with the result that what they
actually subjected to search-and-seizure operations was a place other than that
stated in the search warrant. It does not suffice for a search warrant to be deemed
23
valid, that it be based on probable cause, personally determined by the judge after
examination under oath, or affirmation of the complainant and the witnesses he
may produce; it is essential, too, that it particularly describe the place to be
searched, the manifest intention being that the search be confined strictly to the
place so described. HcISTE
SYLLABUS
1. REMEDIAL LAW; CRIMINAL PROCEDURE; SEARCH WARRANT;
OFFICER EXECUTING WARRANT COULD CONSULT THE RECORDS IN
THE OFFICIAL COURT FILE TO CLEAR UP EXTRINSIC AMBIGUITY.
The Solicitor General argues that this assumption is sanctioned by Burgos, Sr. v.
Chief of Staff, AFP, allegedly to the effect that the executing officer's prior
knowledge as to the place intended in the warrant is relevant, and he may, in case
of any ambiguity in the warrant as to the place to be searched, look to the affidavit
in the official court file. Burgos is inapplicable. That case concerned two (2)
search warrants which, upon perusal, immediately disclosed an obvious
typographical error. The application in said case was for seizure of subversive
material allegedly concealed in two places: one at "No. 19, Road 3, Project 6,
Quezon City," and the other at "784 Units C & D, RMS Building, Quezon
Avenue, Quezon City;" Two (2) warrants issued No. 20-82 [a] and No. 20-82
[b]). Objection was made to the execution of Warrant No. 20-82 (b) at "784 Units
C & D, RMS Building, Quezon Avenue, Quezon City" because both search
warrants apparently indicated the same address (No. 19, Road 3, Project 6,
Quezon City) as the place where the supposedly subversive material was hidden.
This was error, of course but, as this Court there ruled, the error was obviously
typographical, for it was absurd to suppose that the Judge had issued two warrants
for the search of only one place. Adverting to the fact that the application for the
search warrants specified two (2) distinct addresses, and that in fact the address,
"784 Units C & D, RMS Building, Quezon Avenue, Quezon City" appeared in the
opening paragraph of Warrant 20-82 (b), this Court concluded that evidently, this
was the address the judge intended to be searched when he issued the second
warrant (No. 20-82 [b]); and to clear up the ambiguity caused by the "obviously
typographical error," the officer executing the warrant could consult the records in
the official court file.
2. ID.; ID.; ID.; CASE AT BAR; IT IS NEITHER FAIR NOR LICIT FOR
POLICE OFFICERS TO SEARCH A PLACE DIFFERENT FROM THAT
STATED IN THE WARRANT. The case at bar, however, does not deal with
the correction of an "obvious typographical error" involving ambiguous
descriptions of the place to be searched, as in Burgos, but the search of a place
different from that clearly and without ambiguity identified in the search warrant.
In Burgos, the inconsistency calling for clarification was immediately perceptible
on the face of the warrants in question. In the instant case, there is no ambiguity at
all in the warrant. The ambiguity lies outside the instrument, arising from the
absence of a meeting of minds as to the place to be searched between the
applicants for the warrant and the Judge issuing the same; and what was done was
to substitute for the place that the Judge had written down in the warrant, the
premises that the executing officers had in their mind. This should not have been
done. It is neither fair nor licit to allow police officers to search a place different
from that stated in the warrant on the claim that the place actually searched
although not that specified in the warrant is exactly what they had in view
when they applied for the warrant and had demarcated in their supporting
evidence. What is material in determining the validity of a search is the place
stated in the warrant itself, not what the applicants had in their thoughts, or had
represented in the proofs they submitted to the court issuing the warrant. Indeed,
following the officers' theory, in the context of the facts of this case, all four (4)
apartment units at the rear of Abigail's Variety Store would have been fair game
for a search. The place to be searched, as set out in the warrant, cannot be
amplified or modified by the officer's own personal knowledge of the premises, or
the evidence they adduced in support of their application for the warrant. Such a
change is proscribed by the Constitution which requires inter alia the search
warrant to particularly describe the place to be searched as well as the persons or
things to be seized. It would concede to police officers the power of choosing the
place to be searched, even if it not be that delineated in the warrant. It would open
wide the door to abuse of the search process, and grant to officers executing a
search warrant that discretion which the Constitution has precisely removed from
them. The particularization of the description of the place to be searched may
properly be done only by the Judge, and only in the warrant itself; it cannot be left
to the discretion of the police officers conducting the search.
3. ID.; ID.; ID.; IT DOES NOT SUFFICE FOR A SEARCH WARRANT TO BE
DEEMED VALID; IT IS ESSENTIAL TOO THAT IT PARTICULARLY
DESCRIBE THE PLACE TO BE SEARCHED. The Government alleges that
the officers had satisfactorily established probable cause before Judge Bacalla for
the issuance of a search warrant. While this may be conceded, the trouble is, to
repeat, that the place described in the search warrant which, of course, is the
only place that may be legitimately searched in virtue thereof was not that
which the police officers who applied for the warrant had in mind, with the result
that what they actually subjected to search-and-seizure operations was a place
other than that stated in the warrant. In fine, while there was a search warrant
more or less properly issued as regards Abigail's Variety Store, there was none for
Apartment No. 1 the first of the four (4) apartment units at the rear of said
store, and precisely the place in which the private respondents were then residing.
24
It does not suffice, for a search warrant to be deemed valid, that it be based on
probable cause, personally determined by the judge after examination under oath,
or affirmation of the complainant and the witnesses he may produce; it is
essential, too, that it particularly described the place to be searched, the manifest
intention being that the search be confined strictly to the place so described.
4. ID.; ID.; ID.; CONFLICTS OF JURISDICTION; POLICY GUIDELINES.
Where a search warrant is issued by one court and the criminal action based on the
results of the search is afterwards commenced in another court, it is not the rule
that a motion to quash the warrant (or to retrieve things thereunder seized) may be
filed only with the issuing Court. Such a motion may be filed for the first time in
either the issuing Court or that in which the criminal action is pending. However,
the remedy is alternative, not cumulative. The Court first taking cognizance of the
motion does so to the exclusion of the other, and the proceedings thereon are
subject to the Omnibus Motion Rule and the rule against forum-shopping. This is
clearly stated in the third policy guideline which indeed is what properly applies
to the case at bar, to wit: "3. Where no motion to quash the search warrant was
filed in or resolved by the issuing court, the interested party may move in the
court where the criminal case is pending for the suppression as evidence of the
personal property seized under the warrant if the same is offered therein for said
purpose. Since two separate courts with different participations are involved in
this situation, a motion to quash a search warrant and a motion to suppress
evidence are alternative and not cumulative remedies. In order to prevent forum-
shopping, a motion to quash shall consequently be governed by the omnibus
motion rule, provided, however, that objections not available, existent or known
during the proceedings for the quashal of the warrant may be raised in the hearing
of the motion to suppress. The resolution of the court on the motion to suppress
shall likewise be subject to any proper remedy in the appropriate higher court."
5. ID.; ID.; ID.; ID.; CASE AT BAR. In this case, the search warrant was
applied for in, and issued by, Branch 216 of the Regional Trial Court at Quezon
City, and the return was made to said court. On the other hand, the criminal action
in connection with the explosives subject of the warrant was filed in Branch 80 of
the Regional Trial Court of Bulacan. In this situation, a motion to quash the search
warrant, or for the return of the personal property seized (not otherwise
contraband) could have properly been presented in the QC RTC. No such motion
was ever filed. It was only after the criminal action had been commenced in the
Bulacan RTC that the motion to quash and to suppress evidence was submitted to
the latter. The case thus falls within guideline No. 3 abovequoted in accordance
with which the latter court must be deemed to have acted within its competence.
DECISION
NARVASA, C .J p:
In behalf of the People, the Solicitor General has perfected the appeal at bar under
Rule 45 of the Rules of Court from the Decision promulgated on September 11,
1996 of the Fourteenth Division of the Court of Appeals. 1 Said judgment
dismissed the People's petition for certiorari to invalidate (i) the Order of Judge
Caesar A. Casanova of Branch 80 of the Regional Trial Court dated February 9,
1996, 2 as well as (ii) that dated May 28, 1996 denying the People's motion for
reconsideration. 3 Those orders were handed down in Criminal Case No. 43-M-
96, a case of illegal possession of explosives, after the accused had been arraigned
and entered a plea of not guilty to the charge. More particularly, the Order of
February 9, 1996: LexLib
1) quashed a search warrant (No. 1068 [95]) issued by Judge
Marciano I. Bacalla of Branch 216 of the Regional Trial
Court at Quezon City on December 15, 1995, 4
2) declared inadmissible for any purpose the items seized
under the warrant, and
3) directed the turnover of the amount of U.S. $5,750.00 to
the Court within five (5) days "to be released thereafter in
favor of the lawful owner considering that said amount was
not mentioned in the Search Warrant."
The antecedents, "culled from the records" by the Appellate Court, are
hereunder set out.
1. "On December 14, 1995, S/Insp PNP James Brillantes
applied for search warrant before Branch 261, RTC of
Quezon City against Mr. Azfar Hussain, who had allegedly in
his possession firearms and explosives at Abigail Variety
Store, Apt. 1207 Area F, Bagong Buhay Avenue, Sapang
Palay, San Jose del Monte, Bulacan."
2. "The following day, December 15, 1995, Search Warrant
No. 1068 (95) against Mr. Hussain was issued not at Abigail
Variety Store but at Apt. No. 1, immediately adjacent (to)
25
Abigail Variety Store resulting in the arrest of four (4)
Pakistani nationals and in the seizure of their personal
belongings, papers and effects such as wallet, wrist watches,
pair of shoes, jackets, t-shirts, belts, sunglasses and travelling
bags including cash amounting to $3,550.00 and P1,500.00
aside from US$5,175.00 (receipted) which were never
mentioned in the warrant. The sum of $5,175.00 was
however returned to the respondents upon order of the court
on respondents' motion or request. Included allegedly are one
piece of dynamite stick; two pieces of plastic explosives C-4
type and one (1) fragmentation grenade. But without the items
described in the search warrant are: (a) three (3) Ingram
machine pistols; (b) four (4) gmm pistol; (c) blasting caps; (d)
fuse; (e) assorted chemical ingredients for explosives; and (f)
assorted magazine assg and ammunitions."
3. "On December 19, 1995, three days after the warrant was
served, a return was made without mentioning the personal
belongings, papers and effects including cash belonging to the
private respondents. There was no showing that lawful
occupants were made to witness the search."
4. "On January 22, 1996, private respondents upon
arraignment, pleaded not guilty to the offense charged; . . ."
and on the same date, submitted their "Extremely Urgent
Motion (To Quash Search Warrant and to Declare Evidence
Obtained Inadmissible)," dated January 15, 1996;
5. ". . . According to the private respondents in their pleading
(consolidated comment on petition for certiorari . . .): 'On
January 29, 1996, an ocular inspection of the premises
searched was conducted by respondent Judge and the
following facts had been established as contained in the order
dated January 30, 1996 . . . to wit:
"1) That the residence of all the accused is at
Apartment No. 1 which is adjacent to the Abigail's
Variety Store;
2) That there is no such number as '1207' found in
the building as it is correspondingly called only as
'Apartment No. 1, 2, 3 and 4;'
3) That Apartment No. 1 is separate from the
Abigail's Variety Store;
4) That there are no connecting doors that can pass
from Abigail's Variety Store to Apartment No. 1;
5) That Abigail's Variety Store and Apartment No. 1
have its own respective doors used for ingress and
egress.
There being no objection on the said observation of
the Court, let the same be reduced on the records.
SO ORDERED." "
6. "On February 9, 1996, respondent Judge . . . issued its
order duly granting the motion to quash search warrant . . .;" 5
7. "On February 12, 1996, private respondents filed the
concomitant motion to dismiss . . .;"
8. "On February 19, 1996, Asst. Provincial Prosecutor
Rolando Bulan filed a motion for reconsideration and
supplemental motion on the order quashing the search warrant
. . . ;"
9. "On February 27, 1996 and March 12, 1996, private
respondents filed opposition/comment and supplemental
opposition/comment on the motion for reconsideration . . . ;"
10. "On May 28, 1996, respondent Judge . . . issued its order
denying the motion for reconsideration . . .; (and on) June 11,
1996, private respondents filed extremely urgent reiterated
motion to dismiss . . . ."
Chiefly to nullify Judge Casanova's quashal Order of February 9, 1996 above
referred to, the Solicitor General forthwith commenced a special civil action of
certiorari in the Court of Appeals. The action did not prosper, however. As earlier
mentioned, the Fourteenth Division of the Appellate Tribunal promulgated
judgment on September 11, 1996, dismissing the case for lack of merit.
26
The judgment was grounded on the following propositions, to wit: 6
1. The place actually searched was different and distinct from
the place described in the search warrant. This fact was
ascertained by the Trial Judge through an ocular inspection,
the findings wherein, not objected to by the People, were
embodied in an order dated January 30, 1996. The place
searched, in which the accused (herein petitioners) were then
residing was Apartment No. 1. It is a place other than and
separate from, and in no way connected with, albeit adjacent
to, Abigail's Variety Store, the place stated in the search
warrant.
2. The public prosecutor's claim that the sketch submitted
to Judge Bacalla relative to the application for a search
warrant, actually depicted the particular place to be searched
was effectively confuted by Judge Casanova who pointed
out that said "SKETCH was not dated, not signed by the
person who made it and not even mentioned in the Search
Warrant by the Honorable Judge (Bacalla, who) instead . . .
directed them to search Abigail Variety Store Apartment 1207
. . . in the Order . . . dated December 15, 1995" this, too,
being the address given "in the Application for Search
Warrant dated December 14, 1995, requested by P/SR INSP.
Roger James Brillantes, the Team Leader." The untenability
of the claim is made more patent by the People's admission,
during the hearing of its petition for certiorari in the Court of
Appeals, that said sketch was in truth "not attached to the
application for search warrant . . . (but) merely attached to
the motion for reconsideration." 7
Quoted with approval by the Appellate Court were the
following observations of Judge Casanova contained in his
Order of May 28, 1996, viz.: 8
"(d) . . . it is very clear that the place searched is
different from the place mentioned in the Search
Warrant, that is the reason why even P/SR. INSP.
Roger James Brillantes, SPO1 Prisco Bella and
SPO4 Cesar D. Santiago, who were all
EDUCATED, CULTURED and ADEPT to their
tasks of being RAIDERS and who were all
STATIONED IN BULACAN were not even able to
OPEN THEIR MOUTH to say in TAGALOG with
Honorable Judge who issued the Search Warrant the
words 'KATABI', or "KADIKIT" or 'KASUNOD
NG ABIGAIL VARIETY STORE ang papasukin
namin" or if they happen to be an ENGLISH
speaking POLICEMEN, they were not able to open
their mouth even to WHISPER the ENGLISH
WORDS 'RESIDE' or 'ADJACENT' or 'BEHIND' or
'NEXT' to ABIGAIL VARIETY STORE, the place
they are going to raid.' . . ."
3. The search was not accomplished in the presence of the
lawful occupants of the place (herein private respondents) or
any member of the family, said occupants being handcuffed
and immobilized in the living room at the time. The search
was thus done in violation of the law. 9
4. The articles seized were not brought to the court within 48
hours as required by the warrant itself; "(i)n fact the return
was done after 3 days or 77 hours from service, in violation of
Section 11, Rule 126 of the Rules of Court." 10
5. Judge Casanova "correctly took cognizance of the motion
to quash search warrant, pursuant to the doctrinal tenets laid
down in Nolasco vs. Pao (139 SCRA 152) which overhauled
the previous ruling of the Supreme Court in Templo vs. de la
Cruz (60 SCRA 295). It is now the prevailing rule that
whenever a search warrant has been issued by one court or
branch thereof and a criminal case is initiated in another
court or branch thereof as a result of the search of the
warrant, that search warrant is deemed consolidated with the
criminal case for orderly procedure. The criminal case is
more substantial than the search warrant proceedings, and
the presiding Judge in the criminal case has the right to rule
on the search warrant and to exclude evidence unlawfully
obtained (Nolasco & Sans cases)."
27
 6. Grave abuse of discretion cannot be imputed to the
respondent Judge, in light of "Article III, Section 2 of the
Constitution and Rule 126 of the Rules of Court."
7. The proper remedy against the challenged Order is an
appeal, not the special civil action of certiorari.
The Solicitor General now seeks reversal of the foregoing verdict, ascribing to the
Court of Appeals the following errors, to wit:
1) sanctioning "the lower Court's precipitate act of
disregarding the proceedings before the issuing Court and
overturning the latter's determination of probable cause and
particularity of the place to be searched;"
2) sanctioning "the lower Court's conclusion that the sketch
was not attached to the application for warrant despite the
clear evidence . . . to the contrary;"
3) ignoring "the very issues raised in the petition before it;"
4) "holding that the validity of an otherwise valid warrant
could be diminished by the tardiness by which the return is
made;"
5) hastily applying "the general rule that certiorari cannot be
made a substitute for appeal although the circumstances
attending the case at bar clearly fall within the exceptions to
that rule;" and
6) depriving petitioner of "the opportunity to present evidence
to prove the validity of the warrant when the petition before it
was abruptly resolved without informing petitioner thereof."
The whole case actually hinges on the question of whether or not a search warrant
was validly issued as regards the apartment in which private respondents were
then actually residing, or more explicitly, whether or not that particular apartment
had been specifically described in the warrant.
The Government insists that the police officers who applied to the Quezon City
RTC for the search warrant had direct, personal knowledge of the place to be
searched and the things to be seized. It claims that one of said officers, in fact, had
been able to surreptitiously enter the place to be searched prior to the searched:
this being the first of four (4) separate apartments behind the Abigail Variety
Store; and they were also the same police officers who eventually effected the
search and seizure. They thus had personal knowledge of the place to be searched
and had the competence to make a sketch thereof; they knew exactly what objects
should be taken therefrom; and they had presented evidence sufficient to establish
probable cause. That may be so; but unfortunately, the place they had in mind
the first of four (4) separate apartment units (No. 1) at the rear of "Abigail
Variety Store" was not what the Judge who issued the warrant himself had in
mind, and was not what was ultimately described in the search warrant.
The discrepancy appears to have resulted from the officers' own faulty depiction
of the premises to be searched. For in their application and in the affidavit thereto
appended, they wrote down a description of the place to be searched, which is
exactly what the Judge reproduced in the search warrant: " premises located at
Abigail Variety Store Apt 1207, Area-F, Bagong Buhay Avenue, Sapang Palay,
San Jose Del Monte, Bulacan." And the scope of the search was made more
particular and more restrictive by the Judge's admonition in the warrant that
the search be "limited only to the premises herein described."
Now, at the time of the application for a search warrant, there were at least five
(5) distinct places in the area involved: the store known as "Abigail's Variety
Store," and four (4) separate and independent residential apartment units. These
are housed in a single structure and are contiguous to each other although there
are no connecting doors through which a person could pass from the interior of
one to any of the others. Each of the five (5) places is independent of the others,
and may be entered only through its individual front door. Admittedly, the police
officers did not intend a search of all five (5) places, but of only one of the
residential units at the rear of Abigail's Variety Store: that immediately next to the
store (Number 1). LibLex
However, despite having personal and direct knowledge of the physical
configuration of the store and the apartments behind the store, the police officers
failed to make Judge Bacalla understand the need to pinpoint Apartment No. 1 in
the warrant. Even after having received the warrant which directs that the
search be "limited only to the premises herein described," "Abigail Variety Store
Apt 1207" thus literally excluding the apartment units at the rear of the store
they did not ask the Judge to correct said description. They seem to have simply
assumed that their own definite idea of the place to be searched clearly
indicated, according to them, in the sketch they claim to have submitted to Judge
28
Bacalla in support of their application was sufficient particularization of the
general identification of the place in the search warrant.
The Solicitor General argues that this assumption is sanctioned by Burgos, Sr. v.
Chief of Staff , AFP, 11 allegedly to the effect that the executing officer's prior
knowledge as to the place intended in the warrant is relevant, and he may, in case
of any ambiguity in the warrant as to the place to be searched, look to the affidavit
in the official court file.
Burgos is inapplicable. That case concerned two (2) search warrants which, upon
perusal, immediately disclosed an obvious typographical error. The application in
said case was for seizure of subversive material allegedly concealed in two places:
one at "No. 19, Road 3, Project 6, Quezon City," and the other, at "784 Units C &
D, RMS Building, Quezon Avenue, Quezon City;" Two (2) warrants issued
No. 20-82 [a] and No. 20-82 [b]). Objection was made to the execution of Warrant
No. 20-82 (b) at "784 Units C & D, RMS Building, Quezon Avenue, Quezon
City" because both search warrants apparently indicated the same address (No. 19,
Road 3, Project 6, Quezon City) as the place where the supposedly subversive
material was hidden. This was error, of course but, as this Court there ruled, the
error was obviously typographical, for it was absurd to suppose that the Judge had
issued two warrants for the search of only one place. Adverting to the fact that the
application for the search warrants specified two (2) distinct addresses, and that in
fact the address, "784 Units C & D, RMS Building, Quezon Avenue, Quezon
City" appeared in the opening paragraph of Warrant 20-82 (b), this Court
concluded that evidently, this was the address the judge intended to be searched
when he issued the second warrant (No. 20-82 [b]); and to clear up the ambiguity
caused by the "obviously typographical error," the officer executing the warrant
could consult the records in the official court file. 12
The case at bar, however, does not deal with the correction of an "obvious
typographical error" involving ambiguous descriptions of the place to be searched,
as in Burgos, but the search of a place different from that clearly and without
ambiguity identified in the search warrant. In Burgos, the inconsistency calling
for clarification was immediately perceptible on the face of the warrants in
question. In the instant case, there is no ambiguity at all in the warrant. The
ambiguity lies outside the instrument, arising from the absence of a meeting of
minds as to the place to be searched between the applicants for the warrant and the
Judge issuing the same; and what was done was to substitute for the place that the
Judge had written down in the warrant, the premises that the executing officers
had in their mind. This should not have been done. It is neither fair nor licit to
allow police officers to search a place different from that stated in the warrant on
the claim that the place actually searched although not that specified in the
warrant is exactly what they had in view when they applied for the warrant and
had demarcated in their supporting evidence. What is material in determining the
validity of a search is the place stated in the warrant itself, not what the applicants
had in their thoughts, or had represented in the proofs they submitted to the court
issuing the warrant. Indeed, following the officers' theory, in the context of the
facts of this case, all four (4) apartment units at the rear of Abigail's Variety Store
would have been fair game for a search.
The place to be searched, as set out in the warrant, cannot be amplified or
modified by the officers' own personal knowledge of the premises, or the evidence
they adduced in support of their application for the warrant. Such a change is
proscribed by the Constitution which requires inter alia the search warrant to
particularly describe the place to be searched as well as the persons or things to be
seized. It would concede to police officers the power of choosing the place to be
searched, even if it not be that delineated in the warrant. It would open wide the
door to abuse of the search process, and grant to officers executing a search
warrant that discretion which the Constitution has precisely removed from them.
The particularization of the description of the place to be searched may properly
be done only by the Judge, and only in the warrant itself; it cannot be left to the
discretion of the police officers conducting the search.
The Government faults Judge Casanova for having undertaken a review of Judge
Bacalla's finding of probable cause, "as if he were an appellate court." A perusal
of the record however shows that all that Judge Casanova did was merely to point
out inconsistencies between Judge Bacalla's Order of December 15, 1995 and the
warrant itself, as regards the identities of the police officers examined by Judge
Bacalla. 13 In Judge Casanova's view, said inconsistencies, being quite apparent
in the record, put in doubt the sufficiency of the determination of the facts on
which the search warrant was founded.
The Government alleges that the officers had satisfactorily established probable
cause before Judge Bacalla for the issuance of a search warrant. While this may be
conceded, the trouble is, to repeat, that the place described in the search warrant
which, of course, is the only place that may be legitimately searched in virtue
thereof was not that which the police officers who applied for the warrant had
in mind, with the result that what they actually subjected to search-and-seizure
operations was a place other than that stated in the warrant. In fine, while there
was a search warrant more or less properly issued as regards Abigail's Variety
Store, there was none for Apartment No. 1 the first of the four (4) apartment
units at the rear of said store, and precisely the place in which the private
respondents were then residing.
29

It bears stressing that under Section 2, Article III of the Constitution, providing
that: 14
"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
things to be seized."
it does not suffice, for a search warrant to be deemed valid, that it be based on
probable cause, personally determined by the judge after examination under
oath, or affirmation of the complainant. and the witnesses he may produce; it
is essential, too, that it particularly describe the place to be searched, 15 the
manifest intention being that the search be confined strictly to the place so
described.
There was therefore in this case an infringement of the constitutional requirement
that a search warrant particularly describe the place to be searched; and that
infringement necessarily brought into operation the concomitant provision that
"(a)ny evidence obtained in violation . . . (inter alia of the search-and-seizure
provision) shall be inadmissible for any purpose in any proceeding." 16
In light of what has just been discussed, it is needless to discuss such other points
sought to be made by the Office of the Solicitor General as whether or not (1) the
sketch of the building housing the store and the residential apartment units the
place to be searched being plainly marked was in fact attached to the
application for the search warrant; or (2) the search had been conducted in the
presence of the occupants of the place (herein petitioners), among others; or (3)
the validity of the search warrant was diminished by the tardiness by which the
return was made, or (4) the Court of Appeals had improperly refused to receive
"evidence which . . . (the People) had earlier been denied opportunity to present
before the trial court;" or (5) the remedy of the special civil action of certiorari in
the Court of Appeals had been erroneously availed of. The resolution of these
issues would not affect the correctness of the conclusion that the search and
seizure proceedings are void because the place set forth in the search warrant is
different from that which the officers actually searched, or the speciousness of
their argument that anyway, the premises searched were precisely what they had
described to the Judge, and originally and at all times had in mind.
Only one other matter merits treatment. The Solicitor General's Office opines that
where a search warrant has been "issued by a court other than the one trying the
main criminal case," the "proper recourse" of persons wishing to quash the
warrant is to assail it before the issuing court and not before that in which the
criminal case involving the subject of the warrant is afterwards filed. 17 In
support, it cites the second of five (5) "policy guidelines" laid down by this Court
in Malaloan v. Court of Appeals 18 concerning "possible conflicts of jurisdiction
(or, more accurately, in the exercise of jurisdiction) where the criminal case is
pending in one court and the search warrant is issued by another court for the
seizure of personal property intended to be used as evidence in said criminal
case." Said second guideline reads: 19
"2. When the latter court (referring to the court which does
not try the main criminal case) issues the search warrant, a
motion to quash the same may be filed in and shall be
resolved by said court, without prejudice to any proper
recourse to the appropriate higher court by the party
aggrieved by the resolution of the issuing court. All grounds
and objections then available, existent or known shall be
raised in the original or subsequent proceedings for the
quashal of the warrant, otherwise they shall be deemed
waived."
The guidelines have been misconstrued. Where a search warrant is issued by one
court and the criminal action based on the results of the search is afterwards
commenced in another court, it is not the rule that a motion to quash the warrant
(or to retrieve things thereunder seized) may be filed only with the issuing Court.
Such a motion may be filed for the first time in either the issuing Court or that in
which the criminal action is pending. However, the remedy is alternative, not
cumulative. The Court first taking cognizance of the motion does so to the
exclusion of the other, and the proceedings thereon are subject to the Omnibus
Motion Rule and the rule against forum-shopping. This is clearly stated in the
third policy guideline which indeed is what properly applies to the case at bar, to
wit:
"3. Where no motion to quash the search warrant was filed in
or resolved by the issuing court, the interested party may
move in the court where the criminal case is pending for the
suppression as evidence of the personal property seized under
30
 the warrant if the same is offered therein for said purpose.
Since two separate courts with different participations are
involved in this situation, a motion to quash a search warrant
and a motion to suppress evidence are alternative and not
cumulative remedies. In order to prevent forum shopping, a
motion to quash shall consequently be governed by the
omnibus motion rule, provided, however, that objections not
available, existent or known during the proceedings for the
quashal of the warrant may be raised in the hearing of the
motion to suppress. The resolution of the court on the motion
to suppress shall likewise be subject to any proper remedy in
the appropriate higher court."
In this case, the search warrant was applied for in, and issued by, Branch 216 of
the Regional Trial Court at Quezon City, and the return was made to said court.
On the other hand, the criminal action in connection with the explosives subject of
the warrant was filed in Branch 80 of the Regional Trial Court of Bulacan. In this
situation, a motion to quash the search warrant, or for the return of the personal
property seized (not otherwise contraband) could have properly been presented in
the QC RTC. No such motion was ever filed. It was only after the criminal action
had been commenced in the Bulacan RTC that the motion to quash and to
suppress evidence was submitted to the latter. The case thus falls within guideline
No. 3 above quoted in accordance with which the latter court must be deemed to
have acted within its competence.
WHEREFORE, the judgment of the Fourteenth Division of the Court of Appeals
of September 11, 1996 which dismissed the People's petition for certiorari
seeking nullification of the Orders of Branch 80 of the Regional Trial Court dated
February 9, 1996 and May 28, 1996 in Criminal Case No. 43-M-96 is, for the
reasons set out in the foregoing opinion, hereby AFFIRMED without
pronouncement as to costs.
SO ORDERED. LLphil
Romero, Kapunan and Purisima, JJ ., concur.
|THIRD DIVISION
[G.R. No. 149878. July 1, 2003.]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.
TIU WON CHUA a.k.a. "Timothy Tiu" and QUI
YALING y CHUA a.k.a. "Sun Tee Sy y Chua", accused-
appellant.
SYNOPSIS
Appellants were convicted for violation of the Dangerous Drugs Act of 1972, as
amended by RA No. 7659. On appeal, they assailed the legality of the search
warrant and the search and arrest conducted pursuant thereto, and the correctness
of the judgment of conviction.
The Supreme Court held that even if the search warrant used by the police did not
contain the correct name of appellants Tiu Won or the name of Qui Yaling, that
defect did not invalidate it because the place to be searched was described
properly and the test buy operation conducted before obtaining the search warrant
showed that they have personal knowledge of the identity of the persons and the
place to be searched. The search conducted on the car parked away from the
building, however, was illegal because it was not part of the place described to be
searched and it was not incidental to a lawful arrest.
SYLLABUS
1. REMEDIAL LAW; CRIMINAL PROCEDURE; SEARCH WARRANT;
REQUISITES FOR VALIDITY. There are only four requisites for a valid
warrant, i.e.: (1) it must be issued upon "probable cause"; (2) probable cause must
be determined personally by the judge; (3) such judge must examine under oath or
affirmation the complainant and the witnesses he may produce; and (4) the
warrant must particularly describe the place to be searched and the persons or
things to be seized.
2. ID.; ID.; ID.; ID.; MISTAKE IN THE NAME OF THE ACCUSED DOES
NOT INVALIDATE THE SEARCH WARRANT IF THE PLACE TO BE
SEARCHED WAS PROPERLY DESCRIBED; CASE AT BAR. As correctly
argued by the Solicitor General, a mistake in the name of the person to be
31
searched does not invalidate the warrant, especially since in this case, the
authorities had personal knowledge of the drug-related activities of the accused. In
fact, a "John Doe" warrant satisfies the requirements so long as it contains a
descriptio personae such as will enable the officer to identify the accused. We
have also held that a mistake in the identification of the owner of the place does
not invalidate the warrant provided the place to be searched is properly described.
Thus, even if the search warrant used by the police authorities did not contain the
correct name of Tiu Won or the name of Qui Yaling, that defect did not invalidate
it because the place to be searched was described properly. IATSHE
3. ID.; ID.; ID.; SEARCH ON THE CAR THAT WAS NOT PART OF THE
PLACE DESCRIBED IN THE WARRANT TO BE SEARCHED WAS
ILLEGAL; CASE AT BAR. We affirm, however, the illegality of the search
conducted on the car, on the ground that it was not part of the description of the
place to be searched mentioned in the warrant. It is mandatory that for the search
to be valid, it must be directed at the place particularly described in the warrant.
Moreover, the search of the car was not incidental to a lawful arrest. To be valid,
such warrantless search must be limited to that point within the reach or control of
the person arrested, or that which may furnish him with the means of committing
violence or of escaping. In this case, appellants were arrested inside the apartment,
whereas the car was parked a few meters away from the building.
DECISION
PUNO, J p:
This is an appeal from the decision of the Regional Trial Court (RTC) of Manila,
Branch 27, convicting appellants Tiu Won Chua a.k.a. Timothy Tiu (Tiu Won)
and Qui Paling y Chua a.k.a. Sun Tee Sy y Chua (Qui Yaling) for violation of
Section 16, Article III of REPUBLIC ACT NO. 6425, otherwise known as the
Dangerous Drugs Act of 1972, as amended by Republic Act No. 7659.
Appellants were charged with the crime of illegal possession of a regulated drug,
i.e., methamphetamine hydrochloride, otherwise known as "shabu," in an
information which reads:
The undersigned accuses TIU WON CHUA aka "Timothy
Tiu" and QUI YALING Y CHUA aka "Sun Tee Sy Y Chua"
of violation of Section 16, Article III in relation to Section
2(e-2), Article I of REPUBLIC ACT NO. 6425, as amended
by Batas Pambansa Blg. 179 and as further amended by
Republic Act No. 7659, committed as follows:
That on or about the 3rd day of October 1998, in the City of
Manila, Philippines, the said accused without being
authorized by law to possess or use any regulated drug, did
then and there wilfully, unlawfully, knowingly and jointly
have in their possession and under their custody and control
the following, to wit:
A sealed plastic bag containing two three four point
five (234.5) grams of white crystalline substance;
Four (4) separate sealed plastic bags containing six
point two two four three (6.2243) grams of white
crystalline substance;
Sixteen (16) separate sealed plastic bags containing
twenty point three six seven three (20.3673) grams
of white crystalline substance; or a total of 261.0916
grams, and;
An improvised tooter with traces of crystalline
substance
known as "SHABU" containing methamphetamine
hydrochloride, a regulated drug, without the corresponding
license or prescription thereof.
Contrary to law. 1
During arraignment, a plea of not guilty was entered. Appellants, with the
assistance of counsel, and the prosecution stipulated on the following facts:
1. The authenticity of the following documents:
a. The letter of Police Senior Inspector Angelo
Martin of WPD, District Intelligence
Division, United Nations Avenue,
Ermita, Manila, dated October 12,
32
 1998, to the Director of the NBI
requesting the latter to conduct a
laboratory examination of the
specimen mentioned therein;
b. The Certification issued by Forensic
Chemist Loreto Bravo of the NBI,
dated October 13, 1998, to the effect
that the specimen mentioned and
enumerated therein gave positive
results for methamphetamine
hydrochloride, Exhibit "B"; and
c. Dangerous Drug Report No. 98-1200 issued
by Forensic Chemist Bravo, dated
October 13, 1998, to the effect that
the specimen mentioned therein gave
positive results for
methamphetamine hydrochloride;
2. The existence of one plastic bag containing 234.5 grams of
methamphetamine hydrochloride, Exhibit "D"; four
(4) plastic sachets also containing methamphetamine
hydrochloride with a total net weight of 6.2243
grams, Exhibits "E", "E-1", "E-2" and "E-3";
additional 16 plastic sachets containing
methamphetamine hydrochloride with a total net
weight of 20.3673 grams, Exhibits "F", "F-1" to "F-
15", and one improvised tooter with a length of 8
inches more or less and with a red plastic band,
Exhibit "G";
3. Forensic Chemist Loreto Bravo has no personal knowledge
as to the source of the regulated drug in question;
and
4. Tiu Won Chua and Qui Yaling y Chua as stated in the
information are the true and correct names of the two
accused. 2
The witnesses presented by the prosecution were SPO1 Anthony de Leon, PO2
Artemio Santillan and PO3 Albert Amurao. Their testimonies show that the police
authorities, acting on an information that drug-related activities were going on at
the HCL Building, 1025 Masangkay St., Binondo, Manila, surveyed the place on
October 2, 3, 4 and 5, 1998. At about 10 p.m. of October 6, they conducted a test-
buy operation, together with a Chinese-speaking asset. They were able to buy
P2,000.00 worth of substance from appellants, which, upon examination by the
PNP crime laboratory, proved positive for methamphetamine hydrochloride. 3
Nonetheless, they did not immediately arrest the suspects but applied for a warrant
to search Unit 4-B of HCL Building, 1025 Masangkay St., Binondo, Manila.
Their application to search the unit supposedly owned by "Timothy Tiu" was
granted by Judge Ramon Makasiar of Branch 35 of the RTC of Manila on October
9. 4 Armed with the warrant, they proceeded to the place and learned that Tiu
Won was not inside the building. They waited outside but Tiu Won did not come.
After several stakeouts, they were able to implement the warrant on October 12.
Failing to get the cooperation of the barangay officials, they requested the
presence of the building coordinator, Noel Olarte, and his wife, Joji, who acted as
witnesses.
During the enforcement of the warrant, there were three (3) persons inside the
apartment, namely, appellants Tiu Won and Qui Yaling, and a housemaid. The
search was conducted on the sala and in the three (3) bedrooms of Unit 4-B. On
top of a table inside the master's bedroom, one (1) big pack, containing 234.5
grams of shabu, was found inside a black leather man's handbag supposedly
owned by Tiu Won, while sixteen (16) small packs of shabu weighing 20.3673
grams were found inside a lady's handbag allegedly owned by Qui Yaling. Also
contained in the inventory were the following items: an improvised tooter, a
weighing scale, an improvised burner and one rolled tissue paper. 5 The
authorities also searched a Honda Civic car bearing Plate No. WCP 157, parked
along Masangkay Street, registered in the name of the wife of Tiu Won and found
four (4) plastic bags containing 6.2243 grams of shabu, which were likewise
confiscated. A gun in the possession of Tiu Won was also seized and made
subject of a separate criminal case.
The defense presented appellants Tiu Won and Qui Yaling. They denied that
Timothy Tiu and Tiu Won Chua are one and the same person. They presented
papers and documents to prove that appellant is Tiu Won Chua and not Timothy
Tiu, as stated in the search warrant. Tiu Won also claimed that he does not live in
the apartment subject of the search warrant, alleging that he is married to a certain
Emily Tan and is a resident of No. 864 Alvarado St., Binondo, Manila.
Nonetheless, he admitted that his co-appellant, Qui Yaling, is his mistress with
whom he has two children. Qui Yaling admitted being the occupant of the
apartment, but alleged that she only occupied one room, while two other persons,
a certain Lim and a certain Uy, occupied the other rooms. Both appellants denied
that they were engaged in the sale or possession of shabu. They asserted that they
33
are in the jewelry business and that at the time the search and arrest were made,
the third person, whom the prosecution identified as a housemaid, was actually a
certain Chin, who was there to look at some of the pieces of jewelry sold by Tiu
Won. They also denied that a gun was found in the possession of Tiu Won.
Qui Yaling recalled that upon asking who was it knocking at the door of her
apartment on October 12, the police authorities represented that they were electric
bill collectors. She let them in. She was surprised when upon opening the door,
around ten (10) policemen barged inside her unit. She, together with Tiu Won and
Chin, was asked to remain seated in the sofa while the men searched each room.
Tiu Won alleged that after a fruitless search, some of the policemen went out, but
came back a few minutes later with another person. Afterwards, he was made to
sign a piece of paper. Appellants also claimed that the policemen took their bags
which contained money, the pieces of jewelry they were selling and even Qui
Yaling's cell phone. They both denied that shabu was discovered in the apartment
during the search. Appellants were arrested and brought to the police station.
In a decision, dated August 15, 2001, the RTC found proof beyond reasonable
doubt of the guilt of the appellants and sentenced them to suffer the penalty of
reclusion perpetua and a fine of P500,000.00 each. 6
Thus, appellants interpose this appeal raising the following assignment of errors:
EaICAD
I the complainant and the witnesses he may produce; and (4) the warrant must
THE TRIAL COURT ERRED IN DISREGARDING THE
LEGAL DEFECTS OF THE SEARCH WARRANT USED
BY THE POLICE OPERATIVES AGAINST BOTH
ACCUSED.
II
THE TRIAL COURT ERRED IN TAKING INTO
CONSIDERATION EVIDENCES (sic) WHICH SHOULD
HAVE BEEN EXCLUDED AND DISREGARDED WHICH
RESULTED IN THE ERRONEOUS CONVICTION OF
BOTH ACCUSED.
III
THE TRIAL COURT ERRED IN CONVICTING BOTH
ACCUSED DESPITE THE ABSENCE OF PROOF
BEYOND REASONABLE DOUBT.
IV
THE TRIAL COURT ERRED IN DISREGARDING THE
FACT THAT THE CONSTITUTIONAL RIGHTS OF BOTH
ACCUSED WERE SERIOUSLY VIOLATED BY THE
POLICE OPERATIVES. 7
These issues can be trimmed down to two i.e., the legality of the search warrant
and the search and arrest conducted pursuant thereto, and the correctness of the
judgment of conviction imposed by the RTC.
As regards the propriety of the search warrant issued in the name of Timothy Tiu,
which did not include appellant Qui Yaling, appellants contend that because of
this defect, the search conducted and consequently, the arrest, are illegal. Being
fruits of an illegal search, the evidence presented cannot serve as basis for their
conviction.
We beg to disagree. There are only four requisites for a valid warrant, i.e,: (1) it
must be issued upon "probable cause"; (2) probable cause must be determined
personally by the judge; (3) such judge must examine under oath or affirmation
particularly describe the place to be searched and the persons or things to be
seized. 8 As correctly argued by the Solicitor General, a mistake in the name of
the person to be searched does not invalidate the warrant, 9 especially since in this
case, the authorities had personal knowledge of the drug-related activities of the
accused. In fact, a "John Doe" warrant satisfies the requirements so long as it
contains a descriptio personae such as will enable the officer to identify the
accused. 10 We have also held that a mistake in the identification of the owner of
the place does not invalidate the warrant provided the place to be searched is
properly described. 11
Thus, even if the search warrant used by the police authorities did not contain the
correct name of Tiu Won or the name of Qui Yaling, that defect did not invalidate
it because the place to be searched was described properly. Besides, the
authorities conducted surveillance and a test-buy operation before obtaining the
34
search warrant and subsequently implementing it. They can therefore be presumed
to have personal knowledge of the identity of the persons and the place to be
searched although they may not have specifically known the names of the
accused. Armed with the warrant, a valid search of Unit 4-B was conducted.
We affirm, however, the illegality of the search conducted on the car, on the
ground that it was not part of the description of the place to be searched
mentioned in the warrant. It is mandatory that for the search to be valid, it must be
directed at the place particularly described in the warrant. 12 Moreover, the search
of the car was not incidental to a lawful arrest. To be valid, such warrantless
search must be limited to that point within the reach or control of the person
arrested, or that which may furnish him with the means of committing violence or
of escaping. 13 In this case, appellants were arrested inside the apartment,
whereas the car was parked a few meters away from the building.
In a prosecution for illegal possession of a dangerous drug, it must be shown that
(1) appellants were in possession of an item or an object identified to be a
prohibited or regulated drug, (2) such possession is not authorized by law, and (3)
the appellants were freely and consciously aware of being in possession of the
drug. 14 We also note that the crime under consideration is malum prohibitum,
hence, lack of criminal intent or good faith does not exempt appellants from
criminal liability. Mere possession of a regulated drug without legal authority is
punishable under the Dangerous Drugs Act. 15
In the case at bar, the prosecution has sufficiently proved that the packs of shabu
were found inside Unit 4-B, HCL Building, 1025 Masangkay St., Binondo,
Manila. Surveillance was previously conducted. Though no arrest was made after
the successful test-buy operation, this does not destroy the fact that in a
subsequent search, appellants were found in possession of shabu. The testimonies
of the prosecution witnesses are consistent in that after the test-buy operation, they
obtained a search warrant from Judge Makasiar, pursuant to which, they were able
to confiscate, among others, several packs of shabu from a man's handbag and a
ladies' handbag inside a room in the unit subject of the warrant. Furthermore, the
seizure of the regulated drug from Unit 4-B is proven by the "Receipt for Property
Seized" 16 signed by SPO1 de Leon, the seizing officer, Noel, the building
administrator, and Joji Olarte, his wife, who were also present. De Leon attested
to the truth and genuineness of the receipt which was not contradicted by the
defense.
Be that as it may, we cannot sustain the trial court's decision attributing to both
appellants the illegal possession of the same amount of shabu. We note that
nowhere in the information is conspiracy alleged. Neither had it been proven
during the trial. As such, we need to look at the individual amounts possessed by
each appellant.
In his testimony, Tiu Won admitted ownership of the man's handbag where 234.5
grams of shabu were found, viz:
Q: During those ten to 20 minutes, what were those
policemen doing inside that unit?
A: They went inside the rooms and started ransacking the
drawers and everything. As a matter of fact, even
handbags were searched by them.
Q: Whose handbags were searched?
A: My bag, the one I was carrying that day, with jewelry and
checks and others were taken by them. 17 (italics
supplied)
Qui Yaling, in her appellant's brief, denied owning the handbag where 20.3673
grams of shabu were discovered. However, during her testimony, she admitted its
ownership, viz:
Q: Now, the police testified before this court that you has
(sic) a bag and when they searched this bag, it
yielded some sachets of shabu(.) (W)hat can you say
about that?
A: That is an absolute lie, sir. What they saw in my bag were
my cosmetics. 18 (italics supplied)
An admission is an act or declaration of a party as to the existence of a relevant
fact which may be used in evidence against him. 19 These admissions, provided
they are voluntary, can be used against appellants because it is fair to presume that
they correspond with the truth, and it is their fault if they do not. 20
Qui Yaling likewise argues that the lower court erred in attributing ownership of
the handbag to her considering that there was another girl present at the apartment
during the search. She contends that since the prosecution was not able to
establish the ownership of the bag, then such could have also been owned by
Chin.
35
We do not subscribe to this argument. The defense failed to bring Chin to court,
although during the course of the presentation of their evidence, they manifested
their intention to present her testimony. Furthermore, a visitor does not normally
leave her bag lying anywhere, much more in the master's bedroom. Being the
occupant of the apartment, it is more logical to presume that the handbag belongs
to Qui Yaling. The failure of the prosecution to present the bags and proofs that
the bags belong to the appellants is immaterial because the bags, the license of Tiu
Won found inside the man's handbag and the passport of Qui Yaling found inside
the ladies' handbag are not illegal. Having no relation to the use or possession of
shabu, the authorities could not confiscate them for they did not have the authority
to do so since the warrant authorized them to seize only articles in relation to the
illegal possession of shabu. 21 Not within their control, they could not have been
presented in court.
We now come to the penalties of the appellants. R.A. No. 6425, as amended by
R.A. NO. 7659, applies. Thus, since 234.5 grams of shabu were found inside the
man's handbag, deemed to be owned by Tiu Won, he is guilty of violating Section
16, Article III of R.A. No. 6425, while Qui Yaling, whose handbag contained only
20.3673 grams of shabu is guilty of violating Section 20 thereof. Section 16, in
connection with Section 20 (1st paragraph), provides the penalty of reclusion
perpetua to death and a fine ranging from five hundred thousand pesos to ten
million pesos where the amount of shabu involved is 200 grams or more. Where
the amount is less than 200 grams, Section 20 punishes the offender with the
penalty ranging from prision correctional to reclusion perpetua.
IN VIEW WHEREOF, the decision of RTC Br. 27, Manila as to the penalty of
appellant Tiu Won is affirmed, while that of appellant Qui Yaling is modified. Tiu
Won Chua is sentenced to a penalty of reclusion perpetua, and a fine of five
hundred thousand pesos (P500,000.00) in accordance with Section 16 and Section
20 (1st paragraph) of R.A. No. 6425, as amended by R.A. NO. 7659. Qui Yaling y
Chua is sentenced to an indeterminate sentence of prision correccional as
minimum to prision mayor as maximum, there being no mitigating or aggravating
circumstances.
SO ORDERED.
SECOND DIVISION
[G.R. No. 149462. March 31, 2004.]
PEOPLE OF THE PHILIPPINES, appellee, vs.
PRISCILLA DEL NORTE, appellant.
DECISION
PUNO, J p:
Before us is an appeal from the decision of the Regional Trial Court of Caloocan
City, Branch 28, finding appellant Priscilla del Norte guilty of the crime of illegal
possession of drugs, viz:
WHEREFORE, in view of all the foregoing, this Court finds
the accused Pricilla (sic) Del Norte (g)uilty beyond
reasonable doubt of the crime for (sic) Violation of Sec. 8,
Art. II, R.A. 6425, and hereby sentences her to suffer
imprisonment of Reclusion (P)erpetua and a fine of
P1,000,000.00, without subsidiary imprisonment in case of
insolvency.
The marijuana subject matter of this case is confiscated and
forfeited in favor of the Government. The Branch Clerk of
Court is directed to turn-over the subject marijuana to the
Dangerous Drugs Board for proper disposal/destruction.
The City Jail Warden of Caloocan City is hereby ordered to
transfer the accused Priscilla del Norte to the Correccion (sic)
Institution for Women, Mandaluyong City for the service of
her sentence.
SO ORDERED. 1
36
A search warrant was served on a certain Ising Gutierrez Diwa, on August 1,
1997, by SPO1 Angel Lumabas, SPO3 Celso de Leon, Maj. Dionisio Borromeo,
Capt. Jose, SPO3 Malapitan, PO2 Buddy Perez and PO2 Eugene Perida.
As a result of the search, an information against appellant Priscilla del Norte was
filed with the trial court, viz:
INFORMATION
The undersigned Assistant City Prosecutor accuses
PRISCILLA DEL NORTE Y DIWA AND JANE DOE, true
name, real identity and present whereabouts of the last
accused still unknown(,) of the crime of VIOLATION OF
SEC. 8, ART. II, R.A. (No.) 6425, committed as follows:
That on or about the 1st day of August 1997(,) in Caloocan
City, Metro Manila and within the jurisdiction of this
Honorable Court, the above-named accused, conspiring
together and mutually helping with (sic) one another, without
authority of law, did then and there willfully, unlawfully and
feloniously have in their possession, custody and control(,)
MARIJUANA weighing 6748.37 gms. knowing the same to
be a prohibited drug under the provisions of the above-
entitled law.
CONTRARY TO LAW. 2
SPO1 Lumabas testified that on August 1, 1997, their group was tasked to serve a
search warrant 3 against a certain Ising Gutierrez Diwa residing at No. 275 North
Service Road corner Cruzada St., Bagong Barrio, Caloocan City, for alleged
violation of REPUBLIC ACT NO. 6425. They were ordered to "forthwith seize
and take possession of an undetermined quantity of shabu and marijuana leaves."
They coordinated with the barangay officials and proceeded to the house pointed
out to them by the local officials. Upon reaching the house, its door was opened
by a woman. SPO3 De Leon introduced themselves as policemen to the woman
who opened the door, whom they later identified in court as the appellant. 4 They
informed her they had a search warrant, but appellant suddenly closed and locked
the door. It was only after some prodding by the barangay officials that she
reopened the door. The authorities then conducted the search. They found a
bundle of marijuana wrapped in Manila paper under the bed and inside the room.
5 They asked appellant who owned the marijuana. She cried and said she had no
means of livelihood. 6 Appellant was brought to the police headquarters for
further investigation. Both SPO1 Lumabas and SPO3 De Leon identified the
confiscated five (5) bundles of marijuana 7 in court.
Mrs. Grace Eustaquio, a forensic chemist testified that pursuant to a letter request
8 from the Chief of the Caloocan City Police, she conducted an examination on a
specimen consisting of five bundles of suspected marijuana. She found that each
of the bundles was positive for marijuana. This finding was reduced to a
Laboratory Report. 9 The report also contained a finding on the supposed weight
of each bundle in grams, i.e., (A) 973.45, (B) 1,840.31, (C) 472.99, (D) 1,678.8,
and (E) 1,782.82. 10
SPO2 Florencio Ramirez, a police officer in the Intelligence Branch of the
Caloocan Police Station, testified that on August 1, 1997, the appellant was
brought before him by SPO3 De Leon and SPO1 Lumabas. They also submitted
two weighing scales, five bricks of marijuana leaves, and two bunches of
marijuana leaves wrapped in an old newspaper. 11 He apprised appellant of her
constitutional rights before investigating her. After the laboratory test showed that
the evidence yielded was marijuana, he sent a referral slip 12 to Prosecutor Zaldy
Quimpo for inquest. cEaDTA
Appellant assailed the validity of the search warrant against her. She contended
that she lived at 376 Dama de Noche, Barangay Baesa, Caloocan City, 13 and that
on August 1, 1997, she was merely visiting a friend, Marlyn, who lived at 275
North Service Road corner Cruzada St., Bagong Barrio, Caloocan City. She went
to Marlyn's house to borrow money. Marlyn was out and she waited. While
appellant was seated near the door, several people introduced themselves as
policemen, made her sign a white paper and entered the house. She heard them
say "we already got Ising," and was surprised why they suddenly arrested her. She
saw Ising, her sister, at a house two steps away from the house where she was
arrested. Despite her claim that she was not Ising, the policemen brought her to
the police station. 14
Appellant's daughter, Christine also took the witness stand. She testified that she
is one of the eight children of the appellant. Since June 1997, she recalled that
they had lived at 376 Dama de Noche St., Caloocan City, as proved by the address
stated in her school identification card, 15 and a receipt evidencing payment for
the rental of their house at Dama de Noche St. from July 18 to August 18, 1997.
16
The trial court convicted appellant. In this appeal, she raises the lone error that
"the lower court erred in convicting the accused-appellant of the crime charged,
when her guilt has not been proved beyond reasonable doubt." 17
37
Appellant contends that the prosecution failed to establish who owned the house
where the search was conducted, and avers that her mere presence therein did not
automatically make her the owner of the marijuana found therein. She likewise
argues that the search warrant specified the name of Ising Gutierrez as the owner
of the house to be searched, and that since she is not Ising Gutierrez, the lower
court erred in admitting the confiscated drugs as evidence against her. 18
The Solicitor General contends that "the totality of the evidence demonstrates
appellant's guilt beyond reasonable doubt." 19 He cites the case of United States
vs. Gan Lian Po, 20 that when illegal drugs are found in the premises occupied by
a certain person, such person is presumed to be in possession of the prohibited
articles. It then becomes the accused's burden to prove the absence of animus
possidendi. 21
We reverse the trial court's decision. The prosecution failed to establish the guilt
of appellant beyond reasonable doubt.
In a prosecution for illegal possession of dangerous drugs, the following facts
must be proven with moral certainty: (1) that the accused is in possession of the
object identified as a prohibited or regulated drug; (2) that such possession is not
authorized by law; and (3) that the accused freely and consciously possessed the
said drug. 22
We first rule on the validity of the search warrant. Article III, Section 2 of the
1987 Philippine Constitution provides:
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. (emphases supplied)
Appellant argues that the marijuana seized as a result of the search is inadmissible
due to the irregularity of the search warrant which contained the name Ising
Gutierrez Diwa and not Priscilla del Norte. She alleges that Ising is her sister.
During her arrest, she claimed she saw Ising nearby and pointed her to the
authorities, but her efforts were futile the authorities arrested her.
The Constitution requires search warrants to particularly describe not only the
place to be searched, but also the persons to be arrested. We have ruled in rare
instances that mistakes in the name of the person subject of the search warrant do
not invalidate the warrant, provided the place to be searched is properly described.
In People v. Tiu Won Chua, 23 we upheld the validity of the search warrant
despite the mistake in the name of the persons to be searched. In the cited case,
the authorities conducted surveillance and a test-buy operation before obtaining
the search warrant and subsequently implementing it. They had personal
knowledge of the identity of the persons and the place to be searched although
they did not specifically know the names of the accused.
The case at bar is different. We cannot countenance the irregularity of the search
warrant. The authorities did not have personal knowledge of the circumstances
surrounding the search. They did not conduct surveillance before obtaining the
warrant. It was only when they implemented the warrant that they coordinated
with the barangay officials. One of the barangay officials informed SPO3 De Leon
that Ising Gutierrez Diwa and Priscilla Del Norte are one and the same person, but
said barangay official was not presented in court. The authorities based their
knowledge on pure hearsay.
On the merits, we believe the prosecution failed to discharge its burden of proving
appellant's guilt beyond reasonable doubt. The prosecution's witnesses failed to
establish appellant's ownership of the house where the prohibited drugs were
discovered. Except for their bare testimonies, no other proof was presented.
This is in contrast to appellant's proof of her residence. The prosecution did not
contest the punong barangay's certification, 24 Christina's school ID 25 and the
rental receipt, 26 all of which show that appellant and her family live at 376 Dama
de Noche St. There being no substantial contrary evidence offered, we conclude
that appellant does not own the house subject of the search.
The prosecution likewise failed to prove that appellant was in actual possession of
the prohibited articles at the time of her arrest. This is shown by the testimony of
the prosecution's witness:
Fiscal Lomadilla to Witness
Q: What did you find in that house at No. 275?
38
 A: We found marijuana. Q: You made mention about the bricks found?

Q: What is the quantity of the marijuana you found? A: Yes, Sir.

A: Five bunch (sic) or bricks of marijuana and two weighing Q: And you said further that it was inside the room?
scale(s), sir
A: Yes, Sir.
Q: Mr. Lumabas, you mentioned a search warrant issued by
Judge Rivera. What was the result of the execution Q: Now, when you entered the room, was it locked?
of that search warrant?
A: No, Sir.
A: We were able to find marijuana inside the house of
Priscilla del Norte.
Q: As a matter of fact, there was no padlock of that room, is it
correct?
Q: What is the quantity?
A: I did not notice, sir, but it was open.
A: More or less six kilos.
Q: And this alleged marijuana was protruding under the bed?
Q: Was it arranged? How was it placed?
A: No, sir but it was under the bed, "dulong-dulo."
A: It was wrapped inside the plastic tape and it looks (sic) like
in bricks form. 27
Q: Was it also the same plastic bag?

xxx xxx xxx A: No, Sir.

Q: What part of the house did you discover these five bricks
Q: Was it also already wrapped in newspaper?
of marijuana?
A: No, sir, only plastic tape. We were not able to notice that it
A: Inside the room, sir, under the bed.
was marijuana because it is (sic) wrapped in a plastic
tape.
Q: You said you found the accused Priscilla del Norte, where
was she when you found her? Q: How long did you search?

A: Inside the sala, sir. 28

A: Half an hour, sir. 29

In fact, it seems that the authorities had difficulty looking for the drugs which The prosecution's weak evidence likewise shows from the following testimony:
were not in plain view, viz:
Atty. Yap to witness
Atty. Yap to witness

39
 Q: Were you able to search the personal effects? The government's drive against illegal drugs deserves
everybody's support. But it cannot be pursued by ignoble
A: "Yung iba." means which are violative of constitutional rights. It is
precisely when the government's purposes are beneficent that
we should be most on our guard to protect these rights. As
Q: Did you find any I.D. (of the persons) who occupy this
Justice Brandeis warned long ago, "the greatest dangers to
room?
liberty lurk in the insidious encroachment by men of zeal,
well meaning without understanding."
A: No, sir.
IN VIEW WHEREOF, the decision of Branch 28 of the Regional Trial Court of
Q: In other words, your assumption is because Priscilla del Caloocan City is reversed. Appellant is acquitted based on reasonable doubt.
Norte was around so (sic) it follows that she was the SCHcaT
possessor of that illegal drugs?
SO ORDERED.
A: Yes, sir because it is their house.
Quisumbing, Austria-Martinez, Callejo, Sr. and Tinga, JJ., concur.
Q: Was there a picture or photograph taken inside the room of
that particular person?
||| (People v. Del Norte, G.R. No. 149462, March 31, 2004)
A: None, sir.

Q: So a family lived thereat?

A: None, sir.

Q: Was there a separate picture of Ising Gutierrez?

A: I did not see any.

Q: There was no incriminating evidence except this (sic)

drugs taken by Police Officer de Leon and the
barangay tanod, no other incriminating evidence?

A: None, sir. (emphases supplied)

In all criminal cases, it is appellant's constitutional right to be presumed innocent

until the contrary is proved beyond reasonable doubt. 30 In the case at bar, we
hold that the prosecution's evidence treads on shaky ground. We detest drug
addiction in our society. However, we have the duty to protect appellant where the
evidence presented show "insufficient factual nexus" of her participation in the
commission of the offense charged. 31 In People vs. Laxa, 32 we held:

40
EN BANC
[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, petitioner, 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. MAURO AROJADO,
respondents.
SYLLABUS
1. CONSTITUTIONAL LAW; BILL OF RIGHTS; CAN NOT BE
SUPPRESSED BY THE EXIGENCIES OF AN ARMED CONFLICT; GARCIA-
PADILLA v ENRILE (121 SCRA 472) CITED. The treatment of persons
apprehended for the continuing offense of Rebellion suggested in Garcia-Padilla
v. Enrile, 121 SCRA 472 envisions an actual state of war and is justified only
when a recognition of belligerency 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 government must treat the rebels as its citizens, subject to
its municipal law and entitled to all the rights provided thereunder, including and
41
especially those guaranteed by the Constitution. Principal among these in our
country are those 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 internal 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.
2. REMEDIAL LAW; CRIMINAL PROCEDURE; WARRANTLESS ARREST;
PROBABLE 'CAUSE'; MUST BE DETERMINED BY JUDGE ISSUING THE
WARRANT, NOT THE ARRESTING OFFICER WHO SAYS IT IS NOT
NECESSARY. 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. Justice Cruz's 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.
3. ID.; ID.; ID.; REQUISITE THAT OFFENSE "HAS IN FACT JUST BEEN
COMMITTED"; REQUIRES IMMEDIACY AFTER THE COMMISSION OF
THE ACT. 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.
FELICIANO, J., concurring and dissenting opinion:
1. CONSTITUTIONAL LAW; BILL OF RIGHTS; ARREST MADE WITHOUT
A WARRANT ISSUED BY A JUDGE AFTER COMPLYING WITH THE
CONSTITUTIONAL PROCEDURE; PRIMA FACIE UNREASONABLE
SEIZURE OF PERSON. Under the Article III Section 2 of the Constitution,
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. ID.; ID.; ID.; ID.; EXCEPTIONS. Well-recognized exception 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.
3. ID.; ID.; ID.; ID.; ID.; MUST BE STRICTLY CONSTRUED; REASONS
THEREFOR. Section 5(a) and (b) of Rule 113 of the Rules of Court 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 are exceptions 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
42
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.
This rule must apply with special exigency and cogency where we deal, not with
an ordinary statutory provision, but with a constitutional guarantee. Exceptions to
such a guarantee must be read with especial care and sensitivity and kept within
the limits of their language so as to keep vital and significant the general
constitutional norm against warrantless arrests.
4. REMEDIAL LAW; CRIMINAL PROCEDURE; WARRANTLESS ARREST;
CRIME IS COMMITTED OR ATTEMPTED TO BE COMMITTED IN THE
PRESENCE OF THE ARRESTING OFFICER; MUST BE PROPERLY AND
RESPECTIVELY CONSTRUED TO RELATE TO ACTS TAKING PLACE
WITHIN THE OPTICAL OR PERHAPS THE AUDITORY PERCEPTION OF
THE ARRESTING OFFICER. Section 5(a) of Rule 113 of the Rules of Court
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 a 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. 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. 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 sensory 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 perceived criminal act, the necessity which serves as the justification in law of
warrantless arrests under Section 5(a).
5. ID.; ID.; ID.; OFFENSE MUST HAVE JUST BEEN COMMITTED AND
PERSONAL KNOWLEDGE OF ARRESTING OFFICER OF FACTS
INDICATING THAT THE PERSON TO BE ARRESTED HAS COMMITTED
THE OFFENSE; CONSTRUED . Section 5(b) of Rule 113 of the Revised
Rules of Court, 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 that the person to be arrested has
committed the offense. In somewhat different terms, the first requirement imports
that the effects of corpus of the offense which has just been committed are still
visible: e.g. a person sprawled on the ground, dead of a gunshot wound; or a
person staggering around bleeding profusely from stab wounds. The arresting
officer may not have seen the actual shooting or stabbing of the victim, and
therefore 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 by the arresting officer. That requirement would exclude information
conveyed by another person, no matter what his reputation for truth and reliability
might be. 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 on
the ground, he has personal knowledge of facts which rendered 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. ID.; ID.; ID.; THAT THE CRIME "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; CASE AT
BAR. 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 14-days 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
43
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. ID.; ID.; ID.; REQUIREMENT OF PERSONAL KNOWLEDGE OF
ARRESTING OFFICER; MORE EXACTING THAN THE STANDARD
IMPOSED BY THE CONSTITUTION UPON A JUDGE ISSUING A
WARRANT; REASONS THEREFOR. 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, of course, quite beside the point. Even a person secretly
guilty of 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 had just committed such acts when
the arresting officer burst upon the scene.
8. ID.; ID.; ID.; DOCTRINE OF CONTINUING CRIMES; DOES NOT
DISPENSE THE REQUIREMENT THAT OVERT ACTS RECOGNIZABLY
CRIMINAL IN CHARACTER MUST TAKE PLACE IN THE PRESENCE OF
THE ARRESTING OFFICER OR MUST HAVE BEEN COMMITTED WHEN
THE ARRESTING OFFICER ARRIVED. Examination of the utilization in
the majority 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 crime must have been committed in the presence of the arresting officer,
and to loosen up the strict standard established in Section 5(b) that the offense
"has in fact just been committed" at the time the arresting officers arrived. But
relaxing the standards established in Section 5(a) and (b) for lawful warrantless
arrests necessarily means the eroding of the protection afforded by the
constitutional provision against unreasonable seizures of persons. Moreover, the
majority may be seen to be using the "continuing crime" doctrine to justify a
warrantless arrest, not because an offense has been committed in the presence of
the arresting officer or because an offense has in fact just been committed when
the arresting officer arrived, but rather because the person to be arrested in
suspected of having committed a crime in the past and will, it is conclusively
presumed, commit a similar crime in the future. 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 doctrine. More specifically, that
doctrine, in my submission, does not dispense 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 is to be lawful. The "continuing crimes" doctrine in our case
law before rendition of Garcia-Padilla v. Enrile does not sustain warrantless
arrests of person who, at the time of the actual arrests, were performing ordinary
acts of day-to-day life, upon the ground that the person to be arrested is, as it were,
merely resting in between specific lawless and violent acts which, the majority
conclusively presumes, he will commit the moment he gets an opportunity to do
so.
9. ID.; ID.; ID.; ID.; APPLICATION. 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. In respect of the first problem, the
gist of our case law is that where some of the ingredients or elements of an
offense take 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 the 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. Clearly, overt acts of the accused constituting elements of the
crime charged must be shown to have been committed within territorial
jurisdiction of the court where he is charged. 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
44
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. The point worth stressing is that in passing upon the issue relating to the
unity or multiplicity of offenses committed, the overt acts of the accused
constitutive either of the single offense or of the plural offenses, must be shown.
10. ID.; ID.; ID.; ID.; CANNOT BE INVOKED FOR WEAKENING AND
DISSOLVING THE CONSTITUTIONAL GUARANTEE AGAINST
WARRANTLESS ARREST. 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 arrests. 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 consists 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 detention 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 natural
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."
FERNAN, C.J., concurring and dissenting opinion:
1. REMEDIAL LAW; CRIMINAL PROCEDURE; WARRANTLESS ARREST;
NOT LAWFUL WHEN LAW ENFORCEMENT AGENT HAD TIME TO
SECURE A WARRANT. 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." Chief Justice Fernan finds 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 may 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
22, 1988. The second allegedly seditious remark aforequoted was made at around
5:00 o'clock in the same afternoon. 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.
2. ID.; ID.; ID.; MAY NOT BE ALLOWED IF THE ARRESTING OFFICERS
ARE NOT SURE WHAT PARTICULAR PROVISION OF LAW HAD BEEN
VIOLATED BY THE PERSON ARRESTED. Warrantless arrests may not be
allowed if the arresting officers are not sure what particular provision of law had
been violated by the person arrested. True it is that law enforcement agents and
even prosecutors are not all adept at the law. However, erroneous 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.
3. ID.; ID.; ID.; INCITING TO SEDITION, NOT A CONTINUOUS CRIME
FOR WHICH THE OFFENDER MAY BE ARRESTED WITHOUT A
WARRANT. 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
45
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.
4. ID.; ID.; ID.; IN CASE OF VIOLATION OF ANTI-SUBVERSION LAW;
VIOLATORS MUST BE KNOWN MEMBER THEREOF. 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 a 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 he has not committed overt acts of
overthrowing the government such as the bombing of government offices or the
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 coercion. Certainly, one may not be in
such a roll without undergoing the conscious act of enlistment.
5. ID.; ID.; ID.; REQUIRES THAT AS OFFENSE HAS IN FACT JUST BEEN
COMMITTED. It bears repeating that warrantless arrest 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."
According to the late Chief Justice Teehankee, 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 the 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)." (Dissenting opinion in Ilagan vs. Enrile, G.R. No. 70748, October 21,
1985, 139 SCRA 349, 408).
6. ID.; ID.; ID.; GUIDELINES IN EFFECTING THEREOF. Chief Justice
deems it apt herein to recall other Court rulings providing 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 of such
subversion and held that any rule on arrests without warrants must be strictly
construed. We categorically stated therein that warrantless arrests should "clearly
fall within the situations when securing a warrant would be absurd or is
manifestly unnecessary as 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 a 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."
7. ID.; ID.; ID.; PROCEDURE. 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 inform 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 arrested 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 arrested, by any person on his behalf, or appointed
by the court upon petition on his behalf, or appointed by 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 in evidence." 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.
GUTIERREZ, JR., J., concurring and dissenting opinion:
1. REMEDIAL LAW; CRIMINAL PROCEDURE; WARRANTLESS ARREST;
GROUNDS PROVIDED IN SEC. 5(a) and (b) OF RULE 113 OF THE RULES
OF COURT; MUST BE STRICTLY APPLIED. Justice Gutierrez vote for the
strict application of Section 5 (a) and (b) of Rule 113 on arrests without warrant.
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.
2. ID.; ID.; ID.; VALID, IF A PERSON WAS ARRESTED AFTER HAVING
BEEN APPREHENDED WHILE IN POSSESSION OF ILLEGAL FIREARMS
OR AMMUNITION. 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
46
arrested after having been apprehended while in possession of illegal firearms and
ammunitions. They were actually committing a crime when arrested.
3. ID.; ID.; ID.; DOCTRINE OF CONTINUING OFFENSE; NOT A
SUFFICIENT GROUND TO EFFECT THEREOF; REASONS THEREFOR.
Insofar as G.R. No. 81567 is concerned, Justice Gutierrez joins the other
dissenting Justices in their observations regarding "continuing offenses." 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, He fails 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.
4. ID.; ID.; ID.; SUBSEQUENT CONVICTION OF PERSON ARRESTED;
DOES NOT VALIDATE AN ILLEGAL ARREST. 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. He 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
validate the warrantless arrest. 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.
5. CRIMINAL LAW; INCITING TO SEDITION; NOT PRESENT WHEN A
PERSON URGED JEEPNEY AND BUS DRIVERS TO JOIN A STRIKE OF
TRANSPORT WORKERS; REASONS THEREFOR. Justice Gutierrez votes
to grant the motion for reconsideration in G.R. No. 85727 where Deogracias
Espiritu was arrested while urging jeepney and bus drivers to join a strike of
transport workers on the ground that he was inciting to sedition. This impresses
him 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. He doubts 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
and 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 others, (1) what kinds of speeches or writings
fall under the term "inciting"; (2) the meaning of rising publicly and tumultuously;
(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.
REGALADO, J., dissenting opinion:
1. REMEDIAL LAW; CRIMINAL PROCEDURE; WARRANTLESS ARREST;
REQUIREMENT 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; PURPOSE. The requirement in Section 5(b) of Rule 113 of the
Rules of Court 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.
2. ID.; ID.; ID.; REQUIREMENT THAT THE CRIME HAVE BEEN
COMMITTED; CONTEMPLATES THE RECENCY OF TIME WHEN THE
CRIME WAS IN FACT COMMITTED. 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 person making the arrest learned or was informed of such
commission. Otherwise, at the risk of resorting to reductio ad absurdum, such
47
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.
3. ID.; ID.; ID.; INTERVAL OF TIME BETWEEN THE COMMISSION OF
THE CRIME AND THE ARREST; CONSTRUED. 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.
SARMIENTO, J., dissenting opinion:
1. REMEDIAL LAW; CRIMINAL PROCEDURE; WARRANTLESS ARREST;
TO JUSTIFY THEREOF, THE OVERT ACT OF SUBVERSION SHOULD BE
VISIBLE TO THE EYES OF THE POLICE OFFICER MAKING THE
ARREST. Subversion, as an offense punished by EXECUTIVE ORDER NO.
167, as amended by EXECUTIVE ORDER NO. 276, in relation to Republic Act
No. 1700, is made up of "overt acts." In People v. Ferrer, Nos. L-32613-14,
December 27, 1972, 48 SCRA 382, 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, the 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. Justice Sarmiento respectfully submits that for purposes of arrest
without a warrant, the 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 than mere
membership.
2. ID.; ID.; ID.; PERSONAL KNOWLEDGE MUST BE COUPLED WITH
GOOD FAITH. Justice Sarmiento finds strained the 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 . . ." He submits 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"; He respectfully submits that
to give to "personal knowledge" the same meaning as "reasonable ground" is to
make the amendment a useless exercise.
3. ID.; ID.; ID.; REQUIREMENT OF PERSONAL KNOWLEDGE; NOT
SATISFIED WHEN ACQUIRED SOLELY FROM CONFIDENTIAL
INFORMATION. A mere "confidential information" that a "sparrow man" had
been wounded and was recuperating in the hospital, and that person was Rolando
Dural. Clearly, what we have is second-hand, indeed, hearsay, information, and
needless to say, not personal knowledge. He would like to point out that in the
case of People v. Burgos, G.R. No. 68955, September 4, 1986, 144 SCRA 1, 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] . . . He does not see
how they can act differently here. 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"; 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. Here it is worse,
because we do not even know who that informant was.
4. ID.; ID.; ID.; NOT JUSTIFIED WHEN THE ACCUSED WAS NEITHER ON
THE VERGE OF FLIGHT OR ESCAPE NOR THERE WAS AN IMPEDIMENT
48
FOR THE PUBLIC OFFICER TO GO THROUGH THE JUDICIAL
PROCESSES. Justice Sarmiento is 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 v. 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. In the
case of Espiritu, he 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. He does
not think this is the contemplation of the Rules of Court. As in the case of Burgos
in People v. Burgos, Espiritu was neither "on the verge of flight or escape" 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 v. Aminnudin, 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.
5. ID.; ID.; ID.; NOT JUSTIFIED BY SUBSEQUENT ADMISSION OF THE
ACCUSED THAT THEY WERE MEMBERS OF THE NATIONAL PEOPLE'S
ARMY; CASE AT BAR. Justice Sarmiento does not likewise see how the
petitioners Amelia Roque, Wilfredo Buenaobra, Domingo Aonuevo, Ramon
Casiple, 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 tip the military had no personal knowledge (as he
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), immediate arrests 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. Justice Sarmiento thinks 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
petitioners' arrests. More important, that Roque, et al. "ere 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.
Justice Sarmiento certainly hopes not, after the majority referred to Rolando Dural
as a "sparrow man" and having Amelia Roque, et al. admit to being "NPA's."
6. ID.; ID.; ID.; GUILT OF THE ACCUSED; IMMATERIAL IN THE
DETERMINATION OF THE LEGALITY THEREOF. It is to gloss over at
any rate, the nature of arrest as a restraint 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").
7. ID.; ID.; ID.; ISSUED AGAINST PERSON INCITING TO SEDITION; NOT
PROPER IN CASE AT BAR. Justice Sarmiento 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 ang welga
natin . . . hanggang sa magkagula na. Espiritu however was arrested on
November 23, 1988, a day later and in no way is "inciting to sedition" a
continuing offense. 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," 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 He does 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. Secondly, it is the very question before the Court whether 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 He is wondering why we can not
answer it. What the majority has not answered, as He indicated is that inciting to
sedition is in no way a continuing offense, and as He said, the majority is not
apparently convinced that it is, either. Of course, the majority would any way
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."
8. ID.; ID.; ID.; REQUIREMENT THAT OFFENSE HAS BEEN JUST
COMMITTED AND PERSONAL KNOWLEDGE; NOT SATISFIED WHEN
THE ARREST WAS MADE FOURTEEN DAYS AFTER THE CRIME WAS IN
FACT COMMITTED. With all due respect, Justice Sarmiento does not think
49
that the majority is aware of the serious implications of its pronouncement on
individual rights (and statutory construction in general), and He feels He is
appropriately concerned because as a member of the Court, He is co-responsible
for the acts of His colleagues and He is afraid that He 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. 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 today it is fourteen days, tomorrow, one year, and sooner, a
decade. He submits 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 and none of us can possible dispute it.
9. ID.; ID.; ID.; NEITHER COMMUNIST THREAT NOR NATIONAL
SECURITY ARE VALID GROUNDS THEREOF. Justice Sarmiento
respectfully submits that the cases Garcia v. Padilla, G.R. No 61388, April 20,
1983, 121 SCRA 472 and Ilagan v. Enrile, G.R. No. 70748, October 21, 1985, 139
SCRA 349, have seen better days. Justice Sarmiento does 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. First
and foremost, and as the majority has conceded, we do not know if we are in fact
dealing here 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 He is 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.
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 and begins with the
statement that the decision did not rule as many misunderstood it to do that
mere suspicion that one is a Communist Party or New People's Army member is a
valid ground for his arrest without warrant. Moreover, the decision merely applied
long existing laws to the factual situations obtaining in the several petitions.
Among these laws are those outlawing the Communist Party of the Philippines
(CPP) and similar organizations and penalizing membership therein (to be dealt
with shortly). It is elementary, in this connection, that 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;
50
 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. 4 Therefore, 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 forthwith released.
In the petitions at bar, to ascertain whether the detention of petitioners was
illegal or not, the Court before rendering the 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, it
would follow that the detention resulting from such arrests is 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 anyone without a warrant of arrest, except in those
cases expressly authorized by law. 6 The law expressly allowing arrests without
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 be 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 arrested has committed it; and
. . ." (emphasis supplied).
The Court's decision of 9 July 1990 rules that the arrest of Rolando Dural
(G.R. No. 81567) without warrant is justified as it can be said that, within the
contemplation of Section 5(a), 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 is
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)
51
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 arrest 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 Barrio, 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 who 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 days 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 from custody of the
arresting officers). On 31 August 1988, he was convicted of the crime charged and
52
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 with
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 days 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 for
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 Constantino, 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 Constantino 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 Constantino 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 agent 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 Constantino 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 of
the 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 Constantino 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 Constantino 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 Constantino
safehouse; second: found in the safehouse was a person named Renato
Constantino, 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
53
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 afore-named persons (Dural, Buenaobra, Roque, Anonuevo,
Casiple and Ocaya), no prudent man 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 prose
cute 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
Valencia 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 magkagulo
na." 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 falls under Section 5(b) of Rule 113, since it was only
54
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 with the Regional Trial Court of Makati, Metro
Manila. The case is docketed 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,
returnable to the Presiding Judge of the Regional Trial Court
of Bian, 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 Curt of Makati, Metro Manila which
had 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 the 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 constitutional
requisites for the 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 of Amelia 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 in the light of prevailing conditions where
national security and stability are still directly challenged perhaps with greater
vigor from the communist rebels. What is important is that every arrest without
warrant be tested as to its legality via habeas corpus proceedings. 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, 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.
55
 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 SECOND DIVISION
without warrant of the suspect. The Court predicated the validity of the questioned
arrests without warrant in these petitions, not on mere unsubstantiated suspicion, [G.R. No. 170233. February 22, 2007.]
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 THE PEOPLE OF THE PHILIPPINES, appellee, vs.
show, the actual facts and circumstances supporting the arrests. More than the JESUS NUEVAS y GARCIA, REYNALDO DIN y
allure of popularity or palatability to some groups, what is important is that the GONZAGA, and FERNANDO INOCENCIO y
Court be right. ABADEOS, appellants.

ACCORDINGLY, the motions for reconsideration of the decision dated 9

July 1990, are DENIED. This denial is FINAL.
DECISION
SO ORDERED.

Narvasa, Melencio-Herrera, Paras, Padilla, Bidin, Grio-Aquino, Medialdea and TINGA, J p:

Davide, Jr., JJ., concur.
Jesus Nuevas y Garcia (Nuevas) was charged 1 before the Regional Trial Court
||| (In re Umil v. Ramos, G.R. No. 81567, 84581-82, 84583-84, 83162, 85727, (RTC) of Olongapo City, Branch 75, with illegal possession of marijuana in
86332, October 03, 1991) violation of Section 8, Article II of REPUBLIC ACT NO. 6425 2 as amended.

Reynaldo Din y Gonzaga (Din) and Fernando Inocencio y Abadeos (Inocencio)

were likewise charged 3 with the same crime, before the same court.

Upon arraignment, Nuevas, Din and Inocencio pleaded not guilty to the charges. 4
As the evidence in the cases was common and the prosecution would utilize the
same witnesses, the cases were consolidated. After a joint trial on the merits, the
RTC rendered a Decision 5 dated 4 April 2002, disposing as follows:

WHEREFORE, finding all accused in the above-entitled

cases guilty beyond reasonable doubt, this Court hereby
sentences them to suffer the penalty of Reclusion Perpetua
and each to pay [a] fine of P500,000.00 without subsidiary
imprisonment in case of insolvency and to pay the costs.

The bricks of marijuana are hereby confiscated and disposed

in accordance with existing regulations.

56
 SO ORDERED. 6
To put in appropriate context the operative facts on which adjudication of this
case hinges, there is need to recall the factual assertions of the witnesses for both
the prosecution and the defense.
PO3 Teofilo B. Fami (Fami) testified that in the morning of 27 September 1997,
he and SPO3 Cesar B. Cabling (Cabling) conducted a stationary surveillance and
monitoring of illegal drug trafficking along Perimeter Street, Barangay Pag-asa,
Olongapo City. They had received information that a certain male person, more or
less 5'4" 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 dried leaves. While stationed thereat, they saw a male person who fit
the description, carrying a plastic bag, later identified as Nuevas, alight from a
motor vehicle. They accosted Nuevas and informed him that they are police
officers. Fami asked Nuevas where he was going. Nuevas answered arrogantly but
afterwards, calmed down. Nuevas and Fami conversed in the Waray dialect.
Nuevas informed him that there were other stuff in the possession of a certain
Vangie, an associate, and two other male persons. Later on, Nuevas voluntarily
pointed to the police officers a plastic bag which, when opened, contained
marijuana dried leaves and bricks wrapped in a blue cloth. Shortly, in his bid to
escape charges, Nuevas disclosed where the two (2) other male persons would
make the delivery of marijuana weighing more or less five (5) kilos. 7
Fami and Cabling, together with Nuevas, then proceeded to Purok 12, Old
Cabalan, Olongapo City, which according to Nuevas was where his two (2)
companions, Din and Inocencio, could be located. From there, they saw and
approached two (2) persons along the National Highway, introducing themselves
as police officers. Din was carrying a light blue plastic bag. When asked, Din
disclosed that the bag belonged to Nuevas. Fami then took the bag and upon
inspection found inside it "marijuana packed in newspaper and wrapped therein."
8 After confiscating the items, Fami and Cabling brought Nuevas, Din and
Inocencio to the police office at Purok III for proper documentation. 9 Fami
further testified that a receipt for the property seized was issued by Cabling and
that a field test was duly conducted on the confiscated items. All three accused
were likewise physically examined on the basis of which corresponding medical
certificates were issued. The corresponding booking sheets and arrest report were
also accomplished. Fami stated that he and Cabling executed a joint affidavit in
connection with the arrest of all the accused and the confiscation of the items. 10
On cross-examination, Fami revealed that when the receipt of evidence seized was
prepared, all three (3) accused were not represented by counsel. He likewise
disclosed that he was the one who escorted all the accused during their physical
examination. He also escorted all three to the Fiscal's office where the latter were
informed of the charges against them. 11
Cabling corroborated Fami's testimony. He, however, testified that after he and
Fami had introduced themselves as police officers, Din and Inocencio voluntarily
handed to Fami the marijuana dried leaves. 12
On cross-examination, Cabling testified that the arrest of Nuevas was the result of
a tip from Fami's informant, conceding though that the name of Nuevas was not
included in the list of persons under surveillance. Fami then relayed the tip to
Cabling. 13 Cabling restated that Nuevas had voluntarily submitted the plastic bag
he was holding and that after Nuevas had been informed of the violation of law
attributed to him, he admitted his willingness to cooperate and point to his other
cohorts. 14 When Fami and Cabling proceeded to the identified location of
Nuevas's cohorts, they chanced upon Din and Inocencio along the road. Din was
holding a bag while Inocencio was looking into its contents. 15 Cabling averred
that Din voluntarily handed the plastic bag he was holding to the police officers.
16
For his defense, Nuevas testified that in the morning of 27 September 1997, he
was walking along Perimeter Street, on his way home from the Barangay Hall,
when Fami called him. Nuevas approached Fami, who was then in front of his
house, and asked why Fami had called him. Fami poked his gun at Nuevas and
asked him to go inside the room where Fami handcuffed Nuevas's hands, got
Nuevas's wallet, took out P1,500.00 and put it in his (Fami's) wallet. Fami then
confronted Nuevas with shabu use but the latter denied the charge. Before leaving
the house with Nuevas, Fami brought out a plastic bag and told Nuevas to carry it.
Subsequently, they boarded a red owner type jeep and proceeded to Station B
where Nuevas was put in jail. Nuevas further stated that he did not know Din or
Inocencio. 17
Din, on the other hand, stated that at about 10 o'clock in the morning of 27
September 1997, while his 'compare' Inocencio was visiting, two (2) men entered
his house looking for a woman. The two (2) introduced themselves as police
officers. Then, Din and Inocencio were immediately handcuffed. They were not
informed of the reason for their arrest and were told that the reason will be
explained to them in court. Next, they were brought to the Cabalan precinct where
the investigator asked for their names, and subsequently to Station B where they
were ordered to stand up and be photographed with Nuevas, who Din first met in
jail. Inside the room where they had their fingerprints taken, he saw marijuana
placed on top of the table. 18
57
Inocencio testified that he went to his 'compadre' Din's house in the morning of 27
September 1997 to sell his fighting cocks as he needed money to redeem his
driver's license. While there, he and Din were arrested by two persons, one of
whom pointed a gun at them while the other searched the house for a lady named
Vangie. Afterwards, he and Din were brought to the Cabalan Police Precinct and
then to Station B where he first came to know Nuevas. He denied that a plastic
bag containing marijuana was recovered from them and claimed that he only saw
such evidence on the day he gave his testimony. He also stated that when a
photograph was taken of the three of them, he and Din were ordered to point to a
"wrapped thing." When the photograph was taken, they were not assisted by
counsel. He also does not recall having signed a receipt of property seized.
Afterwards, they were brought to a detention cell. And when they asked the police
what they did wrong, the police replied that they will just explain it in court. 19
All three were found guilty as charged and the judgment of conviction was
elevated to the Court for automatic review. However, on 14 July 2003, Nuevas
filed a manifestation and motion to withdraw appeal. 20 The Court granted
Nuevas's withdrawal of appeal and considered the case closed and terminated as
to him, in a Resolution 21 dated 25 August 2003.
In a Resolution 22 dated 22 September 2004 of the Court in G.R. Nos. 153641-42,
23 the cases were transferred to the Court of Appeals pursuant to the Court's
ruling in People v. Efren Mateo. 24
Before the Court of Appeals, Din and Inocencio (appellants) argued that the
trial court erred: (1) in finding them guilty of the crime charged on the basis
of the testimonies of the arresting officers; and (2) in not finding that their
constitutional rights have been violated. 25
The Court of Appeals in a Decision 26 dated 27 May 2005, in CA-G.R. CR No.
00341, affirmed the decision of the trial court. The dispositive portion of the
decision reads:
WHEREFORE, all the foregoing considered, the instant
appeal is DENIED. The Decision of the Regional Trial Court
of Olongapo City, Branch 75, in Criminal Case No. 459-97, is
AFFIRMED.
SO ORDERED. 27
The Court of Appeals restated the rule that when the issue involves the credibility
of a witness, the trial court's assessment is entitled to great weight, even finality,
unless it is shown that it was tainted with arbitrariness or there was an oversight of
some fact or circumstance of weight or influence. The appellate court found Fami
and Cabling's version of how appellants were apprehended to be categorical and
clear. Din, at the time of his apprehension, was seen holding a plastic bag
containing marijuana leaves. On the other hand, Inocencio's possession of the
marijuana leaves was established by the fact that he was seen in the act of looking
into the plastic bag carried by Din. 28
With respect to appellants' claim that their constitutional rights have been
violated, the appellate court stated that the search in the instant case is exempted
from the requirement of a judicial warrant as appellants themselves waived their
right against unreasonable searches and seizures. According to the appellate court,
both Cabling and Fami testified that Din voluntarily surrendered the bag.
Appellants never presented evidence to rebut the same. Thus, in the instant case,
the exclusionary rule does not apply. 29
Din and Inocencio are now before the Court submitting for resolution the same
matters argued before the Court of Appeals. Through their Manifestation (In Lieu
of Supplementary Brief) 30 dated 22 March 2006, appellants stated that all the
arguments necessary to support their acquittal have already been discussed in the
brief they had submitted before the appellate court; thus, the filing of a
supplemental brief would be a mere reiteration of the arguments discussed in said
brief. 31 The Office of the Solicitor General manifested that it is no longer filing a
supplemental brief. 32
The conviction or acquittal of appellants rests on the validity of the
warrantless searches and seizure made by the police officers and the
admissibility of the evidence obtained by virtue thereof. TAScID
In holding that the warrantless searches and seizure are valid, the trial court ruled
as follows:
While the confiscation of the bricks of marijuana from the
accused Jesus Nuevas was without a search warrant, it was
not bereft of a probable cause. The police team received
informations [sic] from an asset that on that day, a male
person whom he sufficiently described will deliver marijuana
at the vicinity of Perimeter and Bonifacio S[t]., Pag-asa,
58
 Olongapo City, a known drop point of illegal drugs. They
went to the said area upon that information. Their waiting was
fruitful because not long afterwards they saw the accused
Jesus Nuevas alighting from a tricycle carrying a bag and
after confronting him, he voluntarily gave the bag containing
bricks of dried marijuana leaves. With respect to the
confiscation of 2 1/2 kilos of marijuana and the apprehension
of accused Reynaldo Din and Fernando Inocencio, it was a
result of a continued operation by the team which this time
was led by accused Nuevas to get some concession from the
team for his own earlier apprehension. As the apprehension of
Nuevas was upon a probable cause, in the same vein was the
apprehension of Reynaldo Din and Fernando Inocencio and
the recovery from them [of] 2 1/2 kilos of dried marijuana
leaves. The propriety of this conclusion is necessity [sic]
because of the impossibility of getting first a warrant in so
short a time with such cumbersome requirements before one
can be issued. Before getting a warrant, the culprits shall have
already gone into hiding. These situations are not distant to
the case of People v[.] Jean Balingan (G.R. No. 105834, 13
Feb. 1995) where we learned that expediency and practicality
are some of the justification[s] in the warrantless arrest. 33
[Emphasis supplied]
Appellants maintain that there was no basis for their questioning and the
subsequent inspection of the plastic bags of Nuevas and Din, as they were not
doing anything illegal at the time. 34
Our Constitution states that a search and seizure must be carried through or with a
judicial warrant; otherwise, such search and seizure becomes "unreasonable" and
any evidence obtained therefrom is inadmissible for any purpose in any
proceeding. 35 The constitutional proscription, however, is not absolute but
admits of exceptions, namely:
1. Warrantless search incidental to a lawful arrest. (Sec. 12,
Rule 126 of the Rules of Court and prevailing jurisprudence);
2. Search of evidence in "plain view." The elements are: (a) a
prior valid intrusion based on the valid warrantless arrest in
which the police are legally present in the pursuit of their
official duties; (b) the evidence was inadvertently discovered
by the police who have the right to be where they are; (c) the
evidence must be immediately apparent; (d) "plain view"
justified mere seizure of evidence without further search;
3. Search of a moving vehicle. Highly regulated by the
government, the vehicle's inherent mobility reduces
expectation of privacy especially when its transit in public
thoroughfares furnishes a highly reasonable suspicion
amounting to probable cause that the occupant committed a
criminal activity; HSATIC
4. Consented warrantless search;
5. Customs search;
6. Stop and Frisk; and
7. Exigent and emergency circumstances.
In the instances where a warrant is not necessary to effect a valid search or
seizure, or when the latter cannot be performed except without a warrant,
what constitutes a reasonable or unreasonable 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.
The courts below anchor appellants' conviction on the ground that the searches
and seizure conducted in the instant case based on a tip from an informant fall
under one of the exceptions as Nuevas, Din and Inocencio all allegedly voluntarily
surrendered the plastic bags containing marijuana to the police officers.
We differ.
First, the Court holds that the searches and seizures conducted do not fall
under the first exception, warrantless searches incidental to lawful arrests.
A search incidental to a lawful arrest is sanctioned by the Rules of Court. 39
Recent jurisprudence holds that the arrest must precede the search; the process
cannot be reversed as in this case where the search preceded the arrest.
Nevertheless, a search substantially contemporaneous with an arrest can precede
59
the arrest if the police have probable cause to make the arrest at the outset of the
search. 40
In this case, Nuevas, Din and Inocencio were not committing a crime in the
presence of the police officers. Moreover, police officers Fami and Cabling did
not have personal knowledge of the facts indicating that the persons to be arrested
had committed an offense. The searches conducted on the plastic bag then cannot
be said to be merely incidental to a lawful arrest. Reliable information alone is not
sufficient to justify a warrantless arrest under Section 5 (a), Rule 113. 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."
Secondly, neither could the searches be justified under the plain view doctrine.
An object is in plain view if it is plainly exposed to sight. 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. 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. 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.
Records show that the dried marijuana leaves were inside the plastic bags that
Nuevas and Din were carrying and were not readily apparent or transparent to the
police officers. In Nuevas's case, the dried marijuana leaves found inside the
plastic bag were wrapped inside a blue cloth. 43 In Din's case, the marijuana
found upon inspection of the plastic bag was "packed in newspaper and wrapped
therein." 44 It cannot be therefore said the items were in plain view which could
have justified mere seizure of the articles without further search. 45
On the other hand, the Court finds that the search conducted in Nuevas's
case was made with his consent. In Din's case, there was none.
Indeed, the constitutional immunity against unreasonable searches and
seizures is a personal right which may be waived. However, it must be seen that
the consent to the search was voluntary in order to validate an otherwise
illegal detention and search, i.e., the consent was unequivocal, specific, and
intelligently given, uncontaminated by any duress or coercion. The consent to
a search is not to be lightly inferred, but must be shown by clear and convincing
evidence. The question whether a consent to a search was in fact voluntary is a
question of fact to be determined from the totality of all the circumstances.
Relevant to this determination are the following characteristics of the person
giving consent and the environment in which consent is given: (1) the age of the
defendant; (2) whether he was in a public or secluded location; (3) whether he
objected to the search or passively looked on; (4) the education and intelligence of
the defendant; (5) the presence of coercive police procedures; (6) the defendant's
belief that no incriminating evidence will be found; (7) the nature of the police
questioning; (8) the environment in which the questioning took place; and (9) the
possibly vulnerable subjective state of the person consenting. It is the State
which has the burden of proving, by clear and positive testimony, that the
necessary consent was obtained and that it was freely and voluntarily given.
In Nuevas's case, the Court is convinced that he indeed voluntarily
surrendered the incriminating bag to the police officers. Fami testified in this
wise:
FISCAL BELTRAN:
Q Now, when you saw this accused carrying this Exhibit "D,"
47 for your part, what did you do?
A I just talked to him and asked him where he was going and
according to him, he acted arrogantly, sir.
Q This arrogant action of the accused Jesus Nuevas, when
you confronted him did he resist?
A How did he show his elements, [sic] he said, "So what if
you are policeman[?]"
Q And being confronted with that arrogance, what did you do
next?
A Later on he kept calm by saying [sic] in Waray dialect, sir.
xxx xxx xxx
60
 Q What, exactly, did he tell you in Waray dialect?
A "Sir Fami[sic], don't charge me, sir[.] I am planning to go
home to Leyte. I was just earning enough money for
my fare, sir."
xxx xxx xxx
Q So when the accused speak [sic] to you in Waray, what else
did you do if you did anything?
A I pretended that I agree in his [sic] offer but I also asked
him where are the other staffs[sic] sir. 48
xxx xxx xxx
Q With respect to the bag that you confiscated from him,
what did you do?
A He voluntarily pointed it to me and I checked it, the bag,
for verification, sir. 49
Cabling likewise testified as follows:
Q When Fami got this from the accused, he opened this thing
that he got?
A The subject voluntarily submitted the same, sir.
Q Upon the order of Fami to open it?
A Nobody ordered it, sir. 50
There is reason to believe that Nuevas indeed willingly submitted the plastic
bag with the incriminating contents to the police officers. It can be seen that in
his desperate attempt to exculpate himself from any criminal liability, Nuevas
cooperated with the police, gave them the plastic bag and even revealed his
'associates,' offering himself as an informant. His actuations were consistent with
the lamentable human inclination to find excuses, blame others and save oneself
even at the cost of others' lives. Thus, the Court would have affirmed Nuevas's
conviction had he not withdrawn his appeal. SIaHTD
However, with respect to the search conducted in the case of Din, the Court
finds that no such consent had actually been given. Fami testified as follows:
FISCAL BELTRAN
Q Now, what did you do when you saw Din with that Exhibit
"C," the plastic bag?
A Din said that "Oo, Sir, that is owned by Nuevas" [sic] and I
took the said plastic bag.
Q When you took this plastic bag from Din. . . .
Was the accused Jesus Nueva [sic] present when Din told
you that?
A Yes, sir. Nuevas alighted also [from] the vehicle with
Cabling.
Q And what was the reaction of Nuevas when Din told you
that the bag belongs to him?
A I did not react, sir.
Q After getting that plastic bag from Reynaldo Din, what did
you do with it?
A I inspected the bag and I found out that there is still
marijuana packed in newspaper and wrapped therein,
sir. 51 [Emphasis supplied.]
Cabling, however, gave a different testimony, viz.:
FISCAL BELTRAN
Q And upon siting [sic] the two subject persons you have just
indicated in your earlier testimony, what did you do?
61
 A We approached them and introduced ourselves as police
officers, and pinpointed by Nuevas as the ones who
kept suspected prohibited drugs, sir.
Q After you approached these two people, what happened?
A These two people, upon introducing ourselves, [sic]
voluntarily surrendered to Fami those marijuana dry
leaves, sir. 52
The police officers gave inconsistent, dissimilar testimonies regarding the manner
by which they got hold of the bag. This already raises serious doubts on the
voluntariness of Din's submission of the plastic bag. Jurisprudence requires that
in case of consented searches or waiver of the constitutional guarantee
against obtrusive searches, it is fundamental that to constitute a waiver, it
must first appear that (1) the right exists; (2) the person involved had
knowledge, either actual or constructive, of the existence of such right; and
(3) the said person had an actual intention to relinquish the right. 53
The prosecution failed to clearly show that Din intentionally surrendered his right
against unreasonable searches. While it may not be contrary to human nature for
one to be jolted into surrendering something incriminating to authorities, Fami's
and Cabling's testimonies do not show that Din was in such a state of mind or
condition. Fami and Cabling did not testify on Din's composure whether he felt
surprised or frightened at the time which fact we find necessary to provide
basis for the surrender of the bag. There was no mention of any permission
made by the police officers to get or search the bag or of any consent given by
Din for the officers to search it. It is worthy to note that in cases where the Court
upheld the validity of consented search, the police authorities expressly asked, in
no uncertain terms, for the consent of the accused to be searched. And the consent
of the accused was established by clear and positive proof.
Neither can Din's silence at the time be construed as an implied acquiescence to
the warrantless search. In People v. Burgos, 54 the Court aptly ruled:
. . . 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 officer's
authority by force, or waiving his constitutional rights; but
instead they hold that a peaceful submission to a search or
seizure is not a consent or an invitation thereto, but is merely
a demonstration of regard for the supremacy of the law. 55
Without the dried marijuana leaves as evidence, Din's conviction cannot be
sustained based on the remaining evidence. The Court has repeatedly declared that
the conviction of the accused must rest not on the weakness of the defense but on
the strength of the prosecution. 56 As such, Din deserves an acquittal.
In this case, an acquittal is warranted despite the prosecution's insistence that the
appellants have effectively waived any defect in their arrest by entering their plea
and by their active participation in the trial of the case. Be it stressed that the
legality of an arrest affects only the jurisdiction of the court over the person of the
accused. Inspite of any alleged waiver, the dried marijuana leaves cannot be
admitted in evidence against the appellants, Din more specifically, as they
were seized during a warrantless search which was not lawful. A waiver of an
illegal warrantless arrest does not also mean a waiver of the inadmissibility of
evidence seized during an illegal warrantless arrest. 57
Turning to Inocencio's case, the Court likewise finds that he was wrongly
convicted of the crime charged. Inocencio's supposed possession of the dried
marijuana leaves was sought to be shown through his act of looking into the
plastic bag that Din was carrying. 58 Taking a look at an object, more so in this
case peeping into a bag while held by another, is not the same as taking
possession thereof. To behold is not to hold. Indeed, the act attributed to
Inocencio is insufficient to establish illegal possession of the drugs or even
conspiracy to illegally possess the same. The prosecution failed to show by
convincing proof that Inocencio knew of the contents of the bag and that he
conspired with Din to possess the illegal items. Inocencio was firm and
unshakeable in his testimony that he had no part in any delivery of marijuana
dried leaves.
Finally, the law enforcers should be reminded of the Court's dated but
nevertheless current exhortation:
. . . 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
62
 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. 59
WHEREFORE, the Decision dated 4 April 2002 of the Regional Trial Court of
Olongapo City, Branch 75, in Criminal Cases No. 458-97 and No. 459-97 is
reversed and modified. Appellants Reynaldo Din y Gonzaga and Fernando
Inocencio y Abadeos are hereby ACQUITTED. The Director of the Bureau of
Prisons is ordered to cause the immediate release of appellants from confinement,
unless they are being held for some other lawful cause, and to report to this Court
compliance herewith within five (5) days from receipt hereof. ISTCHE
SO ORDERED.
Quisumbing, Carpio, Carpio-Morales and Velasco, Jr., JJ., concur.
||| (People v. Nuevas y Garcia, G.R. No. 170233, February 22, 2007)
EN BANC
[G.R. No. 127755. April 14, 1999.]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.
JOSELITO DEL ROSARIO Y PASCUAL, accused-
appellant.
The Solicitor General for plaintiff-appellee.
Leovillo C. Agustin Law Offices for accused-appellant.
SYNOPSIS
Accused Joselito Del Rosario was found guilty as co-principal in the crime of
Robbery with Homicide and he was sentenced to suffer the death penalty and to
pay damages to the heirs of the victim. cdasia
Del Rosario alleged that he was just hired by Virgilio Santos to drive him to a
cockpit. He was not aware of the plan of Santos and his two companions to rob
and kill the victim. He was not able to seek assistance because Santos threatened
to shoot him if he did. He also failed to inform the police authorities about the
incident because the culprits has threatened him and his family. He claimed
exemption from criminal liability as he allegedly acted under the compulsion of
an irresistible force.
The conviction of Del Rosario must be set aside and his claim for exemption
sustained. He was then unarmed and unable to protect himself when he was
prevented at gunpoint from leaving the crime scene during the commission of the
robbery and killing. He was also forced to help the culprits escape after the
commission of the crime. Further, Del Rosario's failure to disclose what he knew
about the incident to the authorities does not affect his credibility. The natural
hesitance of most people to get involved in a criminal case is of judicial notice.
Given his quite limited means, Del Rosario understandably did not want to get
involved in the case so he chose to keep his silence. Besides, he was threatened
with physical harm should he squeal.
SYLLABUS
63
1. CRIMINAL LAW; EXEMPTING CIRCUMSTANCES; WHERE PERSON
ACTS UNDER COMPULSION OF IRRESISTIBLE FORCE; ELUCIDATED.
A person who acts under the compulsion of an irresistible force, like one who
acts under the impulse of an uncontrollable fear of equal or greater injury, is
exempt from criminal liability because he does not act with freedom. Actus me
invito factus non est meus actus. An act done by me against my will is not my act.
The force contemplated must be so formidable as to reduce the actor to a mere
instrument who acts not only without will but against his will. The duress, force,
fear or intimidation must be present, imminent and impending, and of such nature
as to induce a well-grounded apprehension of death or serious bodily harm if the
act be done. A threat of future injury is not enough. The compulsion must be of
such a character as to leave no opportunity for the accused for escape or self-
defense in equal combat. TcHCDE
2. ID.; ID.; ID.; PRESENT IN CASE AT BAR. As a rule, it is natural for
people to be seized by fear when threatened with weapons, even those less
powerful than a gun, such as knives and clubs. People will normally, usually and
probably do what an armed man asks them to do, nothing more, nothing less. In
the instant case, del Rosario was threatened with a gun. He could not therefore be
expected to flee nor risk his life to help a stranger. A person under the same
circumstances would be more concerned with his personal welfare and security
rather than the safety of a person whom he only saw for the first time that day.
There is no doubt that the fear entertained by del Rosario because of the gun
directly pointed at him was real and imminent. Such fear rendered him immobile
and subject to the will of Boy Santos, making him for the moment an automaton
without a will of his own. In other words, in effect, he could not be any more than
a mere instrument acting involuntarily and against his will. He is therefore exempt
from criminal liability since by reason of fear of bodily harm he was compelled
against his will to transport his co-accused away from the crime scene.
3. ID.; CONSPIRACY; ELUCIDATED. A conspiracy in the statutory
language exists when two or more persons come to an agreement concerning the
commission of a felony and decide to commit it. The objective of the conspirators
is to perform an act or omission punishable by law. That must be their intent.
There is need for "concurrence of wills" or "unity of action and purpose" or for
"common and joint purpose and design." Its manifestation could be shown by
"united and concerted action."
4. ID.; ID.; IMPLIED CONSPIRACY; HOW ESTABLISHED. Admittedly,
direct proof is not essential to establish conspiracy. Since by its nature conspiracy
is planned in utmost secrecy, it can rarely be proved by direct evidence.
Consequently, the presence of the concurrence of minds which is involved in
conspiracy may be inferred from proof of facts and circumstances which, taken
together, apparently indicate that they are merely parts of some complete whole. If
it is proved that two or more persons aimed by their acts towards the
accomplishment of the same unlawful object, each doing a part so that their
combined acts, though apparently independent, were in fact connected and
cooperative, indicating a closeness of personal association and a concurrence of
sentiment, a conspiracy may be inferred though no actual meeting among them to
concert means is proved. That would be termed an implied conspiracy.
Nevertheless, mere knowledge, acquiescence or approval of the act, without the
cooperation or agreement to cooperate, is not enough to constitute one a party to a
conspiracy, but that there must be intentional participation in the transaction with
a view to the furtherance of the common design and purpose. Conspiracy must be
established, not by conjectures, but by positive and conclusive evidence. In fact,
the same degree of proof necessary to establish the crime is required to support a
finding of the presence of a criminal conspiracy, which is, proof beyond
reasonable doubt.
5. ID.; ID.; ID.; NOT PRESENT IN CASE AT BAR. To convict the accused,
the presence of an implied conspiracy is required to be proved beyond reasonable
doubt. However, the fact that del Rosario was with the other accused when the
crime was committed is insufficient proof to show cabal. Mere companionship
does not establish conspiracy. The only incriminating evidence against del
Rosario is that he was at the scene of the crime but he has amply explained the
reason for his presence and the same has not been successfully refuted by the
prosecution. No complicity can be deduced where there is absolutely no showing
that the accused directly participated in the overt act of robbing and shooting
although he was with the person who robbed and killed the victim.
6. REMEDIAL LAW; EVIDENCE; WITNESSES; CREDIBILITY; NOT
AFFECTED BY FAILURE TO DISCLOSE INCIDENT TO AUTHORITIES.
That del Rosario did not disclose what he knew about the incident to the
authorities, to his employer or to the Barangay captain does not affect his
credibility. The natural hesitance of most people to get involved in a criminal case
is of judicial notice. Del Rosario was merely a tricycle driver with a family to look
after. Understandably he did not want to get involved in the case so he chose to
keep his silence. Besides, he was threatened with physical harm should he squeal.
7. ID.; CRIMINAL PROCEDURE; CUSTODIAL INVESTIGATION;
ELUCIDATED. Custodial investigation is the stage where the police
investigation is no longer a general inquiry into an unsolved crime but has begun
to focus on a particular suspect taken into custody by the police who carry out a
process of interrogation that lends itself to elicit incriminating statements. It is
64
well-settled that it encompasses any question initiated by law enforcers after a
person has been taken into custody or otherwise deprived of his freedom of action
in any significant way. This concept of custodial investigation has been broadened
by R.A. 7438 to include "the practice of issuing an 'invitation' to a person who is
investigated in connection with an offense he is suspected to have committed."
8. ID.; ID.; ID.; RIGHTS VIOLATED IN CASE AT BAR. Del Rosario was
deprived of his rights during custodial investigation. From the time he was
"invited" for questioning at the house of the barangay captain, he was already
under effective custodial investigation, but he was not apprised nor made aware
thereof by the investigating officers. The police already knew the name of the
tricycle driver and the latter was 'already' a suspect in the robbing and senseless
slaying of Virginia Bernas. Since the prosecution failed to establish that del
Rosario had waived his right to remain silent his verbal admissions on his
participation in the crime even before his actual arrest were inadmissible against
him, as the same transgressed the safeguards provided by law and the Bill of
Rights.
9. ID.; ID.; ARREST WITHOUT WARRANT; NOT LAWFUL IN CASE AT
BAR. When a police officer sees the offense, although at a distance, or hears
the disturbances created thereby, and proceeds at once to the scene thereof, he
may effect an arrest without a warrant on the basis of Sec. 5, par. (a), Rule 113,
since the offense is deemed committed in his presence or within his view. In
essence, Sec. 5, par. (a), Rule 113, requires that the accused be caught in flagrante
delicto or caught immediately after the consummation of the act. The arrest of del
Rosario is obviously outside the purview of the aforequoted rule since he was
arrested on the day following the commission of the robbery with homicide. On
the other hand, Sec. 5, par. (b), Rule 113, necessitates two (2) stringent
requirements before a warrantless arrest can be effected: (1) an offense has just
been committed; and, (2) the person making the arrest has personal knowledge of
facts indicating that the person to be arrested had committed it. Hence, there must
be a large measure of immediacy between the time the offense was committed and
the time of the arrest, and if there was an appreciable lapse of time between the
arrest and the commission of the crime, a warrant of arrest must be secured. Aside
from the sense of immediacy, it is also mandatory that the person making the
arrest must have personal knowledge of certain facts indicating that the person to
be taken into custody has committed the crime. Again, the arrest of del Rosario
does not comply with these requirements since, as earlier explained, the arrest
came a day after the consummation of the crime and not immediately thereafter.
As such, the crime had not been "just committed" at the time the accused was
arrested. Likewise, the arresting officers had no personal knowledge of facts
indicating that the person to be arrested had committed the offense since they
were not present and were not actual eyewitnesses to the crime, and they became
aware of his identity as the driver of the getaway tricycle only during the custodial
investigation.
10. ID.; ID.; ID.; ILLEGALITY WAIVED WHEN NOT OBJECTED BEFORE
ARRAIGNMENT. However, the conspicuous illegality of del Rosario's arrest
cannot affect the jurisdiction of the court a quo because even in instances not
allowed by law, a warrantless arrest is not a jurisdictional defect and any objection
thereto is waived when the person arrested submits to arraignment without any
objection, as in this case. EcHaAC
DECISION
BELLOSILLO, J p:
ON AUTOMATIC REVIEW is the decision of the court a quo finding accused
Joselito del Rosario y Pascual guilty as co-principal in the crime of Robbery with
Homicide and sentencing him to death, and to pay the heirs of victim Virginia
Bernas P550,000.00 as actual damages and P100,000.00 as moral and exemplary
damages. 1
Joselito del Rosario y Pascual, Ernesto Marquez alias "Jun," Virgilio Santos alias
"Boy Santos" and John Doe alias "Dodong" were charged with the special
complex crime of Robbery with Homicide for having robbed Virginia Bernas, a
66-year old businesswoman, of P200,000.00 in cash and jewelry and on the
occasion thereof shot and killed her. 2
While accused Joselito del Rosario pleaded not guilty, 3 Virgilio "Boy" Santos
and John Doe alias "Dodong" remained at large. Ernesto "Jun" Marquez was
killed in a police encounter. Only Joselito del Rosario was tried. llcd
These facts were established by the prosecution from the eyewitness account of
tricycle driver Paul Vincent Alonzo: On 13 May 1996 between 6:00 and 6:30 in
the evening, Alonzo stopped his tricycle by the side of Nita's Drugstore, General
Luna St., Cabanatuan City, when three women flagged him. Parked at a distance
of about one and a-half (1) meters in front of him was a tricycle driven by
accused Joselito del Rosario. At that point, Alonzo saw two (2) men and a woman
65
grappling for possession of a bag. After taking hold of the bag one of the two men
armed with a gun started chasing a man who was trying to help the woman, while
the other snatcher kicked the woman sending her to the ground. Soon after, the
armed man returned and while the woman was still on the ground he shot her on
the head. The bag taken by the man was brought to the tricycle of accused del
Rosario where someone inside received the bag. The armed man then sat behind
the driver while his companion entered the sidecar. When the tricycle sped away
Alonzo gave chase and was able to get the plate number of the tricycle. He also
recognized the driver, after which he went to the nearest police headquarters and
reported the incident. 4
Accused Joselito del Rosario gave his own version of the incident: At around 5:30
in the afternoon he was hired for P120.00 5 by a certain "Boy" Santos, 6 his co-
accused. Their original agreement was that he would drive him to a cockpit at the
Blas Edward Coliseum. 7 However despite their earlier arrangement Boy Santos
directed him to proceed to the market place to fetch "Jun" Marquez and "Dodong"
Bisaya. He (del Rosario) acceded. 8 Marquez and Bisaya boarded in front of the
parking lot of Merced Drugstore at the public market. 9 Subsequently, he was
asked to proceed and stop at the corner of Burgos and General Luna Sts. where
Bisaya alighted on the pretext of buying a cigarette. The latter then accosted the
victim Virginia Bernas and grappled with her for the possession of her bag. Jun
Marquez alighted from the tricycle to help "Dodong" Bisaya. 10 Accused del
Rosario tried to leave and seek help but "Boy Santos" who stayed inside the
tricycle prevented him from leaving and threatened in fact to shoot him. cdtai
Meanwhile, "Dodong" Bisaya succeeded in taking the victim's bag, but before
boarding the tricycle "Jun" Marquez mercilessly shot the victim on the head while
she was lying prone on the ground. After the shooting, "Dodong" Bisaya boarded
the sidecar of the tricycle while "Jun" Marquez rode behind del Rosario and
ordered him to start the engine and drive towards Dicarma. While inside his
tricycle, del Rosario overheard his passengers saying that they would throw the
bag at Zulueta St. where there were cogon grasses. 11 Upon arriving at Dicarma,
the three (3) men alighted and warned del Rosario not to inform the police
authorities about the incident otherwise he and his family would be harmed. 12
Del Rosario then went home. 13 Because of the threat, however, he did not report
the matter to the owner of the tricycle nor to the barangay captain and the police.
14
As earlier stated, the court a quo found accused Joselito del Rosario guilty as
charged and sentenced him to death. He now contends in this automatic review
that the court a quo erred in: (1) Not finding the presence of threat and irresistible
force employed upon him by his co-accused Virgilio "Boy" Santos, Ernesto "Jun"
Marquez and "Dodong" Bisaya; (2) Not considering his defense that he was not
part of the conspiracy among co-accused "Boy" Santos, "Jun" Marquez and
"Dodong" Bisaya to commit the crime of Robbery with Homicide; (3) Not
considering the violations on his constitutional rights as an accused; and, (4) Not
considering that there was no lawful warrantless arrest within the meaning of Sec.
5, Rule 113, of the Rules of Court. 15
The conviction of del Rosario must be set aside. His claim for exemption from
criminal liability under Art. 12, par. 5, Revised Penal Code as he acted under the
compulsion of an irresistible force must be sustained. He was then unarmed and
unable to protect himself when he was prevented at gunpoint by his co-accused
from leaving the crime scene during the perpetration of the robbery and killing,
and was only forced to help them escape after the commission of the crime. 16
But the trial court ruled that his fear was merely speculative, fanciful and remote,
hence, could not be considered uncontrollable; and that a gun pointed at him did
not constitute irresistible force because it fell short of the test required by law and
jurisprudence. 17
We disagree. A person who acts under the compulsion of an irresistible force, like
one who acts under the impulse of an uncontrollable fear of equal or greater
injury, is exempt from criminal liability because he does not act with freedom.
Actus me invito factus non est meus actus. An act done by me against my will is
not my act. The force contemplated must be so formidable as to reduce the actor
to a mere instrument who acts not only without will but against his will. The
duress, force, fear or intimidation must be present, imminent and impending; and
of such nature as to induce a well-grounded apprehension of death or serious
bodily harm if the act be done. A threat of future injury is not enough. The
compulsion must be of such a character as to leave no opportunity for the accused
for escape or self-defense in equal combat. 18
As a rule, it is natural for people to be seized by fear when threatened with
weapons, even those less powerful than a gun, such as knives and clubs. People
will normally, usually and probably do what an armed man asks them to do,
nothing more, nothing less. In the instant case, del Rosario was threatened with a
gun. He could not therefore be expected to flee nor risk his life to help a stranger.
A person under the same circumstances would be more concerned with his
personal welfare and security rather than the safety of a person whom he only saw
for the first time that day. 19
Corollary with the defense of del Rosario, we hold that the trial court erred when
it said that it was "Boy" Santos who left the tricycle to chase the companion of the
66
victim and then shot the victim on the head, instantly killing her. 20 A careful and
meticulous scrutiny of the transcripts and records of the case, particularly the
testimonies of witness Alonzo and del Rosario himself, reveals that it was "Jun"
Marquez who ran after the victim's helper and fired at the victim. Witness Alonzo
testified on direct examination
Q: What was that unusual incident that transpired in that place
at that time?
A: I saw two men and a lady grappling for the possession of a
bag, sir . . .
Q: What happened after the bag of the lady was grabbed by
two men?
A: One helper of the lady was chased by the other man, sir.
Q: Who was that man who chased the helper of the lady?
A: He was the one holding the gun, sir . . .
Q: What happened when the bag of the woman was already
taken by the two men who grappled the same from
her?
A: The man who chased the helper of the lady returned to the
scene while the other man was then kicking the lady
who in turn fell to the ground, sir. cdasia
Q: What happened to the lady who fell to the ground?
A: The man who chased the helper of the lady returned and
then shot the woman who was then lying on the
ground, sir . . .
Q: What about the bag, what happened to the bag?
A: The bag was taken to a motorcycle, sir.
Q: Will you please state before the Court what you noticed
from the tricycle which was at a distance of about
one a half meter?
A: There was a passenger inside the tricycle, sir . . .
Q: What happened to that woman that was shot by the man
who grappled for the possession of the bag?
A: She was no longer moving and lying down, sir.
Q: After the shooting by one of the two men of the woman
what else happened?
A: They went away, sir . . .
Q: Will you please tell the Court in what portion of the
tricycle did these men sit in the tricycle?
A: The man who was holding the gun sat himself behind the
driver while the other man entered the sidecar, sir.
21
On the continuation of his direct examination, after an ocular inspection on the
crime scene conducted by the trial court, witness Alonzo categorically stated
Q: Will you please tell us where in particular did you see the
accused who was then holding the gun fired at the
victim?
A: At the time one man was kicking the victim it was then his
other companion holding a gun chased the helper of
the deceased going towards Burgos Avenue, sir.
Q: What happen (sic) afterwards?
67
 A: The man with the gun returned and then while the victim A: Yes, sir.
was lying down in this spot the man holding a gun
shot the victim, sir. 22 xxx xxx xxx

On cross-examination, the same witness further clarified Court:

Q: So, you saw the two other accused returned back to the At that time you were seated at the tricycle, which tricycle
tricycle? was used by the assailants?

A: Yes, sir. LLphil A: Yes, sir.

Q: And one of their companion was already inside the Q: Then what did you do?
tricycle?
A: I tried to escape, sir, but I was stopped by them.
xxx xxx xxx
Q: When you said "they" to whom are you referring?
Court:
A: Boy Santos and Jun Marquez, sir.
There was somebody inside the tricycle where the handbag
was given. Q: And at that time where was Boy Santos?

xxx xxx xxx

A: He was inside the tricycle, sir.

A: Yes, sir. Q: And what about Jun Marquez?

Q: And the one who sat at the back of the tricycle driver
A: He alighted from the tricycle and helped him grabbed
was the person with the gun?
(sic) the bag of the victim.

A: Yes, sir. 23
Q: And was the bag grabbed and by whom?

On the other hand, accused Del Rosario declared during the direct examination
A: Yes, sir, by Dodong Visaya was able to grab the bag.
that
Q: And after that what happened?
Q: . . . . On the evening of May 13,1996 you were the driver
of the tricycle as testified to by Eduardo Nalagon?
A: Both of them rode inside my tricycle, sir.
A: Yes, sir.
Court:
Q: Now, you also heard that there was a shoot out near the
Cathedral and the Nita's Drugstore at Gen. Tinio St.? Did you not see any shooting?

68
A: There was, sir.
Q: Who was shot?
A: Jun Marquez shot the woman, sir . . .
On cross-examination, accused further stated
Q: When the bag of the woman was being grabbed you know
that what was transpiring was wrong and illegal?
A: Yes, sir.
Q: But you did not try to leave?
A: I tried to leave but Boy Santos who was inside my tricycle
prevented me.
Q: During that time before you leave (sic) how many firearms
did you see?
A: Two firearms, sir, one in the possession of Boy (Jun?)
Marquez and one in the possession of Boy Santos . .
.
Q: And at the time when the shooting took place where was
Boy Santos?
A: He was still inside my tricycle, sir.
Q: And during the shooting when Boy Santos was inside the
tricycle and when you tried to escape that was the
time when Boy Santos threatened you if you will
escape something will happen to your family?
A: Yes, sir.
Q: After the shooting who first boarded the tricycle, Boy
(Jun?) Marquez or Dodong Visaya?
A: Dodong Visaya, sir .
Q: And immediately thereafter Jun Marquez boarded your
tricycle sitting at your back?
A: Yes, sir. 24
Q: After stopping in that place for one minute what else
happened?
A: I saw Dodong Bisaya grabbing the bag of the woman, sir.
Q: How about your two companions, what are (sic) they
doing while Dodong Bisaya was grabbing the bag of
the woman?
A: Jun Marquez was helping Dodong Bisaya, sir.
Q: What happened after Jun Marquez helped Dodong Bisaya?
A: I heard a gunshot and I saw the woman lying down . . .
Q: You could have ran away to seek the help of the police or
any private persons?
A: I was not able to ask for help because Boy Santos pointed
his gun to me, sir.
Q: Was the gun being carried by Boy Santos, is the one that is
used in shooting the old woman?
A: No, sir . . .
Q: Where was Boy Santos when Dodong Bisaya and Jun
Marquez were grappling for the possession of the
handbag?
A: He was then inside the tricycle, sir . . . 25
69
 Q: Mr. Witness, you testified that the reason why you just
cannot leave the area where the incident occurred is
because a gun was pointed to you by Boy Santos and
he was telling you that you should not do anything
against their will, they will kill you and your family
will be killed also, is that correct?
A: Yes, sir.
Q: Now, is it not a fact that at the time you stop (sic) your
tricycle which was loaded by your other three co-
accused in this case, all of them alighted and that
Boy Santos ran after a helper of the victim going
towards the public market along Burgos Street?
A: He did not alight from the tricycle, sir.
Court:
Are you quite sure of that?
A: Yes, sir. 26
Del Rosario maintains that "Boy" Santos never left the tricycle and that the latter
pointed his gun at him and threatened to shoot if he tried to escape. He also asserts
that it was "Jun" Marquez who shot the victim and sat behind him in the tricycle.
LLjur
From the narration of witness Alonzo, these events stood out: that after the bag of
the victim was grabbed, her male helper was chased by a man holding a gun; that
the gunwielder returned and shot the victim and then sat behind the driver of the
tricycle; and, that the bag was given to a person who was inside the tricycle.
Taking the testimony of witness Alonzo in juxtaposition with the testimony of del
Rosario, it can be deduced that "Jun" Marquez was the person witness Alonzo was
referring to when he mentioned that a helper of the lady was chased "by the other
man," and that this "other man" could not be "Boy" Santos .who stayed inside the
tricycle and to whom the bag was handed over. This conclusion gives credence to
the claim of del Rosario that "Boy" Santos never left the tricycle, and to his
allegation that "Boy" Santos stayed inside the tricycle precisely to threaten him
with violence and to prevent him from fleeing; that there could have been no other
plausible reason for "Boy" Santos to stay in the tricycle if the accused was indeed
a conspirator; that "Boy" Santos could have just left the tricycle and helped in the
commission of the crime, particularly when he saw the victim grappling with
"Dodong" Bisaya and resisting the attempts to grab her bag; and, that "Boy"
Santos opted to remain inside the tricycle to fulfill his preordained role of
threatening del Rosario and insuring that he would not escape and leave them
behind. 27
Even if the tricycle of del Rosario was only parked one meter and a half (1-) in
front of the tricycle of witness Alonzo, the latter still could not have totally seen
and was not privy to events that were transpiring inside the vehicle, i.e., the
pointing of the gun by "Boy" Santos at del Rosario simultaneously with the
robbing and shooting of the victim. From the exhibits submitted by the
prosecution panel the back of the sidecar of del Rosario tricycle was not
transparent. 28
There is no doubt that the fear entertained by del Rosario because of the gun
directly pointed at him was real and imminent. Such fear rendered him immobile
and subject to the will of Boy Santos, making him for the moment an automation
without a will of his own. In other words, in effect, he could not be any more than
a mere instrument acting involuntarily and against his will. He is therefore exempt
from criminal liability since by reason of fear of bodily harm he was compelled
against his will to transport his co-accused away from the crime scene.
On the issue of conspiracy, the trial court anchored del Rosario's conviction on
his participation in the orchestrated acts of "Boy" Santos, "Jun" Marquez and
"Dodong" Bisaya. According to the trial court, del Rosario facilitated the escape
of the other malefactors from the crime scene and conspiracy between accused
and his passengers was evident because "while the grappling of the bag, the
chasing of the helper of the victim and the shooting that led to the death of
Virginia Bernas were happening, accused Joselito del Rosario was riding on his
tricycle and the engine of the motor was running;" 29 that the "accused did not
deny that the tricycle driven by him and under his control was hired and used by
his co-accused in the commission of the crime; neither did he deny his failure to
report to the authorities the incident of robbery, killing and fleeing away from the
scene of the crime." 30
We disagree with the trial court. A conspiracy in the statutory language exists
when two or more persons come to an agreement concerning the commission of a
felony and decide to commit it. The objective of the conspirators is to perform an
act or omission punishable by law. That must be their intent. There is need for
"concurrence of wills" or "unity of action and purpose" or for "common and joint
70
purpose and design." Its manifestation could be shown by "united and concerted
action." 31
Admittedly, direct proof is not essential to establish conspiracy. Since by its
nature conspiracy is planned in utmost secrecy, it can rarely be proved by direct
evidence. Consequently, the presence of the concurrence of minds which is
involved in conspiracy may be inferred from proof of facts and circumstances
which, taken together, apparently indicate that they are merely parts of some
complete whole. If it is proved that two or more persons aimed by their acts
towards the accomplishment of the same unlawful object, each doing a part so that
their combined acts, though apparently independent, were in fact connected and
cooperative, indicating a closeness of personal association and a concurrence of
sentiment, a conspiracy may be inferred though no actual meeting among them to
concert means is proved. That would be termed an implied conspiracy. 32
Nevertheless, mere knowledge, acquiescence or approval of the act, without the
cooperation or agreement to cooperate, is not enough to constitute one a party to a
conspiracy, but that there must be intentional participation in the transaction with
a view to the furtherance of the common design and purpose. Conspiracy must be
established, not by conjectures, but by positive and conclusive evidence. In fact,
the same degree of proof necessary to establish the crime is required to support a
finding of the presence of a criminal conspiracy, which is, proof beyond
reasonable doubt. 33
In the instant case, while del Rosario admits that he was at the locus criminis as he
was the driver of the getaway vehicle, he nonetheless rebuts the imputation of
guilt against him by asserting that he had no inkling of the malevolent design of
his co-accused to rob and kill since he was not given any briefing thereof . He was
merely hired by Boy Santos to drive to an agreed destination and he was
prevented at gunpoint from leaving the scene of the crime since he was ordered to
help them escape. cdlex
In this case, the trial court stated that "there is no evidence that the accused came
to an agreement concerning the commission of the felony and decided to commit
the same." 34 Therefore, in order to convict the accused, the presence of an
implied conspiracy is required to be proved beyond reasonable doubt. However,
the fact that del Rosario was with the other accused when the crime was
committed is insufficient proof to show cabal. Mere companionship does not
establish conspiracy. 35 The only incriminating evidence against del Rosario is
that he was at the scene of the crime but he has amply explained the reason for his
presence and the same has not been successfully refuted by the prosecution. As
stated earlier, he feared for his safety and security because of the threat made by
his co-accused that he would be killed should he shout for help. No complicity
can be deduced where there is absolutely no showing that the accused directly
participated in the overt act of robbing and shooting although he was with the
persons who robbed and killed the victim. 36
That del Rosario did not disclose what he knew about the incident to the
authorities, to his employer or to the barangay captain does not affect his
credibility. The natural hesitance of most people to get involved in a criminal case
is of judicial notice. 37 It must be recalled that del Rosario was merely a tricycle
driver with a family to look after. Given his quite limited means, del Rosario
understandably did not want to get involved in the case so he chose to keep his
silence. Besides, he was threatened with physical harm should he squeal.
Del Rosario further contends that there was violation of his right to remain silent,
right to have competent and independent counsel preferably of his own choice,
and right to be informed of these rights as enshrined and guaranteed in the Bill of
Rights. 38 As testified to by SPO4 Geronimo de Leon, the prosecution witness
who was the team leader of the policemen who investigated the 13 May incident,
during his cross-examination
Upon finding the name of the owner of the tricycle, they
proceeded to Bakod Bayan in the house of the barangay
captain where the owner of the tricycle was summoned and
who in turn revealed the driver's name and was invited for
interview. The driver was accused Joselito del Rosario who
volunteered to name his passengers on May 13, 1996. On the
way to the police station, accused informed them of the bag
and lunch kit's location and the place where the hold-uppers
may be found and they reported these findings to their
officers, Capt. Biag and Capt. Cruz. After lunch, they
proceeded to Brgy. Dicarma composed of 15 armed men
where a shoot-out transpired that lasted from 1:00 to 4:00
o'clock in the afternoon. After a brief encounter, they went
inside the house where they found Marquez dead holding a
magazine and a gun. While all of these were happening,
accused del Rosario was at the back of the school, after which
they went back to the police station. The investigator took the
statement of the accused on May 14,1996, and was only
subscribed on May 22,1996. All the while, he was detained in
the police station as ordered by the Fiscal. His statements
were only signed on May 16, 1996. He also executed a waiver
71
 of his detention. His Sinumpaang Salaysay was done with the
assistance of Ex-Judge Talavera. 39
A further perusal of the transcript reveals that during the encounter at Brgy.
Dicarma, del Rosario was handcuffed by the police because allegedly they had
already gathered enough evidence against him and they were afraid that he
might attempt to escape. 40
Custodial investigation is the stage where the police investigation is no longer a
general inquiry into an unsolved crime but has begun to focus on a particular
suspect taken into custody by the police who carry out a process of interrogation
that lends itself to elicit incriminating statements. It is well-settled that it
encompasses any question initiated by law enforcers after a person has been taken
into custody or otherwise deprived of his freedom of action in any significant
way. 41 This concept of custodial investigation has been broadened by RA 7438
42 to include "the practice of issuing an 'invitation' to a person who is
investigated in connection with an offense he is suspected to have committed."
Section 2 of the same Act further provides that
. . . Any public officer or employee, or anyone acting under
his order or in his place, who arrests, detains or investigates
any person for the commission of an offense shall inform the
latter, in a language known and understood by him, of his
right to remain silent and to have competent and independent
counsel, preferably of his own choice, who shall at all times
be allowed to confer privately with the person arrested,
detained or under custodial investigation. If such person
cannot afford the services of his own counsel, he must be
provided with a competent and independent counsel by the
investigating officer. cdll
From the foregoing, it is clear that del Rosario was deprived of his rights during
custodial investigation. From the time he was "invited" for questioning at the
house of the barangay captain, he was already under effective custodial
investigation, but he was not apprised nor made aware thereof by the investigating
officers. The police already knew the name of the tricycle driver and the latter was
already a suspect in the robbing and senseless slaying of Virginia Bernas. Since
the prosecution failed to establish that del Rosario had waived his right to remain
silent, his verbal admissions on his participation in the crime even before his
actual arrest were inadmissible against him, as the same transgressed the
safeguards provided by law and the Bill of Rights.
Del Rosario also avers that his arrest was unlawful since there was no warrant
therefor. Section 5, Rule 113 of the Rules of Court provides: 43
Sec. 5. Arrest without warrant; when lawful. A peace
officer or a private person may, without a warrant, arrest a
person: (a) When, in his presence, the person to be arrested
has committed, is actually committing, or is attempting to
commit an offense; (b) When an offense has in fact 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 has escaped from
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.
It must be recalled that del Rosario was arrested by SPO4 De Leon during the
police raid at the place of "Jun" Marquez at Brgy. Dicarma on 14 May 1996. In
People vs. Sucro 44 we held that when a police officer sees the offense, although
at a distance, or hears the disturbances created thereby, and proceeds at once to
the scene thereof, he may effect an arrest without a warrant on the basis of Sec. 5,
par. (a), Rule 113, since the offense is deemed committed in his presence or
within his view. In essence, Sec. 5, par. (a), Rule 113, requires that the accused be
caught in flagrante delicto or caught immediately after the consummation of the
act. The arrest of del Rosario is obviously outside the purview of the aforequoted
rule since he was arrested on the day following the commission of the robbery
with homicide.
On the other hand, Sec. 5, par. (b), Rule 113, necessitates two (2) stringent
requirements before a warrantless arrest can be effected: (1) an offense has just
been committed; and, (2) the person making the arrest has personal knowledge of
facts indicating that the person to be arrested had committed it. Hence, there must
be a large measure of immediacy between the time the offense was committed and
the time of the arrest, and if there was an appreciable lapse of time between the
arrest and the commission of the crime, a warrant of arrest must be secured. Aside
from the sense of immediacy, it is also mandatory that the person making the
arrest must have personal knowledge of certain facts indicating that the person to
be taken into custody has committed the crime. 45 Again, the arrest of del Rosario
does not comply with these requirements since, as earlier explained, the arrest
came a day after the consummation of the crime and not immediately thereafter.
As such, the crime had not been "just committed'' at the time the accused was
arrested. Likewise, the arresting officers had no personal knowledge of facts
72
indicating that the person to be arrested had committed the offense since they
were not present and were not actual eyewitnesses to the crime, and they became
aware of his identity as the driver of the getaway tricycle only during the custodial
investigation. cda
However, the conspicuous illegality of del Rosario's arrest cannot affect the
jurisdiction of the court a quo because even in instances not allowed by law, a
warrantless arrest is not a jurisdictional defect and any objection thereto is waived
when the person arrested submits to arraignment without any objection, as in this
case. 46
A transgression of the law has occurred. Unfortunately, an innocent person lost
her life and property in the process. Someone therefore must be held accountable,
but it will not be accused Joselito del Rosario; we must acquit him. Like victim
Virginia Bernas, he too was a hapless victim who was forcibly used by other
persons with nefarious designs to perpetrate a dastardly act. Del Rosario's defense
of "irresistible force" has been substantiated by clear and convincing evidence. On
the other hand, conspiracy between him and his co-accused was not proved
beyond a whimper of a doubt by the prosecution, thus clearing del Rosario of any
complicity in the crime charged.
WHEREFORE, the decision of the Regional Trial Court of Cabanatuan City
convicting accused JOSELITO DEL ROSARIO Y PASCUAL of Robbery with
Homicide and sentencing him to death, is REVERSED and SET ASIDE, and the
accused is ACQUITTED of the crime charged. His immediate RELEASE from
confinement is ordered unless held for some other lawful cause. In this regard, the
Director of Prisons is directed to report to the Court his compliance herewith
within five (5) days from receipt hereof. LLpr
SO ORDERED.
Davide, Jr., C.J., Romero, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban,
Quisumbing, Purisima, Pardo, Buena, Gonzaga-Reyes and Ynares-Santiago, JJ.,
concur.
||| (People v. Del Rosario y Pascual, G.R. No. 127755, April 14, 1999)
THIRD DIVISION
[G.R. No. 121917. March 12, 1997.]
ROBIN CARIO PADILLA @ ROBINHOOD
PADILLA, petitioner, vs. COURT OF APPEALS and
PEOPLE of the PHILIPPINES, respondents.
Raval and Lokin, Robert A. Padilla and Philip Jurado and R.A.V. Saguisag and
Gina C. Garcia for petitioner.
The Solicitor General for respondents.
SYLLABUS
1. REMEDIAL LAW; CRIMINAL PROCEDURE; ARREST; WARRANTLESS
ARREST; GROUNDS. Warrantless arrests are sanctioned in the following
instances: "Sec. 5. Arrest without warrant ; when lawful. A peace officer or a
private person may, without a warrant, arrest a person: (a) When, in his presence,
the person to be arrested has committed, is actually committing, or is attempting
to commit an offense., (b) When an offense has in fact just been committed, and
he has personal knowledge of facts indicating that the person to be arrested has
committed it; (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
temporarily confined while his case is pending, or has escaped while being
transferred from one confinement to another.
2. ID.; ID.; ID.; ID.; "PRESENCE OF ARRESTING OFFICER OR PRIVATE
PERSON"; PRESENCE DOES NOT ONLY REQUIRE THE PERSON TO SEE
THE OFFENSE BUT ALSO WHEN HE "HEARS THE DISTURBANCE
CREATED AND PROCEEDS AT ONCE TO THE SCENE"; CASE AT BAR.
Paragraph (a) requires that the person be arrested (i) after he has committed or
while he is actually committing or is at least attempting to commit an offense, (ii)
in the presence of the arresting officer or private person. Both elements concurred
here, as it has been established that petitioner's vehicle figured in a hit and run
an offense committed in the "presence" of Manarang, a private person, who then
sought to arrest petitioner. It must be stressed at this point that "presence" does not
only require that the arresting person sees the offense, but also when he "hears the
disturbance created thereby AND proceeds at once to the scene." As testified to by
73
Manarang, he heard the screeching of tires followed by a thud, saw the sideswiped
victim (balut vendor), reported the incident to the police and thereafter gave chase
to the erring Pajero vehicle using his motorcycle in order to apprehend its driver.
After having sent a radio report to the PNP for assistance, Manarang proceeded to
the Abacan bridge where he found responding policemen SPO2 Borja and SPO2
Miranda already positioned near the bridge who effected the actual arrest of
petitioner.
3. ID.; ID.; ID.; ID.; RATIONALE. It is appropriate to state at this juncture
that a suspect, like petitioner herein, cannot defeat the arrest which has been set in
motion in a public place for want of a warrant as the police was confronted by an
urgent need to render aid or take action. The exigent circumstances of hot pursuit,
a fleeing suspect, a moving vehicle, the public place and the raining nighttime all
created a situation in which speed is essential and delay improvident. The court
acknowledges police authority to make the forcible stop since they had more than
mere "reasonable and articulable" suspicion that the occupant of the vehicle has
been engaged in criminal activity.
4. ID.; ID.; ID.; ID.; WHEN CAUGHT IN FLAGRANTE DELICTO. When
caught in flagrante delicto with possession of an unlicensed arm (Smith &
Wesson) and ammunition (M-16 magazine), petitioner's warrantless arrest was
proper as he was again actually committing another offense (illegal possession of
firearm and ammunitions) and this time in the presence of a peace officer.
Besides, the policemen's warrantless arrest of petitioner could likewise be justified
under paragraph (b) as he had in fact just committed an offense. There was no
supervening event or a considerable lapse of time between the hit and run and the
actual apprehension. Moreover, after having stationed themselves at the Abacan
bridge in response to Manarang's report, the policemen saw for themselves the
fast approaching Pajero of petitioner, its dangling plate number (PMA 777 as
reported by Manarang), and the dented hood and railings thereof. These formed
part of the arresting police officer's personal knowledge of the facts indicating
that, petitioner's Pajero was indeed the vehicle involved in the hit and run
accident. Verily their, the arresting police officers acted upon verified personal
knowledge and not on unreliable hearsay information.
5. ID; ID.; ID.; OBJECTION, DEFECT OR IRREGULARITY MUST BE MADE
BEFORE PLEA. Any objection, defect or irregularity attending an arrest must
be made before the accused enters his plea. Petitioner's belated challenge thereto
aside from his failure to quash the information, his participation in the trial and by
presenting his evidence, placed him in estoppel to assail the legality of his arrest.
Likewise, by applying for bail, petitioner patently waived such irregularities and
defects.
6. ID.; ID.; WARRANTLESS SEARCH AND SEIZURE OF PROPERTY;
WHEN VALID. The five (5) well-settled instances when a warrantless search
and seizure of property is valid, are as follows: 1. warrantless search incidental to
a lawful arrest recognized under Section 12, Rule 126 of the Rules of Court and
by prevailing jurisprudence. 2. Seizure of evidence in "plain view," the elements
of which are: (a). a prior valid intrusion based on the valid warrantless arrest in
which the police are legally present in the pursuit of their official duties; (b). the
evidence was inadvertently discovered by the police who had the right to be where
they are; (c). the evidence must be immediately apparent, and (d). "plain view"
justified mere seizure of evidence without further search. 3. search of a moving
vehicle. Highly regulated by the government, the vehicle's inherent mobility
reduces expectation of privacy especially when its transit in public thoroughfares
furnishes a highly reasonable suspicion amounting to probable cause that the
occupant committed a criminal activity. 4. consented warrantless search, and 5.
customs search.
7. ID.; ID.; ID.; "PLAINVIEW" DOCTRINE; APPLIED IN CASE AT BAR.
The seizure of the Smith & Wesson revolver and an M-16 rifle magazine was
justified for they came within "plain view" of the policemen who inadvertently
discovered the revolver and magazine tucked in petitioner's waist and back pocket
respectively, when he raised his hands after alighting from his Pajero. The same
justification applies to the confiscation of the M-16 armalite rifle which was
immediately apparent to the policemen as they took a casual glance at the Pajero
and saw said rifle lying horizontally near the driver's seat. Thus, it has been held
that: "(W)hen in pursuing an illegal action or in the commission of a criminal
offense, the . . . 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 person and the taking of the
corpus delicti."
8. ID.; ID.; ID.; VOLUNTARY SURRENDER OF FIREARM AND ASSORTED
MAGAZINE, WAIVER OF RIGHT AGAINST ILLEGAL SEARCH AND
SEIZURE. With respect to the Berreta pistol and a black bag containing
assorted magazines, petitioner voluntarily surrendered them to the police. This
latter gesture of petitioner indicated a waiver of his right against the alleged search
and seizure, and that his failure to quash the information estopped him from
assailing any purported defect.
9. ID.; ID.; SEARCH INCIDENTAL TO AN ARREST. Even assuming that
the firearms and ammunitions were products of an active search done by the
authorities on the person and vehicle of petitioner, their seizure without a search
warrant nonetheless can still be justified under a search incidental to a lawful
74
arrest (first instance). Once the lawful arrest was effected, the police may
undertake a protective search of the passenger compartment and containers in the
vehicle which are within petitioner's grabbing distance regardless of the nature of
the offense. This satisfied the two-tiered test of an incidental search: (i) the item to
be searched (vehicle) was within the arrestee's custody or area of immediate
control and (ii) the search was contemporaneous with the arrest. The products of
that search are admissible evidence not excluded by the exclusionary rule.
Another justification is a search of a moving vehicle (third instance). In
connection therewith, a warrantless search is constitutionally permissible when, as
in this case, the officers conducting the search have reasonable or probable cause
to believe, before the search, that either the motorist is a law-offender (like herein
petitioner with respect to the hit and run) or the contents or cargo of the vehicle
are or have been instruments or the subject matter or the proceeds of some
criminal offense.
10. CRIMINAL LAW; ILLEGAL POSSESSION OF FIREARM; REQUISITES.
In crimes involving illegal possession of firearm, two requisites must be
established, viz.: (1) the existence of the subject firearm and, (2) the fact that the
accused who owned or possessed the firearm does not have the corresponding
license permit to possess.
11. ID.; ID.; ID.; CASE AT BAR. The first element is beyond dispute as the
subject firearms and ammunitions were seized from petitioner's possession via a
valid warrantless search, identified and offered in evidence during trial. As to the
second element, the same was convincingly proven by the prosecution. Indeed,
petitioner's purported Mission Order and Memorandum Receipt are inferior in the
face of the more formidable evidence for the prosecution as our meticulous review
of the records reveals that the Mission Order and Memorandum Receipt were
mere afterthoughts contrived and issued under suspicious circumstances.
12. ID.; ID.; TESTIMONY OF REPRESENTATIVE OR CERTIFICATION
FROM PNP-FEO THAT A PERSON IS NOT A LICENSEE OF ANY
FIREARM, SUFFICIENT TO PROVE SECOND ELEMENT. In several
occasions, the Court has ruled that either the testimony of a representative of, or a
certification from, the PNP Firearms and Explosives Office (FEO) attesting that a
person is not a licensee of any firearm would suffice to prove beyond reasonable
doubt the second element of illegal possession of firearm. In People vs. Tobias,
we reiterated that such certification is sufficient to show that a person has in fact
no license.
13. REMEDIAL LAW; EVIDENCE; FINDINGS OF FACT OF THE TRIAL
COURT, GENERALLY ACCORDED RESPECT AND FINALITY ON
APPEAL. The fact that petitioner does not have the license or permit to
possess was overwhelmingly proven by the prosecution. The certification may
even be dispensed with in the light of the evidence that an M-16 rifle and any
short firearm higher than a .38 caliber pistol, akin to the confiscated firearms
cannot be licensed to a civilian, as in the case of petitioner. The Court entertains
no doubt in affirming petitioner's conviction especially as we find no plausible
reason, and none was presented, to depart from the factual findings of both the
trial court and respondent court which, as a rule, are accorded by the Court with
respect and finality.
14. CRIMINAL LAW, OFFENSES, COURTS ARE BOUND TO APPLY
GOVERNING LAW AT THE TIME OF COMMISSION OF OFFENSE. The
trial court and the respondent court are bound to apply the governing law at the
time of appellant's commission of the offense for it is a rule that laws are repealed
only by subsequent ones. Indeed, it is the duty of judicial officers to respect and
apply the law as it stands. And until its repeal, respondent court can not be faulted
for applying P.D. 1866 which abrogated the previous statutes adverted to by
petitioner.
15. POLITICAL LAW; CONSTITUTION; BILL OF RIGHTS; CRUEL AND
UNUSUAL PUNISHMENT; PENALTY FOR ILLEGAL POSSESSION OF
FIREARMS, NOT EMBRACED THEREIN. Equally lacking in merit is
appellant's allegation that the penalty for simple illegal possession is
unconstitutional. The penalty for simple possession of firearm, it should be
stressed, ranges from reclusion temporal maximum to reclusion perpetua contrary
to appellant's erroneous averment. The severity of a penalty does not ipso facto
make the same cruel and excessive. "It takes more than merely being harsh,
excessive, out of proportion, or severe for a penalty to be obnoxious to the
Constitution. 'The fact that the punishment authorized by the statute is severe does
not make it cruel and unusual.' (24 C.J.S., 1187-1188). Expressed in other terms, it
has been held that to come under the ban, the punishment must be 'flagrantly and
plainly oppressive,' wholly disproportionate to the nature of the offense as to
shock the moral sense of the community.'" It is well-settled that as far as the
constitutional prohibition goes, it is not so much the extent as the nature of the
punishment that determines whether it is, or is not, cruel and unusual and that
sentences of imprisonment, though perceived to be harsh, are not cruel or unusual
if within statutory limits.
16. ID.; ID.; LAWS ON ILLEGAL POSSESSION OF FIREARMS,
CONSTITUTIONAL. Every law has in its favor the presumption of
75
constitutionality. The burden of proving the invalidity of the statute in question
lies with the appellant which burden, we note, was not convincingly discharged.
To justify nullification of the law, there must be a clear and unequivocal breach of
the Constitution, not a doubtful and argumentative implication, as in this case. In
fact, the constitutionality of P.D. 1866 has been upheld twice by this Court. Just
recently, the Court declared that "the pertinent laws on illegal possession of
firearms [are not] contrary to any provision of the Constitution. . ."
17. REMEDIAL LAW; COURT; NOT CONCERNED WITH THE WISDOM
OR MORALITY OF LAWS. Appellant's grievance on the wisdom of the
prescribed penalty should not be addressed to us. Courts are not concerned with
the wisdom, efficacy or morality of laws. That question falls exclusively within
the province of Congress which enacts them and the Chief Executive who
approves or vetoes them. The only function of the courts, we reiterate, is to
interpret and apply the laws.
18. CRIMINAL LAW; ILLEGAL POSSESSION OF FIREARMS; MINIMUM
PENALTY. With respect to the penalty imposed by the trial court as affirmed
by respondent court (17 years 4 months and 1 day of reclusion temporal as
minimum, to 21 years of reclusion perpetua, as maximum), we reduce the same in
line with the fairly recent case of People v. Lian where the Court en banc
provided that the indeterminate penalty imposable for simple illegal possession of
firearm, without any mitigating or aggravating circumstance, should be within the
range of ten (10) years and one (1) day to twelve (12) years of prision mayor, as
minimum, to eighteen (18) years, eight (8) months and one (1) day to twenty (20)
years of reclusion temporal, as maximum.
DECISION
FRANCISCO, J p:
On October 26, 1992, high-powered firearms with live ammunitions were found
in the possession of petitioner Robin @ Robinhood Padilla, i.e.:
"(1) One .357 Caliber revolver, Smith and Wesson, SN-32919
with six (6) live ammunitions;
"(2) One M-16 Baby Armalite rifle, SN-RP 131120 with four
(4) long and one (1) short magazine with ammunitions;
"(3) One .380 Pietro Beretta, SN-A 35723 Y with clip and
eight (8) ammunitions; and
"(4) Six additional live double action ammunitions of .38
caliber revolver." 1
Petitioner was correspondingly charged on December 3, 1992, before the
Regional Trial Court (RTC) of Angeles City with illegal possession of firearms
and ammunitions under P.D. 1866 2 thru the following Information: 3
"That on or about the 26th day of October, 1992, in the City
of Angeles, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, did then and
there willfully, unlawfully and feloniously have in his
possession and under his custody and control one (1) M-16
Baby Armalite rifle, SN-RP 131120 with four (4) long and
one (1) short magazines with ammunitions, one (1) .357
caliber revolver Smith and Wesson, SN-32919 with six (6)
live ammunitions and one (1) 380 Pietro Beretta, SN-
A35723Y with clip and eight (8) ammunitions, without
having the necessary authority and permit to carry and
possess the same.
ALL CONTRARY TO LAW." 4
The lower court then ordered the arrest of petitioner, 5 but granted his application
for bail. 6 During the arraignment on January 20, 1993, a plea of not guilty was
entered for petitioner after he refused, 7 upon advice of counsel, 8 to make any
plea. 9 Petitioner waived in writing his right to be present in any and all stages of
the case. 10
After trial, Angeles City RTC Judge David Rosete rendered judgment dated April
25, 1994 convicting petitioner of the crime charged and sentenced him to an
"indeterminate penalty from 17 years, 4 months and 1 day of reclusion temporal
as minimum, to 21 years of reclusion perpetua, as maximum". 11 Petitioner filed
his notice of appeal on April 28, 1994. 12 Pending the appeal in the respondent
Court of Appeals, 13 the Solicitor-General, convinced that the conviction shows
strong evidence of guilt, filed on December 2, 1994 a motion to cancel petitioner's
76
bail bond. The resolution of this motion was incorporated in the now assailed
respondent court's decision sustaining petitioner's conviction, 14 the dispositive
portion of which reads:
"WHEREFORE, the foregoing circumstances considered, the
appealed decision is hereby AFFIRMED, and furthermore,
the P200,000.00 bailbond posted by accused-appellant for his
provisional liberty, FGU Insurance Corporation Bond No.
JCR (2) 6523, is hereby cancelled. The Regional Trial Court,
Branch 61, Angeles City, is directed to issue the Order of
Arrest of accused-appellant and thereafter his transmittal to
the National Bureau of Prisons thru the Philippine National
Police where the said accused-appellant shall remain under
confinement pending resolution of his appeal, should he
appeal to the Supreme Court. This shall be immediately
executory. The Regional Trial Court is further directed to
submit a report of compliance herewith.
SO ORDERED. 15
Petitioner received a copy of this decision on July 26, 1995. 16 On August 9, 1995
he filed a "motion for reconsideration (and to recall the warrant of arrest)" 17 but
the same was denied by respondent court in its September 20, 1995 Resolution, 18
copy of which was received by, petitioner on September 27, 1995. The next day,
September 28, petitioner filed the instant petition for review on certiorari with
application for bail 19 followed by two "supplemental petitions" filed by different
counsels, 20 a "second supplemental petition" 21 and an urgent motion for the
separate resolution of his application for bail. Again, the Solicitor-General 22
sought the denial of the application for bail, to which the Court agreed in a
Resolution promulgated on July 31, 1996. 23 The Court also granted the Solicitor-
General's motion to file a consolidated comment on the petitions and thereafter
required the petitioner to file his reply. 24 However, after his vigorous resistance
and success on the intramural of bail (both in the respondent court and this Court)
and thorough exposition of petitioner's guilt in his 55-page Brief in the respondent
court, the Solicitor-General now makes a complete turnabout by filing a
"Manifestation In Lieu Of Comment" praying for petitioner's acquittal. 25
The People's detailed narration of facts, well-supported by evidence on record and
given credence by respondent court, is as follows: 26
"At about 8:00 o'clock in the evening of October 26, 1992,
Enrique Manarang and his compadre Danny Perez were
inside the Manukan sa Highway Restaurant in Sto. Kristo,
Angeles City where they took shelter from the heavy
downpour (pp. 5-6, TSN, February 15, 1993) that had
interrupted their ride on motorcycles (pp. 5-6, ibid.) along
Mac Arthur Highway (ibid). While inside the restaurant,
Manarang noticed a vehicle, a Mitsubishi Pajero, running fast
down the highway prompting him to remark that the vehicle
might get into an accident considering the inclement weather.
(p. 7, Ibid.) In the local vernacular, he said thus: 'Ka bilis na,
mumuran pa naman pota makaaksidente ya.' (p. 7, ibid.). True
enough, immediately after the vehicle had passed the
restaurant, Manarang and Perez heard a screeching sound
produced by the sudden and hard braking of a vehicle running
very fast (pp. 7-8, ibid.) followed by a sickening sound of the
vehicle hitting something (p. 8, ibid.). Danny Cruz, quite sure
of what had happened, remarked 'oy ta na' signifying that
Manarang had been right in his observation (pp. 8-9, ibid).
"Manarang and Cruz went out to investigate and immediately
saw the vehicle occupying the edge or shoulder of the
highway giving it a slight tilt to its side (pp. 9-10, ibid).
Manarang, being a member of both the Spectrum, a civic
group and the Barangay Disaster Coordinating Council,
decided to report the incident to the Philippine National
Police of Angeles City (p. 10, ibid.). He took out his radio and
called the Viper, the radio controller of the Philippine
National Police of Angeles City (p. 10, ibid.). By the time
Manarang completed the call, the vehicle had started to leave
the place of the accident taking the general direction to the
north (p. 11, ibid).
"Manarang went to the location of the accident and found out
that the vehicle had hit somebody (p. 11, ibid).
"He asked Cruz to look after the victim while he went back to
the restaurant, rode on his motorcycle and chased the vehicle
(p. 11, ibid.). During the chase he was able to make out the
plate number of the vehicle as PMA 777 (p. 33, TSN,
February 15, 1993). He called the Viper through the radio
once again (p. 34, ibid.) reporting that a vehicle heading north
77
with plate number PMA 777 was involved in a hit and run
accident (p. 20, TSN, June 8, 1993). The Viper, in the person
of SPO2 Ruby Buan, upon receipt of the second radio call
flashed the message to all units of PNP Angeles City with the
order to apprehend the vehicle (p. 20, ibid.). One of the units
of the PNP Angeles City reached by the alarm was its Patrol
Division at Jake Gonzales Street near the Traffic Division
(pp. 5-7, TSN, February 23, 1993). SPO2 Juan C. Borja III
and SPO2 Emerlito Miranda immediately boarded a mobile
patrol vehicle (Mobile No. 3) and positioned themselves near
the south approach of Abacan bridge since it was the only
passable way going to the north (pp. 8-9, ibid.). It took them
about ten (10) seconds to cover the distance between their
office and the Abacan bridge (p. 9, ibid).
"Another PNP mobile patrol vehicle that responded to the
flash message from SPO2 Buan was Mobile No. 7 of the
Pulongmaragal Detachment which was then conducting patrol
along Don Juico Avenue (pp. 8-9, TSN, March 8, 1993). On
board were SPO Ruben Mercado and SPO3 Tan and SPO2
Odejar (p. 8, ibid.). SPO Ruben Mercado immediately told
SPO3 Tan to proceed to the MacArthur Highway to intercept
the vehicle with plate number PMA 777 (p. 10, ibid).
"In the meantime, Manarang continued to chase the vehicle
which figured in the hit and run incident, even passing
through a flooded portion of the MacArthur Highway two (2)
feet deep in front of the Iglesia ni Kristo church but he could
not catch up with the same vehicle (pp. 11-12, February 15,
1993). When he saw that the car he was chasing went towards
Magalang, he proceeded to Abacan bridge because he knew
Pulongmaragal was not passable (pp. 12-14, ibid.). When he
reached the Abacan bridge, he found Mobile No. 3 and SPO2
Borja and SPO2 Miranda watching all vehicles coming their
way (p. 10, TSN, February 23, 1993). He approached them
and informed them that there was a hit and run incident (p.
10, ibid.). Upon learning that the two police officers already
knew about the incident, Manarang went back to where he
came from (pp. 10-11; ibid.). When Manarang was in front of
Tina's Restaurant, he saw the vehicle that had figured in the
hit and run incident emerging from the corner adjoining
Tina's Restaurant (p. 15, TSN, February 15, 1993). He saw
that the license plate hanging in front of the vehicle bore the
identifying number PMA 777 and he followed it (p. 15, ibid.)
towards the Abacan bridge.
"Soon the vehicle was within sight of SPO2 Borja and SPO2
Miranda of Mobile No. 3 (p. 10, TSN, February 23, 1993).
When the vehicle was about twelve (12) meters away from
their position, the two police officers boarded their Mobile
car, switched on the engine, operated the siren and strobe
light and drove out to intercept the vehicle (p. 11, ibid.). They
cut into the path of the vehicle forcing it to stop (p. 11, ibid).
"SPO2 Borja and SPO2 Miranda alighted from Mobile No. 3
(p. 12, TSN, February 23, 1993). SPO2 Miranda went to the
vehicle with plate number PMA 777 and instructed its driver
to alight (p. 12, ibid.). The driver rolled down the window and
put his head out while raising both his hands. They
recognized the driver as Robin C. Padilla, appellant in this
case (p. 13, ibid.). There was no one else with him inside the
vehicle (p. 24). At that moment, Borja noticed that Manarang
arrived and stopped his motorcycle behind the vehicle of
appellant (p. 14, ibid). SPO2 Miranda told appellant to alight
to which appellant complied. Appellant was wearing a short
leather jacket (p. 16, TSN, March 8, 1993) such that when he
alighted with both his hands raised, a gun (Exhibit 'C') tucked
on the left side of his waist was revealed (p. 15; TSN,
February 23, 1993), its butt protruding (p. 15, ibid.). SPO2
Borja made the move to confiscate the gun but appellant held
the former' s hand alleging that the gun was covered by legal
papers (p. 16, ibid.). SPO2 Borja, however, insisted that if the
gun really was covered by legal papers, it would have to be
shown in the office (p. 16, ibid.). After disarming appellant,
SPO2 Borja told him about the hit and run incident which was
angrily denied by appellant (p. 17, ibid.). By that time, a
crowd had formed at the place (p. 19, ibid.). SPO2 Borja
checked the cylinder of the gun and find six (6) live bullets
inside (p. 20, ibid).
"While SPO2 Borja and appellant were arguing, Mobile No. 7
with SPO Ruben Mercado, SPO3 Tan and SPO2 Odejar on
board arrived (pp. 11-12, TSN, March 8, 1993). As the most
senior police officer in the group, SPO Mercado took over the
matter and informed appellant that he was being arrested for
78
the hit and run incident (p. 13, ibid.). He pointed out to
appellant the fact that the plate number of his vehicle was
dangling and the railing and the hood were dented (p. 12,
ibid.). Appellant, however, arrogantly denied his misdeed
and, instead, played with the crowd by holding their hands
with one hand and pointing to SPO2 Borja with his right hand
saying 'iyan, kinuha ang baril ko' (pp. 13-15, ibid.). Because
appellant's jacket was short, his gesture exposed a long
magazine of an armalite rifle tucked in appellant's back right
pocket (p. 16, ibid.). SPO Mercado saw this and so when
appellant turned around as he was talking and proceeding to
his vehicle, Mercado confiscated the magazine from appellant
(pp. 16-17, ibid.). Suspecting that appellant could also be
carrying a rifle inside the vehicle since he had a magazine,
SPO2 Mercado prevented appellant from going back to his
vehicle by opening himself the door of appellant's vehicle
(16-17, ibid.). He saw a baby armalite rifle (Exhibit D) lying
horizontally at the front by the driver's seat. It had a long
magazine filled with live bullets in a semi-automatic mode
(pp. 17-21, ibid.). He asked appellant for the papers covering
the rifle and appellant answered angrily that they were at his
home (pp. 26-27, ibid.). SPO Mercado modified the arrest of
appellant by including as its ground illegal possession of
firearms (p. 28, ibid.). SPO Mercado then read to appellant
his constitutional rights (pp. 28-29, ibid).
"The police officers brought appellant to the Traffic Division
at Jake Gonzales Boulevard (pp. 31-32, ibid.) where appellant
voluntarily surrendered a third firearm, a pietro berreta
pistol (Exhibit 'L') with a single round in its chamber and a
magazine (pp. 33-35, ibid.) loaded with seven (7) other live
bullets. Appellant also voluntarily surrendered a black bag
containing two additional long magazines and one short
magazine (Exhibits M, N, and O, pp. 36-37, ibid.) After
appellant had been interrogated by the Chief of the Traffic
Division, he was transferred to the Police Investigation
Division at Sto. Rosario Street beside the City Hall Building
where he and the firearms and ammunitions were turned over
to SPO2 Rene Jesus Gregorio (pp. 5-10, TSN, July 13, 1993)
During the investigation, appellant admitted possession of the
firearms stating that he used them for shooting (p. 14, ibid.).
He was not able to produce any permit to carry or
memorandum receipt to cover the three firearms (pp. 16-18,
TSN, January 25, 1994).
"On November 28, 1992, a certification (Exhibit 'F') was
issued by Captain, Senior Inspector Mario Espino, PNP,
Chief, Record Branch of the Firearms and Explosives Office
(pp. 7-8, TSN, March 4, 1993). The Certification stated that
the three firearms confiscated from appellant, an M-16 Baby
armalite rifle SN-RP 1312 80, a .357 caliber revolver Smith
and Wesson SN 32919 and a .380 Pietro Beretta SN-A35720,
were not registered in the name of Robin C. Padilla (p. 6,
ibid.). A second Certification dated December 11, 1992 issued
by Captain Espino stated that the three firearms were not also
registered in the name of Robinhood C. Padilla (p. 10, ibid)."
Petitioner's defenses are as follows: (1) that his arrest was illegal and
consequently, the firearms and ammunitions taken in the course thereof are
inadmissible in evidence under the exclusionary rule; (2) that he is a confidential
agent authorized, under a Mission Order and Memorandum Receipt, to carry the
subject firearms; and (3) that the penalty for simple illegal possession constitutes
excessive and cruel punishment proscribed by the 1987 Constitution. cdtai
After a careful review of the records 27 of this case, the Court is
convinced that petitioner's guilt of the crime charged stands on terra firma,
notwithstanding the Solicitor-General's change of heart.
Anent the first defense, petitioner questions the legality of his arrest.
There is no dispute that no warrant was issued for the arrest of petitioner, but
that per se did not make his apprehension at the Abacan bridge illegal.
Warrantless arrests are sanctioned in the following instances: 28
"Sec. 5. Arrest without warrant; when lawful. A peace
officer or a private person may, without a warrant, arrest a
person:
(a) When, in his presence, the person to be arrested has
committed, is actually committing, or is attempting to commit
an offense;
79
 (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;
(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 temporarily confined while his case
is pending, or has escaped while being transferred from one
confinement to another.
Paragraph (a) requires that the person be arrested (i) after he has committed or
while he is actually committing or is at least attempting to commit an offense, (ii)
in the presence of the arresting officer or private person. 29 Both elements
concurred here, as it has been established that petitioner's vehicle figured in a hit
and run an offense committed in the "presence" of Manarang, a private person,
who then sought to arrest petitioner. It must be stressed at this point that
"presence" does not only require that the arresting person sees the offense, but
also when he "hears the disturbance created thereby AND proceeds at once to the
scene." 30 As testified to by Manarang, he heard the screeching of tires followed
by a thud, saw the sideswiped victim (balut vendor), reported the incident to the
police and thereafter gave chase to the erring Pajero vehicle using his motorcycle
in order to apprehend its driver After having sent a radio report to the PNP for
assistance, Manarang proceeded to the Abacan bridge where he found responding
policemen SPO2 Borja and SPO2 Miranda already positioned near the bridge who
effected the actual arrest of petitioner. 31
Petitioner would nonetheless insist on the illegality of his arrest by arguing that
the policemen who actually arrested him were not at, the scene of the hit and run.
32 We beg to disagree. That Manarang decided to seek the aid of the policemen
(who admittedly were nowhere in the vicinity of the hit and run) in effecting
petitioner's arrest, did not in any way affect the propriety of the apprehension. It
was in fact the most prudent action Manarang could have taken rather than
collaring petitioner by himself, inasmuch as policemen are unquestionably better
trained and well-equipped in effecting an arrest of a suspect (like herein
petitioner) who, in all probability, could have put up a degree of resistance which
an untrained civilian may not be able to contain without endangering his own life.
Moreover, it is a reality that curbing lawlessness gains more success when law
enforcers function in collaboration with private citizens. It is precisely through
this cooperation that the offense herein involved fortunately did not become an
additional entry to the long list of unreported and unsolved crimes.
It is appropriate to state at this juncture that a suspect, like petitioner
herein, cannot defeat the arrest which has been set in motion in a public place
for want of a warrant as the police was confronted by an urgent need to render
aid or take action. 33 The exigent circumstances of hot pursuit, 34 a fleeing
suspect, a moving vehicle, the public place and the raining nighttime all
created a situation in which speed is essential and delay improvident. 35 The
Court acknowledges police authority to make the forcible stop since they had
more than mere "reasonable and articulable" suspicion that the occupant of the
vehicle has been engaged in criminal activity. 36 Moreover, when caught in
flagrante delicto with possession of an unlicensed firearm (Smith & Wesson)
and ammunition (M-16 magazine), petitioner's warrantless arrest was proper as
he was again actually committing another offense (illegal possession of firearm
and ammunitions) and this time in the presence of a peace officer. 37
Besides, the policemen's warrantless arrest of petitioner could likewise
be justified under paragraph (b) as he had in fact just committed an offense.
There was no supervening event or a considerable lapse of time between the hit
and run and the actual apprehension. Moreover, after having stationed
themselves at the Abacan bridge in response to Manarang's report, the
policemen saw for themselves the fast approaching Pajero of petitioner, 38 its
dangling plate number (PMA 777 as reported by Manarang), and the dented
hood and railings thereof. 39 These formed part of the arresting police officer's
personal knowledge of the facts indicating that petitioner's Pajero was indeed
the vehicle involved in the hit and run incident. Verily then, the arresting police
officers acted upon verified personal knowledge and not on unreliable hearsay
information. 40
Furthermore, in accordance with settled jurisprudence, any objection,
defect or irregularity attending an arrest must be made before the accused enters
his plea. 41 Petitioner's belated challenge thereto aside from his failure to quash
the information, his participation in the trial and by presenting his evidence,
placed him in estoppel to assail the legality of his arrest. 42 Likewise, by
applying for bail, petitioner patently waived such irregularities and defects. 43
We now go to the firearms and ammunitions seized from petitioner
without a search warrant, the admissibility in evidence of which, we uphold.
The five (5) well-settled instances when a warrantless search and
seizure of property is valid, 44 are as follows:
1. warrantless search incidental to a lawful arrest recognized
under Section 12, Rule 126 of the Rules of Court 45
and by prevailing jurisprudence; 46
80
 2. Seizure of evidence in "plain view", the elements of which
are: 47
(a). a prior valid intrusion based on the valid
warrantless arrest in which the police are
legally present in the pursuit of their official
duties;
(b). the evidence was inadvertently discovered by the
police who had the right to be where they
are;
(c). the evidence must be immediately apparent, and
(d). "plain view" justified mere seizure of evidence
without further search. 48
3. Search of a moving vehicle. 49 Highly regulated by the
government, the vehicle's inherent mobility reduces
expectation of privacy especially when its transit in
public thoroughfares furnishes a highly reasonable
suspicion amounting to probable cause that the
occupant committed a criminal activity. 50
4. consented warrantless search, and
5. customs search.
In conformity with respondent court's observation, it indeed appears that the
authorities stumbled upon petitioner s firearms and ammunitions without even
undertaking any active search which, as it is commonly understood, is a prying
into hidden places for that which is concealed. 51 The seizure of the Smith &
Wesson revolver and an M-16 rifle magazine was justified for they came within
"plain view" of the policemen who inadvertently discovered the revolver and
magazine tucked in petitioner's waist and back pocket respectively, when he
raised his hands after alighting from his Pajero. The same justification applies to
the confiscation of the M-16 armalite rifle which was immediately apparent to the
policemen as they took a casual glance at the Pajero and saw said rifle lying
horizontally near the driver's seat. 52 Thus it has been held that:
"(W)hen in pursuing an illegal action or in the commission of
a criminal offense, the . . . 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 person and the
taking of the corpus delicti. 53
"Objects whose possession are prohibited by law
inadvertently found in plain view are subject to seizure even
without a warrant." 54
With respect to the Berreta pistol and a black bag containing assorted magazines,
petitioner voluntarily surrendered them to the police. 55 This latter gesture of
petitioner indicated a waiver of his right against the alleged search and seizure, 56
and that his failure to quash the information estopped him from assailing any
purported defect. 57
Even assuming. that the firearms and ammunitions were products of an active
search done by the authorities on the person and vehicle of petitioner, their seizure
without a search warrant nonetheless can still be justified under a search
incidental to a lawful arrest (first instance). Once the lawful arrest was effected,
the police may undertake a protective search 58 of the passenger compartment and
containers in the vehicle 59 which are within petitioner's grabbing distance
regardless of the nature of the offense. 60 This satisfied the two-tiered test of an
incidental search: (i) the item to be searched (vehicle) was within the arrestee's
custody or area of immediate control 61 and (ii) the search was contemporaneous
with the arrest. 62 The products of that search are admissible evidence not
excluded by the exclusionary rule. Another justification is a search of a moving
vehicle (third instance). In connection therewith, a warrantless search is
constitutionally permissible when, as in this case, the officers conducting the
search have reasonable or probable cause to believe, before the search, that either
the motorist is a law-offender (like herein petitioner with respect to the hit and
run) or the contents or cargo of the vehicle are or have been instruments or the
subject matter or the proceeds of some criminal offense. 63
Anent his second defense, petitioner contends that he could not be
convicted of violating P.D. 1866 because he is an appointed civilian agent
authorized to possess and carry the subject firearms and ammunition as
evidenced by a Mission Order 64 and Memorandum Receipt duly issued by
PNP Supt. Rodialo Gumtang, the deputy commander of Task Force Aguila,
Lianga, Surigao del Sur. The contention lacks merit.
81
 In crimes involving illegal possession of firearm, two requisites must
be established, viz.: (1) the existence of the subject firearm and, (2) the fact that
the accused who owned or possessed the firearm does not have the
corresponding license or permit to possess. 65 The first element is beyond
dispute as the subject firearms and ammunitions 66 were seized from
petitioner's possession via a valid warrantless search, identified and offered in
evidence during trial. As to the second element, the same was convincingly
proven by the prosecution. Indeed, petitioner's purported Mission Order and
Memorandum Receipt are inferior in the face of the more formidable evidence
for the prosecution as our meticulous review of the records reveals that the
Mission Order and Memorandum Receipt were mere afterthoughts contrived
and issued under suspicious circumstances. On this score, we lift from
respondent court's incisive observation. Thus:
"Appellant's contention is predicated on the assumption that
the Memorandum Receipts and Mission Order were issued
before the subject firearms were seized and confiscated from
him by the police officers in Angeles City. That is not so. The
evidence adduced indicate that the Memorandum Receipts
and Mission Order were prepared and executed long after
appellant had been apprehended on October 26, 1992.
"Appellant, when apprehended, could not show any document
as proof of his authority to possess and carry the subject
firearms. During the preliminary investigation of the charge
against him for illegal possession of firearms and
ammunitions he could not, despite the ample time given him,
present any proper document showing his authority. If he had,
in actuality, the Memorandum Receipts and Missions Order,
he could have produced those documents easily, if not at the
time of apprehension, at least during the preliminary
investigation. But neither appellant nor his counsel inform the
prosecutor that appellant is authorized to possess and carry
the subject firearms under Memorandum Receipt and Mission
Order. At the initial presentation of his evidence in court,
appellant could have produced these documents to belie the
charged against him. Appellant did not. He did not even take
the witness stand to explain his possession of the subject
firearms.
"Even in appellant's Demurrer to Evidence filed after the
prosecution rested contain no allegation of a Memorandum
Receipts and Mission Order authorizing appellant to possess
and carry the subject firearms.
"At the initial presentation of appellant's evidence, the witness
cited was one James Neneng to whom a subpoena was issued.
Superintendent Gumtang was not even mentioned. James
Neneng appeared in court but was not presented by the
defense. Subsequent hearings were reset until the defense
found Superintendent Gumtang who appeared in court
without subpoena on January 13, 1994" 67
The Court is baffled why petitioner failed to produce and present the Mission
Order and Memorandum Receipt if they were really issued and existing before his
apprehension. Petitioner's alternative excuses that the subject firearms were
intended for theatrical purposes, or that they were owned by the Presidential
Security Group, or that his Mission Order and Memorandum Receipt were left at
home, further compound their irregularity. As to be reasonably expected, an
accused claiming innocence, like herein petitioner, would grab the earliest
opportunity to present the Mission Order and Memorandum Receipt in question
and save himself from the long and agonizing public trial and spare him from
proffering inconsistent excuses. In fact, the Mission Order itself, as well as the
Letter-Directive of the AFP Chief of Staff, is explicit in providing that: cdtai
"VIII. c. When a Mission Order is requested for verification
by enforcement units/personnel such as PNP, Military
Brigade and other Military Police Units of AFP, the Mission
Order should be shown without resentment to avoid
embarrassment and/or misunderstanding.
"IX. d. Implicit to this Mission Order is the injunction that the
confidential instruction will be carried out through all legal
means and do not cover an actuation in violation of laws. In
the latter event, this Mission Order is rendered inoperative in
respect to such violation." 68
which directive petitioner failed to heed without cogent explanation.
The authenticity and validity of the Mission Order and Memorandum Receipt,
moreover, were ably controverted. Witness for the prosecution Police Supt.
Durendes denied under oath his signature on the dorsal side of the Mission Order
and declared further that he did not authorize anyone to sign in his behalf. 69 His
surname thereon, we note, was glaringly misspelled as "Durembes." 70 In
82
addition, only Unit Commanders and Chief of Offices have the authority to issue
Mission Orders and Memorandum Receipts under the Guidelines on the Issuance
of Mos, MRs, & PCFORs. 71 PNP Supt. Rodialo Gumtang who issued petitioner's
Mission Order and Memorandum Receipt is neither a Unit Commander nor the
Chief of Office, but a mere deputy commander. Having emanated from an
unauthorized source, petitioner's Mission Order and Memorandum Receipt are
infirm and lacking in force and effect. Besides, the Mission Order covers "Recom
1-12-Baguio City." 72 areas outside Supt. Gumtang's area of responsibility
thereby needing prior approval "by next higher Headquarters" 73 which is absent
in this case. The Memorandum Receipt is also unsupported by a certification as
required by the March 5, 1988 Memorandum of the Secretary of Defense which
pertinently provides that:
"No memorandum receipt shall be issued for a CCS firearms
without corresponding certification from the corresponding
Responsible Supply Officer of the appropriate AFP unit that
such firearm has been officially taken up in that unit's
property book, and that report of such action has been
reported to higher AFP authority."
Had petitioner's Memorandum Receipt been authentic, we see no reason why he
cannot present the corresponding certification as well.
What is even more peculiar is that petitioner's name, as certified to by the Director
for Personnel of the PNP, does not even appear in the Plantilla of Non-Uniform
Personnel or in the list of Civilian Agents or Employees of the PNP which could
justify the issuance of a Mission Order, a fact admitted by petitioner's counsel. 74
The implementing rules of P.D. 1866 issued by the then PC-INP Chief and
Director-General Lt. Gen. Fidel V. Ramos are clear and unambiguous, thus:
"No Mission Order shall be issued to any civilian agent
authorizing the same to carry firearms outside residence
unless he/she is included in the regular plantilla of the
government agency involved in law enforcement and is
receiving regular compensation for the services he/she is
rendering in the agency. Further, the civilian agent must be
included in a special law enforcement/police/intelligence
project proposal or special project which specifically required
the use of firearms(s) to insure its accomplishment and that
the project is duly approved at the PC Regional Command
level or its equivalent level in other major services of the
AFP, INP and-NBI, or at higher levels of command." 75
Circular No. 1, dated January 6, 1986, of the then Ministry of Justice likewise
provides as follows:
"If mission orders are issued to civilians (not members of the
uniformed service), they must be civilian agents included in
the regular plantilla of the government agency involved in law
enforcement and are receiving regular compensation for the
service they are rendering."
That petitioner's Mission Order and Memorandum Receipt were fabricated pieces
of evidence is accentuated all the more by the testimony and certification of the
Chief of the Records Branch of the firearms and Explosives Office of the PNP
declaring that petitioner's confiscated firearms are not licensed or registered in the
name of the petitioner. 76 Thus:
"Q. In all these files that you have just mentioned Mr.
Witness, what did you find, if any?
"A. I found that a certain Robin C Padilla is a licensed
registered owner of one 9 mm pistol, Smith and
Wesson with Serial No. TCT 8214 and the following
firearms being asked whether it is registered or not,
I did not find any records, the M-16 and the caliber
.357 and the caliber .380 but there is a firearm with
the same serial number which is the same as that
licensed and/or registered in the name of one Albert
Villanueva Fallorina.
"Q. So in short, the only licensed firearms in the name of
accused Robin C. Padilla is a pistol, Smith and
Wesson, caliber 9 mm with Serial No. TCT 8214?
"A. Yes, sir.
"Q. And the firearms that were the subject of this case are not
listed in the names of the accused in this case?
"A. Yes, sir. 77
xxx xxx xxx
83
And the certification which provides as follows:
Republic of the Philippines
Department of the Interior and Local Government
GENERAL HEADQUARTERS PHILIPPINE NATIONAL
POLICE
FIREARMS AND EXPLOSIVES OFFICE
Camp Crame, Quezon City
"PNPFEO5 November 28, 1992
"C E R T I F I C A T I O N
"TO WHOM IT MAY CONCERN:
"THIS IS TO CERTIFY that Robin C. Padilla of 59 Labo St.,
Quezon City is a licensed/registered holder of Pistol Smith
and Wesson Cal 9mm with serial number TCT8214 covered
by License No. RL M76C4476687.
"Further certify that the following firearms are not registered
with this Office per verification from available records on file
this Office as of this date:
M16 Baby Armalite SN-RP131120
Revolver Cal 357 SN-3219
Pistol Cal 380 Pietro Beretta SN-35723
"However, we have on file one Pistol Cal 380, Beretta with
serial number 35723Y, licensed/registered to one Albert
Villanueva Fallorina of 29 San Juan St., Capitol Pasig, MM
under Re-Registered License.
"This certification is issued pursuant to Subpoena from City
of Angeles.
"FOR THE CHIEF, FEO:
(Sgd.)
JOSE
MARIO
M.
ESPINO
Sr.
Inspector,
PNP
Chief,
Records
Branch"
78
In several occasions, the Court has ruled that either the testimony of a
representative of, or a certification from, the. PNP Firearms and Explosives Office
(FEO) attesting that a person is not a licensee of any firearm would suffice to
prove beyond reasonable doubt the second element of illegal possession of
firearm. 79 In People vs. Tobias, 80 we reiterated that such certification is
sufficient to show that a person has in fact no license. From the foregoing
discussion, the fact that petitioner does not have the license or permit to possess
was overwhelmingly proven by the prosecution. The certification may even be
dispensed with in the light of the evidence 81 that an M-16 rifle and any short
firearm higher than a .38 caliber pistol, akin to the confiscated firearms, cannot be
licensed to a civilian, 82 as in the case of petitioner The Court, therefore,
entertains no doubt in affirming petitioner's conviction especially as we find no
plausible reason and none was presented, to depart from the factual findings of
both the trial court and respondent court which, as a rule, are accorded by the
Court with respect and finality. 83
Anent his third defense, petitioner faults respondent court "in applying
P.D. 1866 in a democratic ambience (sic) and a non subversive context" and
84
 adds that respondent court should have applied instead the previous laws on
illegal possession of firearms since the reason for the penalty imposed under
P.D. 1866 no longer exists. 84 He stresses that the penalty of 17 years and 4
months to 21 years for simple illegal possession of firearm is cruel and
excessive in contravention of the Constitution. 85
The contentions do not merit serious consideration. The trial court and
the respondent court are bound to apply the governing law at the time of
appellant's commission of the offense for it is a rule that laws are repealed only
by subsequent ones. 86 Indeed, it is the duty of judicial officers to respect and
apply the law as it stands. 87 And until its repeal, respondent court can not be
faulted for applying P.D. 1866 which abrogated the previous statutes adverted
to by petitioner.
Equally lacking in merit is appellant's allegation that the penalty for
simple illegal possession is unconstitutional. The penalty for simple possession
of firearm, it should be stressed, ranges from reclusion temporal maximum to
reclusion perpetua contrary to appellant's erroneous averment. The severity of a
penalty does not ipso facto make the same cruel and excessive.
"It takes more than merely being harsh, excessive, out of
proportion, or severe for a penalty to be obnoxious to the
Constitution. 'The fact that the punishment authorized by the
statute is severe does not make it cruel and unusual' (24
C.J.S., 1187-1188). Expressed in other terms, it has been held
that to come under the ban, the punishment must be
'flagrantly and plainly oppressive', 'wholly disproportionate to
the nature of the offense as to shock the moral sense of the
community." 88
It is well-settled that as far as the constitutional prohibition goes, it is not so much
the extent as the nature of the punishment that determines whether it is, or is not,
cruel and unusual and that sentences of imprisonment, though perceived to be
harsh, are not cruel or unusual if within statutory limits. 89
Moreover, every law has in its favor the presumption of constitutionality. The
burden of proving the invalidity of the statute in question lies with the appellant
which burden, we note, was not convincingly discharged. To justify nullification
of the law, there must be a clear and unequivocal breach of the Constitution, not a
doubtful and argumentative implication, 90 as in this case. In fact, the
constitutionality of P.D. 1866 has been upheld twice by this Court. 91 Just
recently, the Court declared that "the pertinent laws on illegal possession of
firearms [are not] contrary to any provision of the Constitution. . . " 92 Appellant's
grievance on the wisdom of the prescribed penalty should not be addressed to us.
Courts are not concerned with the wisdom, efficacy or morality of laws. That
question falls exclusively within the province of Congress which enacts them and
the Chief Executive who approves or vetoes them. The only function of the courts,
we reiterate, is to interpret and apply the laws.
With respect to the penalty imposed by the trial court as affirmed by
respondent court (17 years 4 months and 1 day of reclusion temporal, as
minimum, to 21 years of reclusion perpetua, as maximum), we reduce the same
in line with the fairly recent case of People v. Lian 93 where the Court en banc
provided that the indeterminate penalty imposable for simple illegal possession
of firearm, without any mitigating or aggravating circumstance, should be
within the range of ten (10) years and one (1) day to twelve years (12) of
prision mayor, as minimum, to eighteen (18) years, eight (8) months and one (1
) day to twenty (20) of reclusion temporal, as maximum. This is discernible
from the following explanation by the Court:
"In the case at bar, no mitigating or aggravating
circumstances have been alleged or proved, In accordance
with the doctrine regarding special laws explained in People
v. Simon, 94 although Presidential Decree No. 1866 is a
special law, the penalties therein were taken from the Revised
Penal Code, hence the rules in said Code for graduating by
degrees or determining the proper period should be applied
Consequently, the penalty for the offense of simple illegal
possession of firearm is the medium period of the complex
penalty in said Section 1, that is, 18 years, 8 months and 1 day
to 20 years.
"This penalty, being that which is to be actually imposed in
accordance with the rules therefor and not merely imposable
as a general prescription under the law, shall be the maximum
of the range of the indeterminate sentence. The minimum
thereof shall be taken, as aforesaid, from any period of the
penalty next lower in degree, which is, prision mayor in its
maximum period to reclusion temporal in its medium period.
95
WHEREFORE, premises considered, the decision of the Court of Appeals
sustaining petitioner's conviction by the lower court of the crime of simple illegal
possession of firearms and ammunitions is AFFIRMED EXCEPT that petitioner's
85
indeterminate penalty MODIFIED to "ten (10) years and one (1) day, as FIRST DIVISION
minimum, to eighteen (18) years, eight (8) months and one (1) day, as maximum.
cdtai
[G.R. No. 136292. January 15, 2002.]
SO ORDERED.
RUDY CABALLES y TAIO, petitioner, vs. COURT OF
Narvasa, C .J ., Davide, Jr., Melo and Panganiban, JJ ., concur. APPEALS and PEOPLE OF THE PHILIPPINES,
respondents.
||| (Padilla v. Court of Appeals, G.R. No. 121917, March 12, 1997)
De Jesus Orioste & Lim for petitioner.

The Solicitor General for respondents.

SYNOPSIS

The Regional Trial Court of Santa Cruz, Laguna convicted petitioner Rudy
Caballes of the crime of theft for stealing aluminum cable conductors worth
P55,244.45 belonging to the National Power Corporation. Accordingly, it
sentenced petitioner to a prison term and ordered him to indemnify private
complainant. On appeal, the Court of Appeals affirmed the judgment of
conviction but deleted the award of damages and modified the penalty imposed.

Hence, this appeal by certiorari. Petitioner questioned the validity of the

warrantless search and seizure made by the police officers, and the admissibility
of the evidence obtained by virtue thereof.

The searches without warrant of moving vehicles is allowed provided such

searches are made at borders or 'constructive borders', like checkpoints. The mere
mobility of these vehicles, however, does not give the police officers unlimited
discretion to conduct indiscriminate searches without warrants if made within the
interior of the territory and in the absence of probable cause. In the case at bar, the
vehicle of the petitioner was flagged down because the police officers who were
on routine patrol became suspicious when they saw that the back of the vehicle
was covered with kakawati leaves which, according to them, was unusual and
uncommon. The Court held that the fact that the vehicle looked suspicious simply
because it is not common for such to be covered with kakawati leaves does not
constitute "probable cause'' as would justify the conduct of a search without a
warrant. In addition, the police authorities did not claim to have received any
confidential report or tipped information that petitioner was carrying stolen cable
wires in his vehicle, which could otherwise have sustained their suspicion. Our

86
jurisprudence is replete with cases where tipped information has become a
sufficient probable cause to effect a warrantless search and seizure. Unfortunately,
none exists in this case. Furthermore, it cannot be said that the cable wires found
in petitioner's vehicle were in plain view, making its warrantless seizure valid. It
was clear from the records that the cable wires were not exposed to sight because
they were placed in sacks and covered by kakawati leaves. The police officers
even have to ask petitioner what was loaded in his vehicle. Moreover, it was not
established by clear and positive proof that the petitioner consented to the search
or intentionally surrendered his right against unreasonable search. Thus, the
articles seized from petitioner could not be used as evidence against him. For lack
of evidence to establish his guilt, the Court acquitted petitioner of the crime
charged.
SYLLABUS
1. CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHT AGAINST
UNREASONABLE SEARCHES AND SEIZURES; EXCLUSIONARY RULE;
BARS ADMISSION OF EVIDENCE OBTAINED IN VIOLATION OF THE
RIGHT; EXCEPTIONS. Enshrined in our Constitution is the inviolable right
of the people to be secure in their persons and properties against unreasonable
searches and seizures, as defined under Section 2, Article III thereof. The
exclusionary rule under Section 3(2), Article III of the Constitution bars the
admission of evidence obtained in violation of such right. The constitutional
proscription against warrantless searches and seizures is not absolute but admits of
certain exceptions, namely: (1) warrantless search incidental to a lawful arrest
recognized under Section 12, Rule 126 of the Rules of Court and by prevailing
jurisprudence; (2) seizure of evidence in plain view; (3) search of moving
vehicles; (4) consented warrantless search; (5) customs search; (6) stop and frisk
situations (Terry search); and (7) exigent and emergency circumstances.
2. REMEDIAL LAW; CRIMINAL PROCEDURE; WARRANTLESS SEARCH
AND SEIZURE; REASONABLENESS OR UNREASONABLENESS OF
SEARCH OR SEIZURE IS PURELY A JUDICIAL QUESTION; CASE AT
BAR. In cases where warrant is necessary, the steps prescribed by the
Constitution and reiterated in the Rules of Court must be complied with. In the
exceptional events where warrant is not necessary to effect a valid search or
seizure, or when the latter cannot be performed except without a warrant, what
constitutes a reasonable or unreasonable 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.
3. ID.; ID.; WARRANTLESS SEARCH OF MOVING VEHICLES; ALLOWED
PROVIDED THE SAME WAS MADE AT CONSTRUCTIVE BORDERS.
Highly regulated by the government, the vehicle's inherent mobility reduces
expectation of privacy especially when its transit in public thoroughfares furnishes
a highly reasonable suspicion amounting to probable cause that the occupant
committed a criminal activity. Thus, the rules governing search and seizure have
over the years been steadily liberalized whenever a moving vehicle is the object of
the search on the basis of practicality. This is so considering that before a warrant
could be obtained, the place, things and persons to be searched must be described
to the satisfaction of the issuing judge a requirement which borders on the
impossible in the case of smuggling effected by the use of a moving vehicle that
can transport contraband from one place to another with impunity. We might add
that a warrantless search of a moving vehicle is justified on the ground that it is
not practicable to secure a warrant because the vehicle can be quickly moved out
of the locality or jurisdiction in which the warrant must be sought. Searches
without warrant of automobiles is also allowed for the purpose of preventing
violations of smuggling or immigration laws, provided such searches are made at
borders or 'constructive borders' like checkpoints near the boundary lines of the
State. ACaDTH
4. ID.; ID.; ID.; REQUIRES PROBABLE CAUSE; EXISTENCE OF
PROBABLE CAUSE NOT DETERMINED BY FIXED FORMULA BUT IS
RESOLVED ACCORDING TO THE FACTS OF EACH CASE. The mere
mobility of these vehicles, however, does not give the police officers unlimited
discretion to conduct indiscriminate searches without warrants if made within the
interior of the territory and in the absence of probable cause. Still and all, the
important thing is that there was probable cause to conduct the warrantless search,
which must still be present in such a case. Although the term eludes exact
definition, probable cause signifies a reasonable ground of suspicion supported by
circumstances sufficiently strong in themselves to warrant a cautious man's belief
that the person accused is guilty of the offense with which he is charged; or the
existence of such facts and circumstances which could lead a reasonably discreet
and prudent man to believe that an offense has been committed and that the items,
articles or objects sought in connection with said offense or subject to seizure and
destruction by law is in the place to be searched. The required probable cause that
will justify a warrantless search and seizure is not determined by a fixed formula
but is resolved according to the facts of each case.
87
5. ID.; ID.; ID.; "STOP-AND-SEARCH" AT POLICE CHECKPOINTS; NOT
ILLEGAL PER SE; ROUTINE INSPECTIONS; NOT VIOLATIVE OF RIGHT
AGAINST UNREASONABLE SEARCHES; LIMITATIONS; CASE AT BAR.
One such form of search of moving vehicles is the "stop-and-search" without
warrant at military or police checkpoints which has been declared to be not illegal
per se, for as long as it is warranted by the exigencies of public order and
conducted in a way least intrusive to motorists. A checkpoint may either be a mere
routine inspection or it may involve an extensive search. Routine inspections are
not regarded as violative of an individual's right against unreasonable search. The
search which is normally permissible in this instance is limited to the following
instances: (1) where the officer merely draws aside the curtain of a vacant vehicle
which is parked on the public fair grounds; (2) simply looks into a vehicle; (3)
flashes a light therein without opening the car's doors; (4) where the occupants are
not subjected to a physical or body search; (5) where the inspection of the vehicles
is limited to a visual search or visual inspection; and (6) where the routine check
is conducted in a fixed area. None of the foregoing circumstances is obtaining in
the case at bar. The police officers did not merely conduct a visual search or
visual inspection of herein petitioner's vehicle. They had to reach inside the
vehicle, lift the kakawati leaves and look inside the sacks before they were able to
see the cable wires. It cannot be considered a simple routine check.
6. ID.; ID.; ID.; EXTENSIVE CHECK OF VEHICLE, WHEN PERMISSIBLE.
In the case of United States vs. Pierre, the Court held that the physical
intrusion of a part of the body of an agent into the vehicle goes beyond the area
protected by the Fourth Amendment, to wit: "The Agent . . . stuck his head
through the driver's side window. The agent thus effected a physical intrusion into
the vehicle . . . [W]e are aware of no case holding that an officer did not conduct a
search when he physically intruded part of his body into a space in which the
suspect had a reasonable expectation of privacy. [The] Agent['s] . . . physical
intrusion allowed him to see and to smell things he could not see or smell from
outside the vehicle . . . In doing so, his inspection went beyond that portion of the
vehicle which may be viewed from outside the vehicle by either inquisitive
passersby or diligent police officers, and into the area protected by the Fourth
amendment, just as much as if he had stuck his head inside the open window of a
home." On the other hand, when a vehicle is stopped and subjected to an extensive
search, such a warrantless search would be constitutionally permissible only if the
officers conducting the search have reasonable or probable cause to believe,
before the search, that either the motorist is a law-offender or they will find the
instrumentality or evidence pertaining to a crime in the vehicle to be searched.
This Court has in the past found probable cause to conduct without a judicial
warrant an extensive search of moving vehicles in situations where (1) there had
emanated from a package the distinctive smell of marijuana; (2) agents of the
Narcotics Command ("Narcom") of the Philippine National Police ("PNP") had
received a confidential report from informers that a sizeable volume of marijuana
would be transported along the route where the search was conducted; (3) Narcom
agents had received information that a Caucasian coming from Sagada, Mountain
Province, had in his possession prohibited drugs and when the Narcom agents
confronted the accused Caucasian, because of a conspicuous bulge in his
waistline, he failed to present his passport and other identification papers when
requested to do so; (4) Narcom agents had received confidential information that a
woman having the same physical appearance as that of the accused would be
transporting marijuana; (5) the accused who were riding a jeepney were stopped
and searched by policemen who had earlier received confidential reports that said
accused would transport a large quantity of marijuana; and (6) where the moving
vehicle was stopped and searched on the basis of intelligence information and
clandestine reports by a deep penetration agent or spy one who participated in
the drug smuggling activities of the syndicate to which the accused belonged
that said accused were bringing prohibited drugs into the country.
7. ID.; ID.; ID.; FACT THAT VEHICLE LOOKS SUSPICIOUS DOES NOT
CONSTITUTE PROBABLE CAUSE. In the case at bar, the vehicle of the
petitioner was flagged down because the police officers who were on routine
patrol became suspicious when they saw that the back of the vehicle was covered
with kakawati leaves which, according to them, was unusual and uncommon. We
hold that the fact that the vehicle looked suspicious simply because it is not
common for such to be covered with kakawati leaves does not constitute
"probable cause" as would justify the conduct of a search without a warrant.
8. ID.; ID.; ID.; TIPPED INFORMATION; A SUFFICIENT CAUSE TO
EFFECT WARRANTLESS SEARCH AND SEIZURE. In People vs. Chua Ho
San, we held that the fact that the watercraft used by the accused was different in
appearance from the usual fishing boats that commonly cruise over the Bacnotan
seas coupled with the suspicious behavior of the accused when he attempted to
flee from the police authorities do not sufficiently establish probable cause. In
addition, the police authorities do not claim to have received any confidential
report or tipped information that petitioner was carrying stolen cable wires in his
vehicle which could otherwise have sustained their suspicion. Our jurisprudence is
replete with cases where tipped information has become a sufficient probable
cause to effect a warrantless search and seizure. Unfortunately, none exists in this
case.
9. ID.; ID.; ID.; PLAIN VIEW DOCTRINE; OBJECT ITSELF IS PLAINLY
EXPOSED TO SIGHT; CASE AT BAR. It cannot likewise be said that the
88
cable wires found in petitioner's vehicle were in plain view, making its
warrantless seizure valid. Jurisprudence is to the effect that an object is in plain
view if the object itself is plainly exposed to sight. 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. 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. 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. It
is clear from the records of this case that the cable wires were not exposed to sight
because they were placed in sacks and covered with leaves. The articles were
neither transparent nor immediately apparent to the police authorities. They had
no clue as to what was hidden underneath the leaves and branches. As a matter of
fact, they had to ask petitioner what was loaded in his vehicle. In such a case, it
has been held that the object is not in plain view which could have justified mere
seizure of the articles without further search.
10. ID.; ID.; ID.; CONSENTED WARRANTLESS SEARCHES AND SEIZURE;
CONSENT MUST BE VOLUNTARY AND MUST BE SHOWN BY CLEAR
AND CONVINCING EVIDENCE; BURDEN OF PROOF LIES ON THE
STATE. Doubtless, the constitutional immunity against unreasonable searches
and seizures is a personal right which may be waived. The consent must be
voluntary in order to validate an otherwise illegal detention and search, i.e., the
consent is unequivocal, specific, and intelligently given, uncontaminated by any
duress or coercion. Hence, consent to a search is not to be lightly inferred, but
must be shown by clear and convincing evidence. The question whether a consent
to a search was in fact voluntary is a question of fact to be determined from the
totality of all the circumstances. Relevant to this determination are the following
characteristics of the person giving consent and the environment in which consent
is given: (1) the age of the defendant; (2) whether he was in a public or secluded
location; (3) whether he objected to the search or passively looked on; (4) the
education and intelligence of the defendant; (5) the presence of coercive police
procedures; (6) the defendant's belief that no incriminating evidence will be
found; (7) the nature of the police questioning; (8) the environment in which the
questioning took place; and (9) the possibly vulnerable subjective state of the
person consenting. It is the State which has the burden of proving, by clear and
positive testimony, that the necessary consent was obtained and that it was freely
and voluntarily given. This Court is not unmindful of cases upholding the validity
of consented warrantless searches and seizure. But in these cases, the police
officers' request to search personnel effects was orally articulated to the accused
and in such language that left no room for doubt that the latter fully understood
what was requested. In some instance, the accused even verbally replied to the
request demonstrating that he also understood the nature and consequences of
such request.
11. ID.; ID.; ID.; ID.; CASES UPHOLDING VALIDITY THEREOF, CITED.
In Asuncion vs. Court of Appeals, the apprehending officers sought the permission
of petitioner to search the car, to which the latter agreed. Petitioner therein himself
freely gave his consent to said search. In People vs. Lacerna, the appellants who
were riding in a taxi were stopped by two policemen who asked permission to
search the vehicle and the appellants readily agreed. In upholding the validity of
the consented search, the Court held that appellant himself who was "urbanized in
mannerism and speech expressly said that he was consenting to the search as he
allegedly had nothing to hide and had done nothing wrong. In People vs. Cuizon,
the accused admitted that they signed a written permission stating that they freely
consented to the search of their luggage by the NBI agents to determine if they
were carrying shabu. In People vs. Montilla, it was held that the accused
spontaneously performed affirmative acts of volition by himself opening the bag
without being forced or intimidated to do so, which acts should properly be
construed as a clear waiver of his right. In People vs. Omaweng, the police
officers asked the accused if they could see the contents of his bag to which the
accused said "you can see the contents but those are only clothings." Then the
policemen asked if they could open and see it, and accused answered "you can see
it." The Court said there was a valid consented search. ScAaHE
12. ID.; ID.; ID.; ID.; WAIVER OF CONSTITUTIONAL GUARANTEE
AGAINST OBTRUSIVE SEARCHES; REQUISITES; CONSENT GIVEN
UNDER COERCIVE CIRCUMSTANCES IS NO CONSENT WITHIN THE
CONSTITUTIONAL GUARANTEE; CASE AT BAR. In case of consented
searches or waiver of the constitutional guarantee against obtrusive searches, it is
fundamental that to constitute a waiver, it must first appear that (1) the right
exists; (2) that the person involved had knowledge, either actual or constructive,
of the existence of such right, and (3) the said person had an actual intention to
relinquish the right. In the case at bar, the evidence is lacking that the petitioner
intentionally surrendered his right against unreasonable searches. The manner by
which the two police officers allegedly obtained the consent of petitioner for them
to conduct the search leaves much to be desired. When petitioner's vehicle was
flagged down, Sgt. Noceja approached petitioner and "told him I will look at the
contents of his vehicle and he answered in the positive." We are hard put to
believe that by uttering those words, the police officers were asking or requesting
for permission that they be allowed to search the vehicle of petitioner. For all
intents and purposes, they were informing, nay, imposing upon herein petitioner
that they will search his vehicle. The "consent" given under intimidating or
89
coercive circumstances is no consent within the purview of the constitutional
guaranty.
13. ID.; ID.; ID.; ID.; CONSENT OF ACCUSED TO BE SEARCHED MUST
BE ESTABLISHED BY CLEAR AND POSITIVE PROOF. In addition, in
cases where this Court upheld the validity of consented search, it will be noted
that the police authorities expressly asked, in no uncertain terms, for the consent
of the accused to be searched. And the consent of the accused was established by
clear and positive proof. In the case of herein petitioner, the statements of the
police officers were not asking for his consent; they were declaring to him that
they will look inside his vehicle. Besides, it is doubtful whether permission was
actually requested and granted because when Sgt. Noceja was asked during his
direct examination what he did when the vehicle of petitioner stopped, he
answered that he removed the cover of the vehicle and saw the aluminum wires. It
was only after he was asked a clarificatory question that he added that he told
petitioner he will inspect the vehicle. To our mind, this was more of an
afterthought. Likewise, when Pat. de Castro was asked twice in his direct
examination what they did when they stopped the jeepney, his consistent answer
was that they searched the vehicle. He never testified that he asked petitioner for
permission to conduct the search.
14. ID.; ID.; ID.; ID.; FAILURE OF ACCUSED TO OBJECT NOT
CONSTRUED AS IMPLIED ACQUIESCENCE TO THE WARRANTLESS
SEARCH. Neither can petitioner's passive submission be construed as an
implied acquiescence to the warrantless search. In People vs. Barros, appellant
Barros, who was carrying a carton box, boarded a bus where two policemen were
riding. The policemen inspected the carton and found marijuana inside. When
asked who owned the box, appellant denied ownership of the box and failed to
object to the search. The Court there struck down the warrantless search as illegal
and held that the accused is not to be presumed to have waived the unlawful
search conducted simply because he failed to object, citing the ruling in the case
of People vs. Burgos, to wit: "As the constitutional guaranty is not dependent
upon any affirmative act of the citizen, the courts do not place the citizens in the
position of either contesting an officer's authority by force, or waiving his
constitutional rights; but instead they hold that a peaceful submission to a search
or seizure is not a consent or an invitation thereto, but is merely a demonstration
of regard for the supremacy of the law."
DECISION
PUNO, J p:
This is an appeal by certiorari from the decision 1 of respondent Court of Appeals
dated September 15, 1998 which affirmed the judgment rendered by the Regional
Trial Court of Santa Cruz, Laguna, finding herein petitioner, Rudy Caballes y
Taio, guilty beyond reasonable doubt of the crime of theft, and the resolution 2
dated November 9, 1998 which denied petitioner's motion for reconsideration.
In an Information 3 dated October 16, 1989, petitioner was charged with the crime
of theft committed as follows:
"That on or about the 28th day of June, 1989, in the
Municipality of Pagsanjan, and/or elsewhere in the Province
of Laguna, and within the jurisdiction of this Honorable
Court, the above-named accused, with intent of gain, and
without the knowledge and consent of the owner thereof, the
NATIONAL POWER CORPORATION, did then and there
wilfully, unlawfully and feloniously take, steal and carry
away about 630-kg of Aluminum Cable Conductors, valued at
P27,450.00, belonging to and to the damage and prejudice of
said owner National Power Corp., in the aforesaid amount.
CONTRARY TO LAW."
During the arraignment, petitioner pleaded not guilty and hence, trial on the merits
ensued.
The facts are summarized by the appellate court as follows:
"[At] about 9:15 p.m. of June 28, 1989, Sgt. Victorino Noceja
and Pat. Alex de Castro, while on a routine patrol in Barangay
Sampalucan, Pagsanjan, Laguna, spotted a passenger jeep
unusually covered with "kakawati" leaves.
Suspecting that the jeep was loaded with smuggled goods, the
two police officers flagged down the vehicle. The jeep was
driven by appellant. When asked what was loaded on the jeep,
he did not answer; he appeared pale and nervous.
With appellant's consent, the police officers checked the
cargo and they discovered bundles of 3.08 mm
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aluminum/galvanized conductor wires exclusively owned by
National Power Corporation (NPC). The conductor wires
weighed 700 kilos and valued at P55,244.45. Noceja asked
appellant where the wires came from and appellant answered
that they came from Cavinti, a town approximately 8
kilometers away from Sampalucan. Thereafter, appellant and
the vehicle with the high-voltage wires were brought to the
Pagsanjan Police Station. Danilo Cabale took pictures of the
appellant and the jeep loaded with the wires which were
turned over to the Police Station Commander of Pagsanjan,
Laguna. Appellant was incarcerated for 7 days in the
Municipal jail.
In defense, appellant interposed denial and alibi. He testified
that he is a driver and resident of Pagsanjan, Laguna; a
NARCOM civilian agent since January, 1988 although his
identification card (ID) has already expired. In the afternoon
of June 28, 1989, while he was driving a passenger jeepney,
he was stopped by one Resty Fernandez who requested him to
transport in his jeepney conductor wires which were in
Cavinti, Laguna. He told Resty to wait until he had finished
his last trip for the day from Santa Cruz, Laguna. On his way
to Santa Cruz, Laguna, he dropped by the NARCOM
headquarters and informed his superior, Sgt. Callos, that
something unlawful was going to happen. Sgt. Callos advised
him to proceed with the loading of the wires and that the
former would act as back-up and intercept the vehicle at the
Sambat Patrol Base in Pagsanjan.
After receiving those instructions, he went back to see Resty.
Although Resty had his own vehicle, its tires were old so the
cable wires were loaded in appellant's jeep and covered with
kakawati leaves. The loading was done by about five (5)
masked men. He was promised P1,000.00 for the job. Upon
crossing a bridge, the two vehicles separated but in his case,
he was intercepted by Sgt. Noceja and Pat. De Castro. When
they discovered the cables, he told the police officers that the
cables were loaded in his jeep by the owner, Resty Fernandez.
But despite his explanation, he was ordered to proceed to
police headquarters where he was interrogated. The police
officers did not believe him and instead locked him up in jail
for a week." 4
On April 27, 1993, the court a quo rendered judgment 5 the dispositive portion of
which reads:
"WHEREFORE, finding the accused guilty beyond
reasonable doubt of the crime of Theft of property worth
P55,244.45, the Court hereby sentences him to suffer
imprisonment from TWO (2) [YEARS], FOUR (4)
MONTHS, and ONE (1) DAY of Prision Correccional, as
minimum, to TEN (10) YEARS of Prision Mayor, as
maximum, to indemnify the complainant National Power
Corporation in the amount of P55,244.45, and to pay the
costs."
On appeal, the Court of Appeals affirmed the judgment of conviction but deleted
the award for damages on the ground that the stolen materials were recovered and
modified the penalty imposed, to wit:
"WHEREFORE, the appealed decision is hereby AFFIRMED
with the modification that appellant RUDY CABALLES is
found guilty beyond reasonable doubt as principal in theft,
defined and penalized under Articles 308 and 309, par. 1,
Revised Penal Code, and there being no modifying
circumstances, he is hereby meted an indeterminate penalty of
Four (4) years, Nine (9) months and Eleven (11) days of
prision correccional, as minimum term, to Eight (8) years,
Eight (8) months and one (1) day of prision mayor, as
maximum term. No civil indemnity and no costs." 6
Petitioner comes before us and raises the following issues:
"(a) Whether or not the constitutional right of petitioner was
violated when the police officers searched his vehicle and
seized the wires found therein without a search warrant and
when samples of the wires and references to them were
admitted in evidence as basis for his conviction;
(b) Whether or not respondent Court erred in rejecting
petitioner's defense that he was engaged in an entrapment
operation and in indulging in speculation and conjecture in
rejecting said defense; and
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 (c) Whether or not the evidence of the prosecution failed to
establish the guilt of petitioner beyond reasonable doubt and
thus failed to overcome the constitutional right of petitioner to
presumption of innocence."
The conviction or acquittal of petitioner hinges primarily on the validity of the
warrantless search and seizure made by the police officers, and the admissibility
of the evidence obtained by virtue thereof.
In holding that the warrantless search and seizure is valid, the trial court ruled
that:
"As his last straw of argument, the accused questions the
constitutionality of the search and validity of his arrest on the
ground that no warrant was issued to that effect. The Court
cannot again sustain such view. In the case of People v. Lo
Ho [Wing], G.R. No. 88017, January 21, 1991, it has been
held that 'considering that before a warrant can be obtained,
the place, things and persons to be searched must be described
to the satisfaction of the issuing judge a requirement which
borders on the impossible in the case of smuggling effected
by the use of a moving vehicle that can transport contraband
from one place to another with impunity, a warrantless search
of a moving vehicle is justified on grounds of practicability.'
The doctrine is not of recent vintage. In the case of Valmonte
vs. de Villa, G.R. No. 83988, May 24, 1990 (Resolution on
Motion for Reconsideration, September 29, 1989), it was
ruled that 'automobiles because of their mobility may be
searched without a warrant upon facts not justifying
warrantless search of a resident or office. . . . To hold that no
criminal can, in any case, be arrested and searched for the
evidence and tokens of his crime without a warrant, would be
to leave society, to a large extent, at the mercy of the
shrewdest, the most expert, and the most depraved of
criminals, facilitating their escape in many instances' (Ibid.).
In Umil v. Ramos, 187 SCRA 311, and People vs. Ortiz, 191
SCRA 836, the Supreme Court held that a search may be
made even without a warrant where the accused is caught in
flagrante. Under the circumstances, the police officers are not
only authorized but are also under obligation to arrest the
accused even without a warrant." 7
Petitioner contends that the flagging down of his vehicle by police officers who
were on routine patrol, merely on "suspicion" that "it might contain smuggled
goods," does not constitute probable cause that will justify a warrantless search
and seizure. He insists that, contrary to the findings of the trial court as adopted by
the appellate court, he did not give any consent, express or implied, to the search
of the vehicle. Perforce, any evidence obtained in violation of his right against
unreasonable search and seizure shall be deemed inadmissible.
Enshrined in our Constitution is the inviolable right of the people to be secure in
their persons and properties against unreasonable searches and seizures, as defined
under Section 2, Article III thereof, which 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."
The exclusionary rule under Section 3(2), Article III of the Constitution bars the
admission of evidence obtained in violation of such right.
The constitutional proscription against warrantless searches and seizures is not
absolute but admits of certain exceptions, namely: (1) warrantless search
incidental to a lawful arrest recognized under Section 12, Rule 126 of the Rules of
Court and by prevailing jurisprudence; 8 (2) seizure of evidence in plain view; 9
(3) search of moving vehicles; 10 (4) consented warrantless search; 11 (5)
customs search; (6) stop and frisk situations (Terry search); 12 and (7) exigent and
emergency circumstances. 13
In cases where warrant is necessary, the steps prescribed by the Constitution and
reiterated in the Rules of Court must be complied with. In the exceptional events
where warrant is not necessary to effect a valid search or seizure, or when the
latter cannot be performed except without a warrant, what constitutes a reasonable
or unreasonable 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
92
search and seizure was made, the place or thing searched and the character of the
articles procured. 14
It is not controverted that the search and seizure conducted by the police officers
in the case at bar was not authorized by a search warrant. The main issue is
whether the evidence taken from the warrantless search is admissible against the
appellant. Without said evidence, the prosecution cannot prove the guilt of the
appellant beyond reasonable doubt.
I. Search of moving vehicle
Highly regulated by the government, the vehicle's inherent mobility reduces
expectation of privacy especially when its transit in public thoroughfares furnishes
a highly reasonable suspicion amounting to probable cause that the occupant
committed a criminal activity. 15 Thus, the rules governing search and seizure
have over the years been steadily liberalized whenever a moving vehicle is the
object of the search on the basis of practicality. This is so considering that before
a warrant could be obtained, the place, things and persons to be searched must be
described to the satisfaction of the issuing judge a requirement which borders
on the impossible in the case of smuggling effected by the use of a moving vehicle
that can transport contraband from one place to another with impunity. We might
add that a warrantless search of a moving vehicle is justified on the ground that it
is not practicable to secure a warrant because the vehicle can be quickly moved
out of the locality or jurisdiction in which the warrant must be sought. 16
Searches without warrant of automobiles is also allowed for the purpose of
preventing violations of smuggling or immigration laws, provided such searches
are made at borders or 'constructive borders' like checkpoints near the boundary
lines of the State. 17
The mere mobility of these vehicles, however, does not give the police officers
unlimited discretion to conduct indiscriminate searches without warrants if made
within the interior of the territory and in the absence of probable cause. 18 Still
and all, the important thing is that there was probable cause to conduct the
warrantless search, which must still be present in such a case.
Although the term eludes exact definition, probable cause signifies a reasonable
ground of suspicion supported by circumstances sufficiently strong in themselves
to warrant a cautious man's belief that the person accused is guilty of the offense
with which he is charged; or the existence of such facts and circumstances which
could lead a reasonably discreet and prudent man to believe that an offense has
been committed and that the items, articles or objects sought in connection with
said offense or subject to seizure and destruction by law is in the place to be
searched. 19 The required probable cause that will justify a warrantless search and
seizure is not determined by a fixed formula but is resolved according to the facts
of each case. 20
One such form of search of moving vehicles is the "stop-and-search" without
warrant at military or police checkpoints which has been declared to be not illegal
per se, 21 for as long as it is warranted by the exigencies of public order 22 and
conducted in a way least intrusive to motorists. 23 A checkpoint may either be a
mere routine inspection or it may involve an extensive search.
Routine inspections are not regarded as violative of an individual's right against
unreasonable search. The search which is normally permissible in this instance is
limited to the following instances: (1) where the officer merely draws aside the
curtain of a vacant vehicle which is parked on the public fair grounds; 24 (2)
simply looks into a vehicle; 25 (3) flashes a light therein without opening the car's
doors; 26 (4) where the occupants are not subjected to a physical or body search;
27 (5) where the inspection of the vehicles is limited to a visual search or visual
inspection; 28 and (6) where the routine check is conducted in a fixed area." 29
None of the foregoing circumstances is obtaining in the case at bar. The police
officers did not merely conduct a visual search or visual inspection of herein
petitioner's vehicle. They had to reach inside the vehicle, lift the kakawati leaves
and look inside the sacks before they were able to see the cable wires. It cannot be
considered a simple routine check.
In the case of United States vs. Pierre, 30 the Court held that the physical
intrusion of a part of the body of an agent into the vehicle goes beyond the area
protected by the Fourth Amendment, to wit:
"The Agent . . . stuck his head through the driver's side
window. The agent thus effected a physical intrusion into the
vehicle . . . [W]e are aware of no case holding that an officer
did not conduct a search when he physically intruded part of
his body into a space in which the suspect had a reasonable
expectation of privacy. [The] Agent[s] . . . physical intrusion
allowed him to see and to smell things he could not see or
smell from outside the vehicle . . . In doing so, his inspection
went beyond that portion of the vehicle which may be viewed
from outside the vehicle by either inquisitive passersby or
diligent police officers, and into the area protected by the
Fourth amendment, just as much as if he had stuck his head
inside the open window of a home."
93
On the other hand, when a vehicle is stopped and subjected to an extensive search,
such a warrantless search would be constitutionally permissible only if the officers
conducting the search have reasonable or probable cause to believe, before the
search, that either the motorist is a law-offender or they will find the
instrumentality or evidence pertaining to a crime in the vehicle to be searched. 31
This Court has in the past found probable cause to conduct without a judicial
warrant an extensive search of moving vehicles in situations where (1) there had
emanated from a package the distinctive smell of marijuana; (2) agents of the
Narcotics Command ("Narcom") of the Philippine National Police ("PNP") had
received a confidential report from informers that a sizeable volume of marijuana
would be transported along the route where the search was conducted; (3) Narcom
agents had received information that a Caucasian coming from Sagada, Mountain
Province, had in his possession prohibited drugs and when the Narcom agents
confronted the accused Caucasian, because of a conspicuous bulge in his
waistline, he failed to present his passport and other identification papers when
requested to do so; (4) Narcom agents had received confidential information that a
woman having the same physical appearance as that of the accused would be
transporting marijuana; 32 (5) the accused who were riding a jeepney were
stopped and searched by policemen who had earlier received confidential reports
that said accused would transport a large quantity of marijuana; and (6) where the
moving vehicle was stopped and searched on the basis of intelligence information
and clandestine reports by a deep penetration agent or spy one who participated
in the drug smuggling activities of the syndicate to which the accused belonged
that said accused were bringing prohibited drugs into the country. 33
In the case at bar, the vehicle of the petitioner was flagged down because the
police officers who were on routine patrol became suspicious when they saw that
the back of the vehicle was covered with kakawati leaves which, according to
them, was unusual and uncommon.
Pat. Alex de Castro recounted the incident as follows:
"ATTY. SANTOS
Q Now on said date and time do you remember of any
unusual incident while you were performing your
duty?
A Yes, sir, at that time and date myself and Police Sgt. Noceja
were conducting patrol in the said place when we
spotted a suspicious jeepney so we stopped the
jeepney and searched the load of the jeepney and we
found out (sic) these conductor wires.
Q You mentioned about the fact that when you saw the
jeepney you became suspicious, why did you become
suspicious?
A Because the cargo was covered with leaves and branches,
sir.
Q When you became suspicious upon seeing those leaves on
top of the load what did you do next, if any?
A We stopped the jeepney and searched the contents thereof,
sir." 34
The testimony of Victorino Noceja did not fare any better:
"ATTY. SANTOS
Q When you saw the accused driving the said vehicle, what
did you do?
A Because I saw that the vehicle being drawn by Caballes
was covered by kakawati leaves, I became suspicious
since such vehicle should not be covered by those
and I flagged him, sir." 35
We hold that the fact that the vehicle looked suspicious simply because it is not
common for such to be covered with kakawati leaves does not constitute
"probable cause" as would justify the conduct of a search without a warrant.
In People vs. Chua Ho San, 36 we held that the fact that the watercraft used by the
accused was different in appearance from the usual fishing boats that commonly
cruise over the Bacnotan seas coupled with the suspicious behavior of the accused
when he attempted to flee from the police authorities do not sufficiently establish
probable cause. Thus:
"In the case at bar, the Solicitor General proposes that the
following details are suggestive of probable cause
persistent reports of rampant smuggling of firearm and other
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 contraband articles, CHUA's watercraft differing in
appearance from the usual fishing boats that commonly cruise
over the Bacnotan seas, CHUA's illegal entry into the
Philippines . . ., CHUA's suspicious behavior, i.e., he
attempted to flee when he saw the police authorities, and the
apparent ease by which CHUA can return to and navigate his
speedboat with immediate dispatch towards the high seas,
beyond the reach of Philippine laws.
This Court, however, finds that these do not constitute
"probable cause." None of the telltale clues, e.g., bag or
package emanating the pungent odor of marijuana or other
prohibited drug, confidential report and/or positive
identification by informers of courier of prohibited drug
and/or the time and place where they will transport/deliver the
same, suspicious demeanor or behavior, and suspicious bulge
in the waist accepted by this Court as sufficient to justify a
warrantless arrest exists in this case. There was no classified
information that a foreigner would disembark at Tammocalao
beach bearing prohibited drug on the date in question. CHUA
was not identified as a drug courier by a police informer or
agent. The fact that the vessel that ferried him to shore bore
no resemblance to the fishing boats of the area did not
automatically mark him as in the process of perpetrating an
offense. . . .." (italics supplied)
In addition, the police authorities do not claim to have received any confidential
report or tipped information that petitioner was carrying stolen cable wires in his
vehicle which could otherwise have sustained their suspicion. Our jurisprudence is
replete with cases where tipped information has become a sufficient probable
cause to effect a warrantless search and seizure. 37 Unfortunately, none exists in
this case.
II. Plain view doctrine
It cannot likewise be said that the cable wires found in petitioner's vehicle were in
plain view, making its warrantless seizure valid.
Jurisprudence is to the effect that an object is in plain view if the object itself is
plainly exposed to sight. 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. 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. 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. 38
It is clear from the records of this case that the cable wires were not exposed to
sight because they were placed in sacks 39 and covered with leaves. The articles
were neither transparent nor immediately apparent to the police authorities. They
had no clue as to what was hidden underneath the leaves and branches. As a
matter of fact, they had to ask petitioner what was loaded in his vehicle. In such a
case, it has been held that the object is not in plain view which could have
justified mere seizure of the articles without further search. 40
III. Consented search
Petitioner contends that the statement of Sgt. Victorino Noceja that he checked the
vehicle "with the consent of the accused" is too vague to prove that petitioner
consented to the search. He claims that there is no specific statement as to how the
consent was asked and how it was given, nor the specific words spoken by
petitioner indicating his alleged "consent." At most, there was only an implied
acquiescence, a mere passive conformity, which is no "consent" at all within the
purview of the constitutional guarantee.
Doubtless, the constitutional immunity against unreasonable searches and seizures
is a personal right which may be waived. The consent must be voluntary in order
to validate an otherwise illegal detention and search, i.e., the consent is
unequivocal, specific, and intelligently given, uncontaminated by any duress or
coercion. 41 Hence, consent to a search is not to be lightly inferred, but must be
shown by clear and convincing evidence. 42 The question whether a consent to a
search was in fact voluntary is a question of fact to be determined from the totality
of all the circumstances. 43 Relevant to this determination are the following
characteristics of the person giving consent and the environment in which consent
is given: (1) the age of the defendant; (2) whether he was in a public or secluded
location; (3) whether he objected to the search or passively looked on; 44 (4) the
education and intelligence of the defendant; (5) the presence of coercive police
procedures; (6) the defendant's belief that no incriminating evidence will be
found; 45 (7) the nature of the police questioning; (8) the environment in which
the questioning took place; and (9) the possibly vulnerable subjective state of the
95
person consenting. 46 It is the State which has the burden of proving, by clear and
positive testimony, that the necessary consent was obtained and that it was freely
and voluntarily given. 47
In the case at bar, Sgt. Victorino Noceja testified on the manner in which the
search was conducted in this wise:
"WITNESS
Q On June 28, 1989, where were you?
A We were conducting patrol at the poblacion and some
barangays, sir.
xxx xxx xxx
Q After conducting the patrol operation, do you remember of
any unusual incident on said date and time?
A Yes, sir.
Q What is that incident?
A While I was conducting my patrol at barangay Sampalucan,
I saw Rudy Caballes driving a vehicle and the
vehicle contained aluminum wires, sir.
xxx xxx xxx
Q When you saw the accused driving the said vehicle, what
did you do?
A Because I saw that the vehicle being driven by Caballes
was covered by kakawati leaves, I became
suspicious since such vehicle should not be covered
by those and I flagged him, sir.
Q Did the vehicle stop?
A Yes, sir, and after said vehicle stop[ped], I removed the
cover of said vehicle and by so doing, I saw the
aluminum wires.
Q Before you saw the aluminum wires, did you talk to the
accused?
A Yes, sir, I asked him what his load was.
Q What was the answer of Caballes?
A He did not answer and I observed him to be pale,
"nagpapamutla" (sic), so I told him I will look at the
contents of his vehicle and he answered in the
positive.
Q And after you saw for yourself the aluminum wires loaded
on the jeep, what did you do?
A I asked him where those wires came from and he answered
those came from the Cavinti area, sir." 48
This Court is not unmindful of cases upholding the validity of consented
warrantless searches and seizure. But in these cases, the police officers' request to
search personnel effects was orally articulated to the accused and in such language
that left no room for doubt that the latter fully understood what was requested. In
some instance, the accused even verbally replied to the request demonstrating that
he also understood the nature and consequences of such request. 49
In Asuncion vs. Court of Appeals, 50 the apprehending officers sought the
permission of petitioner to search the car, to which the latter agreed. Petitioner
therein himself freely gave his consent to said search. In People vs. Lacerna, 51
the appellants who were riding in a taxi were stopped by two policemen who
asked permission to search the vehicle and the appellants readily agreed. In
upholding the validity of the consented search, the Court held that appellant
himself who was "urbanized in mannerism and speech" expressly said that he was
consenting to the search as he allegedly had nothing to hide and had done nothing
wrong. In People vs. Cuizon, 52 the accused admitted that they signed a written
permission stating that they freely consented to the search of their luggage by the
NBI agents to determine if they were carrying shabu. In People vs. Montilla, 53 it
was held that the accused spontaneously performed affirmative acts of volition by
96
himself opening the bag without being forced or intimidated to do so, which acts
should properly be construed as a clear waiver of his right. In People vs.
Omaweng, 54 the police officers asked the accused if they could see the contents
of his bag to which the accused said "you can see the contents but those are only
clothings." Then the policemen asked if they could open and see it, and accused
answered "you can see it." The Court said there was a valid consented search.
In case of consented searches or waiver of the constitutional guarantee against
obtrusive searches, it is fundamental that to constitute a waiver, it must first
appear that (1) the right exists; (2) that the person involved had knowledge, either
actual or constructive, of the existence of such right; and (3) the said person had
an actual intention to relinquish the right. 55
In the case at bar, the evidence is lacking that the petitioner intentionally
surrendered his right against unreasonable searches. The manner by which the two
police officers allegedly obtained the consent of petitioner for them to conduct the
search leaves much to be desired. When petitioner's vehicle was flagged down,
Sgt. Noceja approached petitioner and "told him I will look at the contents of his
vehicle and he answered in the positive." We are hard put to believe that by
uttering those words, the police officers were asking or requesting for permission
that they be allowed to search the vehicle of petitioner. For all intents and
purposes, they were informing, nay, imposing upon herein petitioner that they will
search his vehicle. The "consent" given under intimidating or coercive
circumstances is no consent within the purview of the constitutional guaranty. In
addition, in cases where this Court upheld the validity of consented search, it will
be noted that the police authorities expressly asked, in no uncertain terms, for the
consent of the accused to be searched. And the consent of the accused was
established by clear and positive proof. In the case of herein petitioner, the
statements of the police officers were not asking for his consent; they were
declaring to him that they will look inside his vehicle. Besides, it is doubtful
whether permission was actually requested and granted because when Sgt. Noceja
was asked during his direct examination what he did when the vehicle of
petitioner stopped, he answered that he removed the cover of the vehicle and saw
the aluminum wires. It was only after he was asked a clarificatory question that he
added that he told petitioner he will inspect the vehicle. To our mind, this was
more of an afterthought. Likewise, when Pat. de Castro was asked twice in his
direct examination what they did when they stopped the jeepney, his consistent
answer was that they searched the vehicle. He never testified that he asked
petitioner for permission to conduct the search. 56
Neither can petitioner's passive submission be construed as an implied
acquiescence to the warrantless search. In People vs. Barros, 57 appellant Barros,
who was carrying a carton box, boarded a bus where two policemen were riding.
The policemen inspected the carton and found marijuana inside. When asked who
owned the box, appellant denied ownership of the box and failed to object to the
search. The Court there struck down the warrantless search as illegal and held that
the accused is not to be presumed to have waived the unlawful search conducted
simply because he failed to object, citing the ruling in the case of People vs.
Burgos, 58 to wit:
"As the constitutional guaranty is not dependent upon any
affirmative act of the citizen, the courts do not place the
citizens in the position of either contesting an officer's
authority by force, or waiving his constitutional rights; but
instead they hold that a peaceful submission to a search or
seizure is not a consent or an invitation thereto, but is merely
a demonstration of regard for the supremacy of the law."
Casting aside the cable wires as evidence, the remaining evidence on record are
insufficient to sustain petitioner's conviction. His guilt can only be established
without violating the constitutional right of the accused against unreasonable
search and seizure.
WHEREFORE, the impugned decision is REVERSED and SET ASIDE, and
accused Rudy Caballes is hereby ACQUITTED of the crime charged. Cost de
oficio. EDATSI
SO ORDERED.
Davide, Jr., C.J., Kapunan, Pardo and Ynares-Santiago, JJ., concur.
||| (Caballes y Taio v. Court of Appeals, G.R. No. 136292, January 15, 2002)
97
THIRD DIVISION
[G.R. No. 136860. January 20, 2003.]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.
AGPANGA LIBNAO y KITTEN and ROSITA NUNGA y
VALENCIA, accused.
AGPANGA LIBNAO y KITTEN, accused-appellant.
The Solicitor General for plaintiff-appellee.
Molintas & Molintas Law Office for accused-appellant.
SYNOPSIS
This is an appeal from the decision of the Regional Trial Court of Tarlac City
finding appellant and her co-accused guilty of violating Article II, Section 4 of
R.A. No. 6425, otherwise known as the Dangerous Drugs Act of 1972. For their
conviction, each was sentenced to suffer an imprisonment of reclusion perpetua.
The appellant argued that her arrest was unlawful and capitalized on the absence
of a warrant for her arrest. She contended that at the time she was apprehended by
the police officers, she was not committing any offense but was merely riding a
tricycle. She also impugned the search made on her belongings as illegal as it was
not done without a valid warrant or under circumstances when warrantless search
is permissible. Consequently, she claimed that the evidence obtained therein were
inadmissible against her. HDITCS
The Supreme Court affirmed the conviction of the appellant. According to the
Court, the general rule is that a search may be conducted by law enforcers only on
the strength of a search warrant validly issued by a judge as provided in the
Constitution. However, the constitutional guarantee is not a blanket prohibition
against all searches and seizures. The warrantless search in this case is not bereft
of a probable cause. It was also clear that at the time she was apprehended, she
was committing a criminal offense, transporting prohibited drugs. Against the
credible positive testimonies of the prosecution witnesses, appellant's defense of
denial and alibi could not stand.
SYLLABUS
1. CONSTITUTIONAL LAW; BILL OF RIGHTS; SEARCHES AND
SEIZURES; UNREASONABLE UNLESS AUTHORIZED BY A VALIDLY
ISSUED SEARCH WARRANT OR WARRANT OF ARREST, AS A RULE.
The general rule is that a search may be conducted by law enforcers only on the
strength of a search warrant validly issued by a judge as provided in Article III,
Section 2 of the 1987 Constitution, thus: "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 and 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." The constitutional
guarantee is not a blanket prohibition against all searches and seizures as it
operates only against "unreasonable" searches and seizures. Searches and seizures
are as a rule unreasonable unless authorized by a validly issued search warrant or
warrant of arrest. Thus, the fundamental protection accorded by the search and
seizure clause is that between persons and police must stand the protective
authority of a magistrate clothed with power to issue or refuse to issue search
warrants and warrants of arrest. HIACEa
2. ID.; ID.; ID.; ID.; SEARCH AND SEIZURE OF MOVING VEHICLE AS AN
EXCEPTION; RATIONALE. Be that as it may, the requirement that a judicial
warrant must be obtained prior to the carrying out of a search and seizure is not
absolute. There are certain familiar exceptions to the rule, one of which relates to
search of moving vehicles. Warrantless search and seizure of moving vehicles are
allowed in recognition of the impracticability of securing a warrant under said
circumstances as the vehicle can be quickly moved out of the locality or
jurisdiction in which the warrant may be sought. Peace officers in such cases,
however, are limited to routine checks where the examination of the vehicle is
limited to visual inspection. When a vehicle is stopped and subjected to an
extensive search, such would be constitutionally permissible only if the officers
made it upon probable cause, i.e., upon a belief, reasonably arising out of
circumstances known to the seizing officer, that an automobile or other vehicle
contains as item, article or object which by law is subject to seizure and
destruction.
3. ID.; ID.; ID.; ID.; ID.; PRESENT IN CASE AT BAR. The warrantless
search in the case at bench is not bereft of a probable cause. The Tarlac Police
Intelligence Division had been conducting surveillance operation for three months
in the area. The surveillance yielded the information that once a month, appellant
98
and her co-accused Rosita Nunga transport drugs in big bulks. At 10:00 pm of
October 19, 1996, the police received a tip that the two will be transporting drugs
that night riding a tricycle. Surely, the two were intercepted three hours later,
riding a tricycle and carrying a suspicious-looking black bag, which possibly
contained the drugs in bulk. When they were asked who owned it and what its
content was, both became uneasy. Under these circumstances, the warrantless
search and seizure of appellant's bag was not illegal. It is also clear that at the time
she was apprehended, she was committing a criminal offense. She was making a
delivery or transporting prohibited drugs in violation of Article II, Section 4 of
R.A. No. 6425. Under the Rules of Court, one of the instances a police officer is
permitted to carry out a warrantless arrest is when the person to be arrested is
caught committing a crime in flagrante delicto.
4. REMEDIAL LAW; EVIDENCE; WHEN PRESENTATION THEREOF
EVEN WITHOUT FORMAL OFFER MAY ESTABLISH THE
PROSECUTION'S CASE; CASE AT BAR. Evidence not formally offered can
be considered by the court as long as they have been properly identified by
testimony duly recorded and they have themselves, been incorporated in the
records of the case. All the documentary and object evidence in this case were
properly identified, presented and marked as exhibits in court, including the bricks
of marijuana. Even without their formal offer, therefore, the prosecution can still
establish the case because witnesses properly identified those exhibits, and their
testimonies are recorded. Furthermore, appellant's counsel had cross-examined the
prosecution witnesses who testified on the exhibits.
5. ID.; ID.; CREDIBILITY OF WITNESSES; NOT AFFECTED BY
INCONSISTENCIES ON MINOR DETAILS; APPLICATION IN CASE AT
BAR. The alleged inconsistencies she mentions refer only to minor details and
not to material points regarding the basic elements of the crime. They are
inconsequential that they do not affect the credibility of the witnesses nor detract
from the established fact that appellant and her co-accused were transporting
marijuana. Testimonies of witnesses need only corroborate each other on
important and relevant details concerning the principal occurrence. The identity of
the person who opened the bag is clearly immaterial to the guilt of the appellant.
Besides, it is to be expected that the testimony of witnesses regarding the same
incident may be inconsistent in some aspects because different persons may have
different recollections of the same incident.
6. ID.; ID.; ID.; CREDENCE MAY BE PROPERLY ACCORDED TO
TESTIMONIES OF POLICE OFFICERS WHO EXHIBITED NO IMPROPER
MOTIVE TO ARREST THE APPELLANT. To be sure, credence was
properly accorded to the testimonies of prosecution witnesses, who are law
enforcers. When police officers have no motive to testify falsely against the
accused, courts are inclined to uphold this presumption. In this case, no evidence
has been presented to suggest any improper motive on the part of the police
enforcers in attesting the appellant. ATSIED
7. ID.; ID.; DENIAL AND ALIBI, AS DEFENSE; CANNOT STAND AGAINST
CREDIBLE POSITIVE TESTIMONIES OF THE PROSECUTION WITNESS.
Against the credible positive testimonies of the prosecution witnesses,
appellant's defense of denial and alibi cannot stand. The defense of denial and
alibi has been invariably viewed by the courts with disfavor for it can just as
easily be concocted and is a common and standard defense ploy in most cases
involving violation of the Dangerous Drugs Act. It has to be substantiated by clear
and convincing evidence. The sole proof presented in the lower court by the
appellant to support her claim of denial and alibi was a sworn statement, which
was not even affirmed on the witness stand by the affiant.
DECISION
PUNO, J p:
Before us is an appeal from the Decision dated November 19, 1998 of the
Regional Trial Court, Branch 65, Tarlac City, finding appellant Agpanga Libnao
and her co-accused Rosita Nunga guilty of violating Article II, Section 4 of R.A.
No. 6425, otherwise known as the Dangerous Drugs Act of 1972. 1 For their
conviction, each was sentenced to suffer an imprisonment of reclusion perpetua
and to pay a fine of two million pesos.
Appellant and her co-accused were charged under the following Information:
"That on or about October 20, 1996 at around 1:00 o'clock
dawn, in the Municipality of Tarlac, Province of Tarlac,
Philippines, and within the jurisdiction of this Honorable
Court, the above-named accused conspiring, confederating
and helping with one another, without being lawfully
authorized, did then and there willfully, unlawfully and
feloniously make delivery/transport with intent to sell
marijuana leaves wrapped in a transparent plastic weighing
approximately eight (8) kilos, which is in violation of Section
99
 4, Article II of RA 6425, otherwise known as the Dangerous
Drugs Act of 1972, as amended.
CONTRARY TO LAW." 2
During their arraignment, both entered a plea of Not Guilty. Trial on the merits
ensued.
It appears from the evidence adduced by the prosecution that in August of 1996,
intelligence operatives of the Philippine National Police (PNP) stationed in Tarlac,
Tarlac began conducting surveillance operation on suspected drug dealers in the
area. They learned from their asset that a certain woman from Tajiri, Tarlac and a
companion from Baguio City were transporting illegal drugs once a month in big
bulks.
On October 19, 1996, at about 10 o'clock in the evening, Chief Inspector
Benjamin Arceo, Tarlac Police Chief, held a briefing in connection with a tip
which his office received that the two drug pushers, riding in a tricycle, would be
making a delivery that night. An hour later, the Police Alert Team installed a
checkpoint in Barangay Salapungan to apprehend the suspects. Witness SPO1
Marlon Gamotea, PO3 Florante Ferrer and SPO3 Roberto Aquino were assigned
to man the checkpoint.
At about 1:00 o'clock in the morning of the following day, SPO1 Gamotea and
PO3 Ferrer flagged down a passing tricycle. It had two female passengers seated
inside, who were later identified as the appellant Agpanga Libnao and her co-
accused Rosita Nunga. 3 In front of them was a black bag. Suspicious of the black
bag and the two's uneasy behavior when asked about its ownership and content,
the officers invited them to Kabayan Center No. 2 located at the same barangay.
They brought with them the black bag.
Upon reaching the center, PO3 Ferrer fetched Barangay Captain Roy Pascual to
witness the opening of the black bag. In the meantime, the two women and the
bag were turned over to the investigator on duty, SPO3 Arthur Antonio. As soon
as the barangay captain arrived, the black bag was opened in the presence of the
appellant, her co-accused and personnel of the center. Found inside it were eight
bricks of leaves sealed in plastic bags and covered with newspaper. The leaves
were suspected to be marijuana.
To determine who owns the bag and its contents, SPO3 Antonio interrogated the
two. Rosita Nunga stated that it was owned by the appellant. The latter, in turn,
disputed this allegation. Thereafter, they were made to sign a confiscation receipt
without the assistance of any counsel, as they were not informed of their right to
have one. During the course of the investigation, not even close relatives of theirs
were present.
The seized articles were later brought to the PNP Crime Laboratory in San
Fernando, Pampanga on October 23, 1996. Forensic Chemist Daisy P. Babu
conducted a laboratory examination on them. She concluded that the articles were
marijuana leaves weighing eight kilos. 4
For their part, both accused denied the accusation against them. Rosita Nunga
testified that in the evening of October 19, 1996, she went to buy medicine for her
ailing child at a pharmacy near the Tarlac Provincial Hospital. The child was
suffering from diarrhea, occasioned by abdominal pain. To return to their house,
she boarded a tricycle bound for Barangay Tariji, where she resides. Along the
way, the tricycle she was riding was flagged down by a policeman at a checkpoint
in Barangay Salapungan. She was taken aback when the officer invited her to the
Kabayan Center. It was there that she was confronted with the black bag allegedly
containing eight bricks of marijuana leaves. She disputed owning the bag and
knowing its contents. She also denied sitting beside the appellant in the
passenger's seat inside the tricycle, although she admitted noticing a male
passenger behind the driver.
Remarkably, appellant did not appear in court and was only represented by her
lawyer. The latter marked and submitted in evidence an affidavit executed by one
Efren Gannod, a security guard of Philippine Rabbit Bus Lines in Tarlac, Tarlac.
The sworn statement declared that at about 0220H on October 20, 1996, SPO2
Antonio arrived at their terminal and arrested a certain woman who boarded their
Bus No. 983. The incident was recorded in the company's logbook. Gannod,
however, was not presented in court to attest that the woman referred in his
affidavit was the appellant.
After trial, the court convicted appellant and her co-accused Rosita Nunga, thus:
"WHEREFORE, finding both accused guilty beyond
reasonable doubt of the offense of violation of Article II,
Section 4 of RA 6425 in relation to RA 7659, they are hereby
sentenced to suffer an imprisonment of reclusion perpetua
and to pay a fine of two million pesos.
100
 SO ORDERED." 5
Aggrieved by the verdict, appellant interposed the present appeal. In her brief, she
assigned the following errors:
"1. The Honorable Regional Trial Court failed to appreciate
the contention of the defense that the right of accused against
illegal and unwarranted arrest and search was violated by the
police officers who arrested both accused.
2. The Honorable Court failed to appreciate the contention of
the defense that the right of the accused to custodial
investigation was deliberately violated by the peace officers
who apprehended and investigated the accused.
3. The Honorable Court miserably failed to evaluate the
material inconsistencies in the testimonies of the prosecution's
witnesses which inconsistencies cast doubt and make
incredible the contention and version of the prosecution.
4. The Honorable Court gravely abused its discretion when it
appreciated and considered the documentary and object
evidence of the prosecution not formally offered amounting to
ignorance of the law." 6
We are not persuaded by these contentions; hence, the appeal must be dismissed.
In arguing that her arrest was unlawful, appellant capitalizes on the absence of a
warrant for her arrest. She contends that at the time she was apprehended by the
police officers, she was not committing any offense but was merely riding a
tricycle. In the same manner, she impugns the search made on her belongings as
illegal as it was done without a valid warrant or under circumstances when
warrantless search is permissible. Consequently, any evidence obtained therein is
inadmissible against her.
These arguments fail to impress. The general rule is that a search may be
conducted by law enforcers only on the strength of a search warrant validly issued
by a judge as provided in Article III, Section 2 of the 1987 Constitution, thus:
"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 and 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." 7
The constitutional guarantee is not a blanket prohibition against all searches
and seizures as it operates only against "unreasonable" searches and seizures.
Searches and seizures are as a rule unreasonable unless authorized by a
validly issued search warrant or warrant of arrest. Thus, the fundamental
protection accorded by the search and seizure clause is that between persons
and police must stand the protective authority of a magistrate clothed with
power to issue or refuse to issue search warrants and warrants of arrest. 8
Be that as it may, the requirement that a judicial warrant must be obtained prior to
the carrying out of a search and seizure is not absolute. There are certain familiar
exceptions to the rule, one of which relates to search of moving vehicles. 9
Warrantless search and seizure of moving vehicles are allowed in recognition of
the impracticability of securing a warrant under said circumstances as the vehicle
can be quickly moved out of the locality or jurisdiction in which the warrant may
be sought. 10 Peace officers in such cases, however, are limited to routine checks
where the examination of the vehicle is limited to visual inspection. 11 When a
vehicle is stopped and subjected to an extensive search, such would be
constitutionally permissible only if the officers made it upon probable cause, i.e.,
upon a belief, reasonably arising out of circumstances known to the seizing
officer, that an automobile or other vehicle contains as item, article or object
which by law is subject to seizure and destruction. 12
In earlier decisions, we held that there was probable cause in the following
instances: (a) where the distinctive odor of marijuana emanated from the plastic
bag carried by the accused; 13 (b) where an informer positively identified the
accused who was observed to be acting suspiciously; 14 (c) where the accused
who were riding a jeepney were stopped and searched by policemen who had
earlier received confidential reports that said accused would transport a quantity
of marijuana; 15 (d) where Narcom agents had received information that a
Caucasian coming from Sagada, Mountain Province had in his possession
prohibited drugs and when the Narcom agents confronted the accused Caucasian
because of a conspicuous bulge in his waistline, he failed to present his passport
and other identification papers when requested to do so; 16 (f) where the moving
vehicle was stopped and searched on the basis of intelligence information and
101
clandestine reports by a deep penetration agent or spy one who participated in
the drug smuggling activities of the syndicate to which the accused belong that
said accused were bringing prohibited drugs into the country; 17 (g) where the
arresting officers had received a confidential information that the accused, whose
identity as a drug distributor was established in a previous test-buy operation,
would be boarding MV Dona Virginia and probably carrying shabu with him; 18
(h) where police officers received an information that the accused, who was
carrying a suspicious-looking gray luggage bag, would transport marijuana in a
bag to Manila; 19 and (i) where the appearance of the accused and the color of the
bag he was carrying fitted the description given by a civilian asset. 20
The warrantless search in the case at bench is not bereft of a probable cause. The
Tarlac Police Intelligence Division had been conducting surveillance operation for
three months in the area. The surveillance yielded the information that once a
month, appellant and her co-accused Rosita Nunga transport drugs in big bulks.
At 10:00 pm of October 19, 1996, the police received a tip that the two will be
transporting drugs that night riding a tricycle. Surely, the two were intercepted
three hours later, riding a tricycle and carrying a suspicious-looking black bag,
which possibly contained the drugs in bulk. When they were asked who owned it
and what its content was, both became uneasy. Under these circumstances, the
warrantless search and seizure of appellant's bag was not illegal. EaSCAH
It is also clear that at the time she was apprehended, she was committing a
criminal offense. She was making a delivery or transporting prohibited drugs in
violation of Article II, Section 4 of R.A. No. 6425. Under the Rules of Court, one
of the instances a police officer is permitted to carry out a warrantless arrest is
when the person to be arrested is caught committing a crime in flagrante delicto,
thus:
"Section 5. Arrest without Warrant; when lawful. A peace
officer or a private person may, without 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 in fact 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 temporarily confined while his case
is pending, or has escaped while being transferred from one
confinement to another.
xxx xxx xxx." 21 (italics supplied)
Appellant also takes issue of the fact that she was not assisted by a lawyer when
police officers interrogated her. She claimed that she was not duly informed of her
right to remain silent and to have competent counsel of her choice. Hence, she
argues that the confession or admission obtained therein should be considered
inadmissible in evidence against her.
These contentions deserve scant attention. Appellant did not make any confession
during her custodial investigation. In determining the guilt of the appellant and her
co-accused, the trial court based its decision on the testimonies of prosecution
witnesses and on the existence of the confiscated marijuana. We quote the
relevant portion of its decision:
"Earlier in the course of the proceedings, the court then
presided by Judge Angel Parazo, granted bail to accused
Agpanga Libnao, ruling that the confiscation receipt signed
by both accused (Exhibit "C") is inadmissible because they
were not assisted by a counsel. Confronted with this same
issue, this court finds the postulate to rest on good authority
and will therefore reiterate its inadmissibility.
Since the prosecution had not presented any extrajudicial
confession extracted from both accused as evidence of their
guilt, the court finds it needless to discuss any answer given
by both accused as a result of the police interrogation while in
their custody. By force of necessity, therefore, the only issue
to be resolved by the court is whether or not, based on the
prosecution's evidence, both accused can be convicted." 22
(italics supplied).
102
Appellant then faults the trial court for appreciating and taking into account the falsely against the accused, courts are inclined to uphold this presumption. 29 In
object and documentary evidence of the prosecution despite the latter's failure to this case, no evidence has been presented to suggest any improper motive on the
formally offer them. Absent any formal offer, she argues that they again must be part of the police enforcers in arresting the appellant.
deemed inadmissible.
Against the credible positive testimonies of the prosecution witnesses, appellant's
The contention is untenable. Evidence not formally offered can be considered by defense of denial and alibi cannot stand. The defense of denial and alibi has been
the court as long as they have been properly identified by testimony duly recorded invariably viewed by the courts with disfavor for it can just as easily be concocted
and they have themselves been incorporated in the records of the case. 23 All the and is a common and standard defense ploy in most cases involving violation of
documentary and object evidence in this case were properly identified, presented the Dangerous Drugs Act. 30 It has to be substantiated by clear and convincing
and marked as exhibits in court, including the bricks of marijuana. 24 Even evidence. 31 The sole proof presented in the lower court by the appellant to
without their formal offer, therefore, the prosecution can still establish the case support her claim of denial and alibi was a sworn statement, which was not even
because witnesses properly identified those exhibits, and their testimonies are affirmed on the witness stand by the affiant. Hence, we reject her defense.
recorded. 25 Furthermore, appellant's counsel had cross-examined the prosecution
witnesses who testified on the exhibits. 26 IN VIEW WHEREOF, the instant appeal is DENIED. The decision of the trial
court finding appellant guilty beyond reasonable doubt of the offense of violation
Appellant also assails the credibility of the testimonies of the prosecution of Article II, Section 4 of R.A. No. 6425 in relation to R.A. NO. 7659, and
witnesses. She first cites the inconsistency between the testimony of SPO1 Marlon sentencing her to an imprisonment of reclusion perpetua and to pay a fine of two
Gamotea, who said that it was SPO2 Antonio who opened the black bag million pesos is hereby AFFIRMED. EcATDH
containing the marijuana; and that of SPO2 Antonio, who declared that the bag
was already open when he arrived at the Kabayan Center. She then focuses on the SO ORDERED.
police officers' failure to remember the family name of the driver of the tricycle
where she allegedly rode, claiming that this is improbable and contrary to human
Panganiban, Sandoval-Gutierrez, Corona and Carpio Morales, JJ., concur.
experience.
||| (People v. Libnao y Kitten, G.R. No. 136860, January 20, 2003)
Again, appellant's arguments lack merit. The alleged inconsistencies she mentions
refer only to minor details and not to material points regarding the basic elements
of the crime. They are inconsequential that they do not affect the credibility of the
witnesses nor detract from the established fact that appellant and her co-accused
were transporting marijuana. Testimonies of witnesses need only corroborate each
other on important and relevant details concerning the principal occurrence. 27
The identity of the person who opened the bag is clearly immaterial to the guilt of
the appellant. Besides, it is to be expected that the testimony of witnesses
regarding the same incident may be inconsistent in some aspects because different
persons may have different recollections of the same incident. 28

Likewise, we find nothing improbable in the failure of the police officers to note
and remember the name of the tricycle driver for the reason that it was
unnecessary for them to do so. It was not shown that the driver was in complicity
with the appellant and her co-accused in the commission of the crime.

To be sure, credence was properly accorded to the testimonies of prosecution

witnesses, who are law enforcers. When police officers have no motive to testify

103
FIRST DIVISION
[G.R. No. 148825. December 27, 2002.]
PEOPLE OF THE PHILIPPINES, appellee, vs. SUSAN
CANTON, appellant.
The Solicitor General for plaintiff-appellee.
Perlas, De Guzman, Antonio, Venturanza, Quizon-Venturanza & Herbosa Law
Firm, Sandoval & Ozamiz for accused-appellant.
SYNOPSIS
Appellant was charge with violation of Section 16 of Article III of the Dangerous
Drugs Act of 1972 (REPUBLIC ACT NO. 6425). At the trial, the prosecution
established that at the time of the commission of the crime, appellant was at the
Ninoy Aquino International Airport (NAIA), being a departing passenger bound
for Saigon, Vietnam. When she passed through metal detector booth, a beeping
sound was emitted. Consequently, the frisker on duty frisked and searched
appellant. The frisker felt something bulging at appellant's abdominal area so she
was brought to a comfort room for a thorough physical examination. It was
discovered that appellant was carrying packages containing shabu. After due
proceedings, the trial court found her guilty as charged. Hence, this appeal.
aCITEH
In affirming the conviction of appellant, the Supreme Court ruled that the search
was made pursuant to routine airport security procedure, which is allowed under
Section 9 of Republic Act No. 6235. This constitutes another exception to the
proscription against warrantless searches and seizures. In the said provision,
passengers are subject to search for prohibited materials or substances. To limit
the action of the airport security personnel to simply refusing her entry into the
aircraft and sending her home, and thereby depriving them of the ability and
facility to act accordingly, including to further search without warrant, in light of
such circumstances, would be to sanction impotence and ineffectiveness in law
enforcement, to the detriment of society. Thus, the strip search in the ladies' room
was justified under the circumstances.
The search conducted on appellant resulted in the discovery and recovery of three
packages containing shabu. Such warrantless search and seizure was legal. Armed
with the knowledge that appellant was committing a crime, the airport security
personnel and police authorities were duty-bound to arrest her. Her subsequent
arrest without a warrant was justified, since it was effected upon the discovery and
recovery of shabu in her person flagrante delicto.
SYLLABUS
1. POLITICAL LAW; CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHT
AGAINST UNREASONABLE SEARCHES AND SEIZURES; THE
CONSTITUTION BARS STATE INTRUSIONS TO A PERSON'S BODY,
PERSONAL EFFECTS OR RESIDENCE EXCEPT THRU A VALID SEARCH
WARRANT. What constitutes a reasonable or unreasonable search in any
particular case is a judicial question, determinable from a consideration of the
circumstances involved. The rule is that the Constitution bars State intrusions to a
person's body, personal effects or residence except if conducted by virtue of a
valid search warrant issued in compliance with the procedure outlined in the
Constitution and reiterated in the Rules of Court.
2. ID.; ID.; ID.; ID.; ID.; EXCEPTIONS TO RULE. The interdiction against
warrantless searches and seizures is not absolute. The recognized exceptions
established by jurisprudence are (1) search of moving vehicles; (2) seizure in plain
view; (3) customs searches; (4) waiver or consented searches; (5) stop and frisk
situations (Terry search); and (6) search incidental to a lawful arrest.
3. ID.; ID.; ID.; ID.; ID.; ID.; SEARCH INCIDENTAL TO A LAWFUL
ARREST; THE LAW REQUIRES THAT THERE BE FIRST A LAWFUL
ARREST BEFORE A SEARCH CAN BE MADE. SUSAN's arrest did not
precede the search. When the metal detector alarmed while SUSAN was passing
through it, the lady frisker on duty forthwith made a pat down search on the
former. In the process, the latter felt a bulge on SUSAN's abdomen. The strip
search that followed was for the purpose of ascertaining what were the packages
concealed on SUSAN's body. If ever at the time SUSAN was deprived of her will
and liberty, such restraint did not amount to an arrest. Under Section 1 of Rule
113 of the Revised Rules of Criminal Procedure, as amended, arrest is the "taking
of a person into custody in order that he may be bound to answer for the
commission of an offense." As pointed out by the appellant, prior to the strip
search in the ladies' room, the airport security personnel had no knowledge yet of
what were hidden on SUSAN's body; hence, they did not know yet whether a
crime was being committed. It was only after the strip search upon the discovery
104
by the police officers of the white crystalline substances inside the packages,
which they believed to be shabu, that SUSAN was arrested. The search cannot,
therefore, be said to have been done incidental to a lawful arrest. In a search
incidental to a lawful arrest, the law requires that there be first a lawful arrest
before a search can be made; the process cannot be reversed.
4. ID.; ID.; ID.; ID.; ID.; ID.; STOP AND FRISK SITUATIONS OR TERRY
SEARCH, DEFINED. The Terry search or the "stop and frisk" situation refers
to a case where a police officer approaches a person who is acting suspiciously,
for purposes of investigating possibly criminal behavior in line with the general
interest of effective crime prevention and detection. To assure himself that the
person with whom he is dealing is not armed with a weapon that could
unexpectedly and fatally be used against him, he could validly conduct a carefully
limited search of the outer clothing of such person to discover weapons which
might be used to assault him.
5. ID.; ID.; ID.; ID.; ID.; ID.; SEARCH MADE PURSUANT TO ROUTINE
AIRPORT SECURITY PROCEDURE; SEARCH OF PROHIBITED
MATERIALS OR SUBSTANCES; CASE AT BAR. In the present case, the
search was made pursuant to routine airport security procedure, which is allowed
under Section 9 of Republic Act No. 6235 reading as follows: "SEC. 9. Every
ticket issued to a passenger by the airline or air carrier concerned shall contain
among others the following condition printed thereon: 'Holder hereof and his
hand-carried luggage(s) are subject to search for, and seizure of, prohibited
materials or substances. Holder refusing to be searched shall not be allowed to
board the aircraft,' which shall constitute a part of the contract between the
passenger and the air carrier." This constitutes another exception to the
proscription against warrantless searches and seizures. As admitted by SUSAN
and shown in Annex "D" of her Brief, the afore-quoted provision is stated in the
"Notice to All Passengers" located at the final security checkpoint at the departure
lounge. From the said provision, it is clear that the search, unlike in the Terry
search, is not limited to weapons. Passengers are also subject to search for
prohibited materials or substances. . . . To limit the action of the airport security
personnel to simply refusing her entry into the aircraft and sending her home (as
suggested by appellant), and thereby depriving them of "the ability and facility to
act accordingly, including to further search without warrant, in light of such
circumstances, would be to sanction impotence and ineffectiveness in law
enforcement, to the detriment of society." Thus, the strip search in the ladies'
room was justified under the circumstances. TAIcaD
6. STATUTORY CONSTRUCTION; STARE DECISIS ET NON QUIETA
MOVERE; WHEN THE COURT HAS ONCE LAID DOWN A PRINCIPLE OF
LAW AS APPLICABLE TO CERTAIN STATE OF FACTS, IT MUST
ADHERE TO THAT PRINCIPLE AND APPLY IT TO ALL FUTURE CASES
WHERE THE FACTS ARE SUBSTANTIALLY THE SAME. The maxim
stare decisis et non quieta movere invokes adherence to precedents and
mandates not to unsettle things which are established. When the court has once
laid down a principle of law as applicable to a certain state of facts, it must adhere
to that principle and apply it to all future cases where the facts are substantially
the same.
7. REMEDIAL LAW; CRIMINAL PROCEDURE; ARREST WITHOUT
WARRANT, WHEN LAWFUL; CASE AT BAR. Section 5, Rule 113 of the
Rules of Court, as amended, provides: "SEC. 5. Arrest without warrant;when
lawful. A peace officer or a private person may, without a warrant, arrest a
person: (a) When, in his presence, the person to be arrested has committed, is
actually committing, or is attempting to commit an offense"; . . . The present case
falls under paragraph (a) of the afore-quoted Section. The search conducted on
SUSAN resulted in the discovery and recovery of three packages containing white
crystalline substances, which upon examination yielded positive results for
methamphetamine hydrochloride or shabu. As discussed earlier, such warrantless
search and seizure were legal. Armed with the knowledge that SUSAN was
committing a crime, the airport security personnel and police authorities were
duty-bound to arrest her. As held in People v. Johnson, her subsequent arrest
without a warrant was justified, since it was effected upon the discovery and
recovery of shabu in her person flagrante delicto.
8. POLITICAL LAW; CONSTITUTIONAL LAW; BILL OF RIGHTS;
CUSTODIAL INVESTIGATION, DEFINED; RIGHT TO COUNSEL
AFFORDED AN ACCUSED UNDER CUSTODIAL INVESTIGATION, NOT
VIOLATED IN CASE AT BAR. The rights provided in Section 12, Article III
of the Constitution may be invoked only when a person is under "custodial
investigation" or is "in custody interrogation." Custodial investigation refers to the
"questioning initiated by law enforcement officers after a person has been taken
into custody or otherwise deprived of his freedom of action in any significant
way." This presupposes that he is suspected of having committed a crime and that
the investigator is trying to elicit information or a confession from him. And the
right to counsel attaches upon the start of such investigation. The objective is to
prohibit "incommunicado" interrogation of individuals in a police-dominated
atmosphere, resulting in self-incriminating statements without full warnings of
constitutional rights. In this case, as testified to by the lone witness for the
defense, SPO2 Jerome Cause, no custodial investigation was conducted after
SUSAN's arrest. She affixed her signature to the receipt of the articles seized from
her, but before she did so, she was told that she had the option to sign or not to
sign. it. In any event, her signature to the packages was not relied upon by the
105
prosecution to prove its case. Moreover, no statement was taken from her during
her detention and used in evidence against her. Hence, her claim of violation of
her right to counsel has no leg to stand on.
9. REMEDIAL LAW; EVIDENCE; ADMISSIBILITY OF EVIDENCE;
HEARSAY RULE; A MEDICAL REPORT WHICH IS NOT PROPERLY
IDENTIFIED IS NOT ADMISSIBLE IN EVIDENCE. SUSAN assails, on the
ground of violation of the hearsay rule, the admission of the medical report on the
physical and medical examination conducted upon appellant's request, . . . The
admission of the questioned document was erroneous because it was not properly
identified. Nevertheless, even without the medical report, appellant's conviction
will stand, as the court's finding of guilt was not based on that document.
TEcCHD
10. CRIMINAL LAW; REPUBLIC ACT NO. 6425 (THE DANGEROUS
DRUGS ACT OF 1972); PENALTY FOR VIOLATION THEREOF. Sections
16 and 20 of Article III of the Dangerous Drugs Act of 1972 (REPUBLIC ACT
NO. 6425), as amended, provides: "SEC. 16. Possession or Use of Regulated
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 shall possess or use any regulated drug without the corresponding license or
prescription, subject to the provisions of Section 20 hereof . . . . SEC. 20.
Application of Penalties, Confiscation and Forfeiture of the Proceeds or
Instruments of the Crime. The penalties for offenses under Sections 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 [are] in any of the following quantities:
. . . 3. 200 grams or more of shabu or methylamphetamine hydrochloride." There
being no aggravating nor mitigating circumstance, the proper penalty is reclusion
perpetua pursuant to Article 63(2) of the Revised Penal Code. As regards the fine,
courts may fix any amount within the limits established by law. For possession of
regulated drugs, the law fixes the range of the fine from P500,000 to P10 million.
In view of the net weight of methamphetamine hydrochloride found in the
possession of SUSAN, the trial court's imposition of fine in the amount of P1
million is well within the range prescribed by law.
11. REMEDIAL LAW; CRIMINAL PROCEDURE; SEARCH AND SEIZURE;
PERSONAL PROPERTY TO BE SEIZED; PROPERTIES NOT INCLUDED
THEREIN SHALL BE RETURNED TO ACCUSED. Section 3 of Rule 126 of
the Revised Rules of Criminal Procedure authorizes the confiscation of the
following: "SEC. 3. Personal property to be seized. A search warrant may be
issued for the search and seizure of personal property: (a) Subject of the offense;
(b) Stolen or embezzled and other proceeds, or fruits of the offense; or (c) Used or
intended to be used as the means of committing an offense. Clearly, the seizure of
SUSAN's passport, plane tickets, and girdles exceeded the limits of the afore-
quoted provision. They, therefore, have to be returned to her. SaIACT
DECISION
DAVIDE, JR., C.J p:
Appellant Susan Canton (hereafter SUSAN) was charged before the Regional
Trial Court of Pasay City with the violation of Section 16 of Article III of the
Dangerous Drugs Act of 1972 (REPUBLIC ACT NO. 6425), as amended, under
an Information 1 whose accusatory portion reads as follows:
That on February 12, 1998 at the Ninoy Aquino International
Airport, and within the jurisdiction of this Honorable Court,
the above named accused did then and there willfully,
unlawfully and feloniously has in her possession NINE
HUNDRED NINETY EIGHT POINT TWO EIGHT
HUNDRED ZERO NINE (998.2809) GRAMS of
methamphetamine hydrochloride, a regulated drug, without
the corresponding prescription or license.
CONTRARY TO LAW.
The case was docketed as Criminal Case No. 98-0189 and raffled to Branch 110
of said court.
SUSAN entered a plea of not guilty upon her arraignment.
At the trial, the prosecution presented as witnesses Forensic Chemist Julieta
Flores, lady frisker Mylene Cabunoc, and SPO4 Victorio de los Reyes.
For its part, the defense presented SPO2 Jerome Cause as its witness and had
prosecution witness Mylene Cabunoc recalled to be presented as hostile witness.
It opted not to let SUSAN take the witness stand.
106
The evidence for the prosecution established that on 12 February 1998, at about
1:30 p.m., SUSAN was at the Ninoy Aquino International Airport (NAIA), being
a departing passenger bound for Saigon, Vietnam. 2 When she passed through the
metal detector booth, a beeping sound was emitted. Consequently, Mylene
Cabunoc, a civilian employee of the National Action Committee on Hijacking and
Terrorism (NACHT) and the frisker on duty at that time, called her attention,
saying "Excuse me ma'am, can I search you?" 3 Upon frisking SUSAN, Mylene
felt something bulging at her abdominal area. Mylene inserted her hand under the
skirt of SUSAN, pinched the package several times and noticed that the package
contained what felt like rice granules. 4 When Mylene passed her hand, she felt
similar packages in front of SUSAN's genital area and thighs. She asked SUSAN
to bring out the packages, but the latter refused and said: "Money, money only."
Mylene forthwith reported the matter to SPO4 Victorio de los Reyes, her
supervisor on duty. 5
SPO4 De los Reyes instructed Mylene to call Customs Examiner Lorna Jalac and
bring SUSAN to a comfort room for a thorough physical examination. Upon
further frisking in the ladies' room, Mylene touched something in front of
SUSAN's sex organ. She directed SUSAN to remove her skirt, girdles and panty.
SUSAN obliged. Mylene and Lorna discovered three packages individually
wrapped and sealed in gray colored packing tape, which SUSAN voluntarily
handed to them. 6 The first was taken from SUSAN's abdominal area; the second,
from in front of her genital area; and the third, from her right thigh. 7 Mylene
turned over the packages to SPO4 De los Reyes. 8 The latter forthwith informed
his superior officer Police Superintendent Daniel Santos about the incident.
Together with SUSAN, they brought the gray plastic packs to the customs
examination table, opened the same and found that they contained white
crystalline substances 9 which, when submitted for laboratory examination,
yielded positive results for methamphetamine hydrochloride or shabu, a regulated
drug. 10
For the defense, SPO2 Jerome Cause, an investigator of the First Regional
Aviation Office, testified that no investigation was ever conducted on SUSAN. 11
However, SUSAN signed a receipt of the following articles seized from her: (1)
three bags of methamphetamine hydrochloride or shabu approximately 1,100
grams; (2) one American passport bearing Number 700389994; (3) one
Continental Micronesia plane ticket with stock control number 0414381077; and
(4) two panty girdles. 12 He said that he informed SUSAN of her constitutional
rights but admitted that she did not have a counsel when she signed the receipt. 13
Yet he told her that she had the option to sign or not to sign the receipt. 14
When recalled as witness for the defense, Mylene merely reiterated the
circumstances surrounding the arrest and search of SUSAN and the seizure of the
prohibited items found on her person. 15
After consideration of the evidence presented, the trial court rendered a decision
16 finding SUSAN guilty beyond reasonable doubt of the offense of violation of
Section 16 of Article III of REPUBLIC ACT NO. 6425, as amended, and
sentencing her to suffer the penalty of reclusion perpetua and to pay a fine of P1
million.
SUSAN filed a Motion for Reconsideration and/or New Trial, 17 alleging therein
that the trial judge erred in (1) giving weight to the medical certificate executed by
a certain Dr. Ma. Bernadette Arcena because it was not presented in court nor
marked or admitted, and is therefore hearsay evidence; (2) upholding the
presumption of regularity in the performance of duty of police officers, since lady
frisker Mylene Cabunoc is not even a police officer; (3) making statements which
gave the impression that the burden of proof was shifted to the accused; and (4)
deliberately ignoring the decisive issue of how the evidence was secured. SUSAN
also assailed the propriety of the search and seizure without warrant on the ground
that the seized items were not in plain view. Furthermore, alleging bias and
prejudice on the part of the trial judge, SUSAN filed a motion to inhibit Judge
Porfirio G. Macaraeg from resolving the Motion for Reconsideration and/or New
Trial. 18
After conducting a hearing on 24 November 2000 to resolve appellant's Motion
for Reconsideration and/or New Trial, as well as the Motion to Inhibit the Judge,
the trial court issued an order 19 on 26 November 2001 denying the motions.
According to the trial judge (1) he explained to SUSAN's counsel the effects of
the filing of a motion for reconsideration, but the latter chose to magnify the
judge's statement which was uttered in jest; (2) SUSAN's conviction was not
based on the medical report which was not presented in court; (3) there was no
violation of SUSAN's constitutional rights because she was never interrogated
during her detention without counsel; and (4) the specimens seized from her were
found after a routine frisk at the airport and were therefore acquired legitimately
pursuant to airport security procedures.
Unsatisfied with the decision of the trial court, SUSAN seasonably appealed to us,
imputing to the trial court the following errors: (1) in justifying the warrantless
search against her based on the alleged existence of probable cause; (2) in holding
that she was caught flagrante delicto and that the warrantless search was
incidental to a lawful arrest; (3) in not ruling that the frisker went beyond the
limits of the "Terry search" doctrine; (4) in not ruling that SUSAN was under
107
custodial investigation without counsel; (5) in admitting to the records of the case
the report of Dr. Ma. Bernadette Arcena, which was not testified on or offered in
evidence, and using the same in determining her guilt; (6) in justifying under the
rule on judicial notice its cognizance of the medical report that has not been
offered in evidence; and (7) in applying the ruling in People v. Johnson. 20
For assigned errors nos. 1 and 2, SUSAN asserts that the strip search conducted
on her in the ladies' room was constitutionally infirmed because it was not
"incidental to an arrest." The arrest could not be said to have been made before the
search because at the time of the strip search, the arresting officers could not have
known what was inside the plastic containers hidden on her body, which were
wrapped and sealed with gray tape. At that point then, they could not have
determined whether SUSAN was actually committing a crime. The strip search
was therefore nothing but a fishing expedition. Verily, it is erroneous to say that
she was caught flagrante delicto and that the warrantless search was incidental to
a lawful arrest.
For assigned error no. 3, SUSAN maintains that, following the doctrine
enunciated in Terry v. Ohio, 21 such stop and frisk search should have been
limited to the patting of her outer garments in order to determine whether she was
armed or dangerous and therefore a threat to the security of the aircraft.
For assigned error no. 4, SUSAN alleges that from the moment frisker Mylene felt
a package at her abdominal area, started inquiring about the contents thereof,
detained her, and decided to submit her to a strip search in the ladies' room, she
was under custodial investigation without counsel, which was violative of Section
12, Article III of the Constitution.
For assigned errors nos. 5 and 6, SUSAN assails the propriety of the admission of
the medical report executed by Dr. Ma. Bernadette Arcena on the ground that it
was neither testified on nor offered in evidence.
Lastly, SUSAN questions the application of People v. Johnson 22 because of its
sweeping statement allowing searches and seizures of departing passengers in
airports in view of the gravity of the safety interests involved. She stresses that the
pertinent case should have been Katz v. United States, 23 which upholds the
Fourth Amendment of the United States of America that "protects people and not
places."
In its Appellant's Brief, the Office of the Solicitor General (OSG) declares that
SUSAN was found flagrante delicto in possession of a regulated drug without
being authorized by law. Thus, the case falls squarely within the exception, being
a warrantless search incidental to a lawful arrest. Moreover, SUSAN voluntarily
submitted herself to the search and seizure when she allowed herself to be frisked
and brought to the comfort room for further inspection by airport security
personnel. It likewise maintains that the methamphetamine hydrochloride seized
from SUSAN during the routine frisk at the airport was acquired legitimately
pursuant to airport security procedures.
Anent the admission of the medical certificate issued by Dr. Ma. Bernadette
Arcena, the OSG argues that SUSAN's conviction was not solely based on the
questioned document but also on the fact that she was caught flagrante delicto in
possession of a regulated drug without being authorized by law. Consequently, it
supports SUSAN's conviction but recommends the reduction of the fine from P1
million to P100,000.
We affirm SUSAN's conviction.
We do not agree that the warrantless search and subsequent seizure of the
regulated drugs, as well as the arrest of SUSAN, were violative of her
constitutional rights.
Sections 2 and 3(2) of Article III of the 1987 Constitution provides:
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.
xxx xxx xxx
Sec. 3 . . .
108
 (2) Any evidence obtained in violation of this or the
preceding section shall be inadmissible for any purpose in any
proceeding.
What constitutes a reasonable or unreasonable search in any particular case is a
judicial question, determinable from a consideration of the circumstances
involved. The rule is that the Constitution bars State intrusions to a person's body,
personal effects or residence except if conducted by virtue of a valid search
warrant issued in compliance with the procedure outlined in the Constitution and
reiterated in the Rules of Court. 24
The interdiction against warrantless searches and seizures is not absolute. The
recognized exceptions established by jurisprudence are (1) search of moving
vehicles; (2) seizure in plain view; (3) customs searches; (4) waiver or consented
searches; (5) stop and frisk situations (Terry search); and (6) search incidental to a
lawful arrest. 25
I. The search conducted on SUSAN was not incidental to a lawful
arrest.
We do not agree with the trial court and the OSG that the search and seizure
conducted in this case were incidental to a lawful arrest. SUSAN's arrest did not
precede the search. When the metal detector alarmed while SUSAN was passing
through it, the lady frisker on duty forthwith made a pat down search on the
former. In the process, the latter felt a bulge on SUSAN's abdomen. The strip
search that followed was for the purpose of ascertaining what were the packages
concealed on SUSAN's body. If ever at the time SUSAN was deprived of her will
and liberty, such restraint did not amount to an arrest. Under Section 1 of Rule
113 of the Revised Rules of Criminal Procedure, as amended, arrest is the "taking
of a person into custody in order that he may be bound to answer for the
commission of an offense."
As pointed out by the appellant, prior to the strip search in the ladies' room, the
airport security personnel had no knowledge yet of what were hidden on SUSAN's
body; hence, they did not know yet whether a crime was being committed. It was
only after the strip search upon the discovery by the police officers of the white
crystalline substances inside the packages, which they believed to be shabu, that
SUSAN was arrested. The search cannot, therefore, be said to have been done
incidental to a lawful arrest. In a search incidental to a lawful arrest, the law
requires that there be first a lawful arrest before a search can be made; the process
cannot be reversed. 26
II. The scope of a search pursuant to airport security procedure is
not confined only to search for weapons under the "Terry
search" doctrine.
The Terry search or the "stop and frisk" situation refers to a case where a police
officer approaches a person who is acting suspiciously, for purposes of
investigating possibly criminal behavior in line with the general interest of
effective crime prevention and detection. To assure himself that the person with
whom he is dealing is not armed with a weapon that could unexpectedly and
fatally be used against him, he could validly conduct a carefully limited search of
the outer clothing of such person to discover weapons which might be used to
assault him. 27
In the present case, the search was made pursuant to routine airport security
procedure, which is allowed under Section 9 of Republic Act No. 6235 reading as
follows:
SEC. 9. Every ticket issued to a passenger by the airline or air
carrier concerned shall contain among others the following
condition printed thereon: "Holder hereof and his hand-
carried luggage(s) are subject to search for, and seizure of,
prohibited materials or substances. Holder refusing to be
searched shall not be allowed to board the aircraft," which
shall constitute a part of the contract between the passenger
and the air carrier.
This constitutes another exception to the proscription against warrantless searches
and seizures. As admitted by SUSAN and shown in Annex "D" of her Brief, the
afore-quoted provision is stated in the "Notice to All Passengers" located at the
final security checkpoint at the departure lounge. From the said provision, it is
clear that the search, unlike in the Terry search, is not limited to weapons.
Passengers are also subject to search for prohibited materials or substances.
In this case, after the metal detector alarmed SUSAN consented to be frisked,
which resulted in the discovery of packages on her body. It was too late in the day
for her to refuse to be further searched because the discovery of the packages
whose contents felt like rice granules, coupled by her apprehensiveness and her
obviously false statement that the packages contained only money, aroused the
suspicion of the frisker that SUSAN was hiding something illegal. It must be
repeated that R.A. No. 6235 authorizes search for prohibited materials or
substances. To limit the action of the airport security personnel to simply refusing
her entry into the aircraft and sending her home (as suggested by appellant), and
109
thereby depriving them of "the ability and facility to act accordingly, including to
further search without warrant, in light of such circumstances, would be to
sanction impotence and ineffectivity in law enforcement, to the detriment of
society." 28 Thus, the strip search in the ladies' room was justified under the
circumstances.
III. The ruling in People v. Johnson is applicable to the instant case.
The case of People v. Johnson, which involves similar facts and issues, finds
application to the present case. That case involves accused-appellant Lelia
Johnson, who was also a departing passenger bound for the United States via
Continental Airlines CS-912. Olivia Ramirez was then the frisker on duty, whose
task was to frisk departing passengers, employees and crew to check for weapons,
bombs, prohibited drugs, contraband goods and explosives. When Olivia frisked
Leila, the former felt something hard on the latter's abdominal area. Upon inquiry,
Leila explained that she needed to wear two panty girdles, as she had just
undergone an operation as a result of an ectopic pregnancy. Not satisfied with the
explanation, Olivia reported the matter to her superior, who then directed her to
take Leila to the nearest women's room for inspection. In the comfort room, Leila
was asked "to bring out the thing under her girdle." She acceded and brought out
three plastic packs which contained a total of 580.2 grams of methamphetamine
hydrochloride or shabu. This Court ruled that the packs of "methamphetamine
hydrochloride" seized during the routine frisk at the airport was acquired
legitimately pursuant to airport security procedures and are therefore admissible in
evidence against Leila. Corollarily, her subsequent arrest, although likewise
without warrant, was justified, since it was effected upon the discovery and
recovery of shabu in her person flagrante delicto. The Court held in this wise:
Persons may lose the protection of the search and seizure
clause by exposure of their persons or property to the public
in a manner reflecting a lack of subjective expectation of
privacy, which expectation society is prepared to recognize as
reasonable. Such recognition is implicit in airport security
procedures. With increased concern over airplane hijacking
and terrorism has come increased security at the nation's
airports. Passengers attempting to board an aircraft routinely
pass through metal detectors; their carry-on baggage as well
as checked luggage are routinely subjected to x-ray scans.
Should these procedures suggest the presence of suspicious
objects, physical searches are conducted to determine what
the objects are. There is little question that such searches are
reasonable, given their minimal intrusiveness, the gravity of
the safety interests involved, and the reduced privacy
expectations associated with airline travel. Indeed, travelers
are often notified through airport public address systems,
signs, and notices in their airline tickets that they are subject
to search and, if any prohibited materials or substances are
found, such would be subject to seizure. These
announcements place passengers on notice that ordinary
constitutional protections against warrantless searches and
seizures do not apply to routine airport procedures.
SUSAN's reliance on Katz v. U.S. 29 is misplaced. The facts and circumstances of
that case are entirely different from the case at bar. In that case, the accused was
convicted in the United States District Court for the Southern District of
California of transmitting wagering information by telephone. During the trial, the
government was permitted, over the accused's objection, to introduce evidence of
accused's end of telephone conversations, which was overheard by FBI agents
who had attached an electronic listening and recording device to the outside of the
public telephone booth from which he placed his calls. The Court of Appeals for
the Ninth Circuit affirmed the conviction. On certiorari, however, the Supreme
Court of the United States of America reversed the decision, ruling that antecedent
judicial authorization, which was not given in the instant case, was a
constitutional precondition of the kind of electronic surveillance involved. It ruled
that what a person knowingly exposes to the public, even in his own house or
office, is not a subject the Fourth Amendment protection, but what he seeks to
preserve as private, even in an area accessible to the public, may be
constitutionally protected.
The maxim stare decisis et non quieta movere invokes adherence to
precedents and mandates not to unsettle things which are established. When the
court has once laid down a principle of law as applicable to a certain state of facts,
it must adhere to that principle and apply it to all future cases where the facts are
substantially the same. 30 There being a disparity in the factual milieu of Katz v.
U.S. and the instant case, we cannot apply to this case the ruling in Katz.
IV. The appellant, having been caught flagrante delicto, was
lawfully arrested without a warrant.
Section 5, Rule 113 of the Rules of Court, as amended, provides:
110
 SEC. 5. Arrest without warrant; when lawful. A peace
officer or a private person may, without a warrant, arrest a
person:
(a) When, in his presence, the person to be arrested has
committed, is actually committing, or is attempting
to commit an offense;
(b) When an offense has just been committed and he has
probable cause to believe based on personal
knowledge of facts or circumstances that the person
to be arrested has committed it; and
(c) When the person to be arrested is a prisoner who has
escaped from a penal establishment or place where
he is serving final judgment or is temporarily
confined while his case is pending, or has escaped
while being transferred from one confinement to
another.
In cases failing 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 present case falls under paragraph (a) of the afore-quoted Section. The search
conducted on SUSAN resulted in the discovery and recovery of three packages
containing white crystalline substances, which upon examination yielded positive
results for methamphetamine hydrochloride or shabu. As discussed earlier, such
warrantless search and seizure were legal. Armed with the knowledge that
SUSAN was committing a crime, the airport security personnel and police
authorities were duty-bound to arrest her. As held in People v. Johnson, her
subsequent arrest without a warrant was justified, since it was effected upon the
discovery and recovery of shabu in her person flagrante delicto.
V. The constitutional right to counsel afforded an accused under
custodial investigation was not violated.
Entrenched is the rule that the rights provided in Section 12, Article III of the
Constitution may be invoked only when a person is under "custodial
investigation" or is "in custody interrogation." 31 Custodial investigation refers to
the "questioning initiated by law enforcement officers after a person has been
taken into custody or otherwise deprived of his freedom of action in any
significant way." 32 This presupposes that he is suspected of having committed a
crime and that the investigator is trying to elicit information or a confession from
him. 33 And the right to counsel attaches upon the start of such investigation. 34
The objective is to prohibit "incommunicado" interrogation of individuals in a
police-dominated atmosphere, resulting in self-incriminating statements without
full warnings of constitutional rights. 35
In this case, as testified to by the lone witness for the defense, SPO2 Jerome
Cause, no custodial investigation was conducted after SUSAN's arrest. She
affixed her signature to the receipt of the articles seized from her, but before she
did so, she was told that she had the option to sign or not to sign it. In any event,
her signature to the packages was not relied upon by the prosecution to prove its
case. Moreover, no statement was taken from her during her detention and used in
evidence against her. 36 Hence, her claim of violation of her right to counsel has
no leg to stand on. AIDSTE
VI. The admission of the medical report was erroneous.
SUSAN assails, on the ground of violation of the hearsay rule, the admission of
the medical report on the physical and medical examination conducted upon
appellant's request, which contained the following:
On subsequent examinations, she was seen behaved and
cooperative. She related that she was an illegitimate daughter,
married, but divorced in 1995. She verbalized, "I gamble like
an addict. I gambled since I was young and I lost control of
myself when I played cards. When I lost control, I want my
money back. I owe other people lots of money. I lost all the
cash of my husband. This is the first time I carried shabu. I
need the money." She denied having any morbid thoughts and
perceptual disturbances. (Italics supplied).
This argument is meritorious. The admission of the questioned document was
erroneous because it was not properly identified. Nevertheless, even without
the medical report, appellant's conviction will stand, as the court's finding of
guilt was not based on that document.
VII. SUSAN's conviction and the penalty imposed on her are
correct.
111
Having found the warrantless search and seizure conducted in this case to be
valid, we do not hesitate to rule that that the three packages of shabu recovered
from SUSAN are admissible in evidence against her. Supported by this evidence
and the testimonies of the prosecution witnesses, her conviction must inevitably
be sustained.
Section 3 of Rule 126 of the Revised Rules of Criminal Procedure authorizes the
confiscation of the following:
SEC. 3. Personal property to be seized. A search warrant
may be issued for the search and seizure of personal property:

Sections 16 and 20 of Article III of the Dangerous Drugs Act of 1972
(REPUBLIC ACT NO. 6425), as amended, provides:
SEC. 16. Possession or Use of Regulated 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 shall possess or use any
regulated drug without the corresponding license or
prescription, subject to the provisions of Section 20 hereof.
xxx xxx xxx
(a) Subject of the offense;
(b) Stolen or embezzled and other proceeds, or fruits
of the offense; or
(c) Used or intended to be used as the means of
committing an offense.
Clearly, the seizure of SUSAN's passport, plane tickets, and girdles exceeded the
limits of the afore-quoted provision. They, therefore, have to be returned to her.
37

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 IN VIEW OF ALL THE FOREGOING, the judgment of the Regional Trial Court
this Act shall be applied if the dangerous drugs involved [are] of Pasay City, Branch 110, in Criminal Case No. 98-0189 finding appellant
in any of the following quantities: SUSAN CANTON guilty beyond reasonable doubt of the violation of Section 16,
Article III of the Dangerous Act of 1972 (REPUBLIC ACT NO. 6425), as
amended, and sentencing her to suffer the penalty of reclusion perpetua and to
xxx xxx xxx
pay a fine of One Million Pesos (P1,000,000) and the costs is hereby AFFIRMED.
The appellant's passport, plane tickets, and girdles are hereby ordered to be
3. 200 grams or more of shabu or returned to her. DaESIC
methylamphetamine hydrochloride . . .
Costs de oficio.
There being no aggravating nor mitigating circumstance, the proper penalty is
reclusion perpetua pursuant to Article 63(2) of the Revised Penal Code.
SO ORDERED.

As regards the fine, courts may fix any amount within the limits established by
Vitug, Ynares-Santiago, Carpio and Azcuna, JJ., concur.
law. For possession of regulated drugs, the law fixes the range of the fine from
P500,000 to P10 million. In view of the net weight of methamphetamine
hydrochloride found in the possession of SUSAN, the trial court's imposition of ||| (People v. Canton, G.R. No. 148825, December 27, 2002)
fine in the amount of P1 million is well within the range prescribed by law.

VIII. The other items seized from the appellant should be returned to
her.

112
SECOND DIVISION
[G.R. No. 119220. September 20, 1996.]
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs. NILO SOLAYAO, accused-appellant.
The Solicitor General for plaintiff-appellee.
Violeta M. Parea for accused-appellant.
SYLLABUS
1. CRIMINAL LAW; P.D. No. 1866; ILLEGAL POSSESSION OF FIREARM
AND AMMUNITION; ELEMENTS THEREOF. This Court, in the case of
People v. Lualhati ruled that 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.
2. POLITICAL LAW; CONSTITUTIONAL LAW; RIGHTS OF THE
ACCUSED; RIGHT AGAINST UNREASONABLE SEARCHES AND
SEIZURES; WARRANTLESS SEARCH BEFORE MAKING AN ARREST
JUSTIFIED BY SUSPICIOUS CONDUCT OF ACCUSED; CASE AT BENCH.
Accused appellant argued that the trial court erred in admitting the subject
firearm in evidence as it was the product of an unlawful warrantless search. He
maintained that the search made on his person violated his constitutional right to
be secure in his person and effects against unreasonable searches and seizures.
Not only was the search made without a warrant but it did not fall under any of the
circumstances enumerated under Section 5, Rule 113 of the 1985 Rules on
Criminal Procedure. . . . Under the circumstances obtaining in this case, however,
accused-appellant's arguments are hardly tenable. He and his companions'
drunken actuations aroused the suspicion of SPO3 Nio's group. After SPO3 Nio
told accused-appellant not to run away, the former identified himself as a
government agent. The peace officers did not know that he had committed, or was
actually committing, the offense of illegal possession of firearm. Tasked with
verifying the report that there were armed men roaming in the barangays
surrounding Caibiran, their attention was understandably drawn to the group that
had aroused their suspicion. They could not have known that the object wrapped
in coconut leaves which accused-appellant was carrying hid a firearm. As with
Posadas, where this Court ruled that the search and seizure brought about by the
suspicious conduct of Posadas himself can be likened to a "stop and frisk"
situation. There was probable cause to conduct a search even before an arrest
could be made. . . ., the case at bar constitutes an instance where a search and
seizure may be effected without first making an arrest. There was justifiable cause
to "stop and frisk" accused-appellant when his companions fled upon seeing the
government agents. Under the circumstances, the government agents could not
possibly have procured a search warrant first. Thus, there was no violation of the
constitutional guarantee against unreasonable searches and seizures. Nor was
there error on the part of the trial court when it admitted the homemade firearm as
evidence.
3. REMEDIAL LAW; EVIDENCE; PROSECUTION MUST RELY ON
STRENGTH OF ITS OWN EVIDENCE; LACK OF LICENSE TO POSSESS
FIREARM NOT SUFFICIENTLY ESTABLISHED IN CASE AT BENCH.
As to the question of whether or not the prosecution was able to prove the second
element, that is, the absence of a license or permit to possess the subject firearm,
this Court agrees with the Office of the Solicitor General which pointed out that
the prosecution failed to prove that accused-appellant lacked the necessary permit
or license to possess the subject firearm. . . . This Court agrees with the argument
of the Solicitor General that "while the prosecution was able to establish the fact
that the subject firearm was seized by the police from the possession of appellant,
without the latter being able to present any license or permit to possess the same,
such fact alone is not conclusive proof that he was not lawfully authorized to carry
such firearm. In other words, such fact does not relieve the prosecution from its
duty to establish the lack of a license or permit to carry the firearm by clear and
convincing evidence, like a certification from the government agency concerned."
Putting it differently, "when a negative is averred in a pleading, or a plaintiff's
case depends upon the establishment of a negative, and the means of proving the
fact are equally within the control of each party, then the burden of proof is upon
the party averring the negative." In this case, a certification from the Firearms and
Explosives Unit of the Philippine National Police that accused-appellant was not a
licensee of a firearm of any kind or caliber would have sufficed for the
prosecution to prove beyond reasonable doubt the second element of the crime of
illegal possession of firearm.
4. ID.; ID.; EXTRAJUDICIAL ADMISSION BY ACCUSED NOT
SUFFICIENT TO PROVE LACK OF A LICENSE; CASE AT BENCH. In the
case at bar, the prosecution was only able to prove by testimonial evidence that
accused-appellant admitted before Police Officer Nio at the time that he was
accosted that he did not have any authority or license to carry the subject firearm
when he was asked if he had one. In other words, the prosecution relied on
113
accused-appellant's admission to prove the second element. . . . By its very nature,
an "admission is the mere acknowledgment of a fact or of circumstances from
which guilt may be inferred tending to incriminate the speaker, but not sufficient
of itself to establish his guilt." In other words, it is a "statement by defendant of
fact or facts pertinent to issues pending, in connection with proof of other facts or
circumstances, to prove guilt, but which is, of itself, insufficient to authorize
conviction." From the above principles, this Court can infer that an admission in
criminal cases is insufficient to prove beyond reasonable doubt the commission of
the crime charged. Moreover, said admission is extra-judicial in nature. As such, it
does not fall under Section 4 of Rule 129 of the Revised Rules of Court . . . . Not
being a judicial admission, said statement by accused-appellant does not prove
beyond reasonable doubt the second element of illegal possession of firearm. It
does not even establish a prima facie case. It merely bolsters the case for the
prosecution but does not stand as proof of the fact of absence or lack of a license.
DECISION
ROMERO, J p:
Accused-appellant Nilo Solayao was charged before the Regional Trial Court of
Naval, Biliran, Branch 16, with the crime of illegal possession of firearm and
ammunition 1 defined and penalized under Presidential Decree No. 1866.
The lone prosecution witness, SPO3 Jose Nio, narrated that at about
9:00 o'clock in the evening of July 9, 1992, with CAFGU members Teofilo
Llorad, Jr. and Cecilio Cenining, he went to Barangay Caulangohan,
Caibiran, Biliran. They were to conduct an intelligence patrol as required of
them by their intelligence officer to verify reports on the presence of armed
persons roaming around the barangays of Caibiran. 2
From Barangay Caulangohan, the team of Police Officer Nio
proceeded to Barangay Onion where they met the group of accused-appellant
Nilo Solayao numbering five. The former became suspicious when they
observed that the latter were drunk and that accused-appellant himself was
wearing a camouflage uniform or a jungle suit. Accused-appellant's
companions, upon seeing the government agents, fled. 3
Police Officer Nio told accused-appellant not to run away and
introduced himself as "PC," after which he seized the dried coconut leaves
which the latter was carrying and found wrapped in it a 49-inch long
homemade firearm locally known as "latong." When he asked accused-
appellant who issued him a license to carry said firearm or whether he was
connected with the military or any intelligence group, the latter answered that
he had no permission to possess the same. Thereupon, SPO3 Nio
confiscated the firearm and turned him over to the custody of the policemen
of Caibiran who subsequently investigated him and charged him with illegal
possession of firearm. 4
Accused-appellant, in his defense, did not contest the confiscation of
the shotgun but averred that this was only given to him by one of his
companions, Hermogenes Cenining, when it was still wrapped in coconut
leaves. He claimed that he was not aware that there was a shotgun concealed
inside the coconut leaves since they were using the coconut leaves as a torch.
He further claimed that this was the third torch handed to him after the others
had been used up. 5 Accused-appellant's claim was corroborated by one
Pedro Balano that he indeed received a torch from Hermogenes Cenining
which turned out to be a shotgun wrapped in coconut leaves. 6
On August 25, 1994, the trial court found accused-appellant guilty of
illegal possession of firearm under Section 1 of Presidential Decree No. 1866
and imposed upon him the penalty of imprisonment ranging from reclusion
temporalmaximum to reclusion perpetua. The trial court, having found no
mitigating but one aggravating circumstance of nighttime, sentenced accused-
appellant to suffer the prison term of reclusion perpetua with the accessory
penalties provided by law. 7 It found that accused-appellant did not contest
the fact that SPO3 Nio confiscated the firearm from him and that he had no
permit or license to possess the same. It hardly found credible accused-
appellant's submission that he was in possession of the firearm only by
accident and that upon reaching Barangay Onion, he followed four persons,
namely, Hermogenes Cenining, Antonio Sevillano, Willie Regir and Jovenito
Jaro when he earlier claimed that he did not know his companions. 8
Accused-appellant comes to this Court on appeal and assigns the
following errors:
"I. The trial court erred in admitting in evidence the
homemade firearm.
II. The trial court erred in appreciating the aggravating
circumstance of nighttime in the imposition of the
maximum penalty against the accused-appellant." 9
114
This Court, in the case of People v. Lualhati 10 ruled that 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.
In assigning the first error, accused-appellant argued that the trial
court erred in admitting the subject firearm in evidence as it was the product
of an unlawful warrantless search. He maintained that the search made on his
person violated his constitutional right to be secure in his person and effects
against unreasonable searches and seizures. Not only was the search made
without a warrant but it did not fall under any of the circumstances
enumerated under Section 5, Rule 113 of the 1985 Rules on Criminal
Procedure which provides, inter alia:
"A peace officer or a private person may, without a warrant,
arrest a person when in his presence, the person to be arrested
has committed, is actually committing, or is attempting to
commit an offense."
Hence, the search being unlawful, the homemade firearm confiscated from him is
inadmissible in evidence for being "the fruit of the poisonous tree." 11 As such,
the prosecution's case must necessarily fail and the accused-appellant acquitted.
Accused-appellant's arguments follow the line of reasoning in
People v. Cuizon, et al. 12 where this Court declared: ". . . emphasis is to be
laid on the fact that the law requires that the search be incident to a lawful
arrest, in order that the search itself may likewise be considered legal.
Therefore, it is beyond cavil that a lawful arrest must precede the search of a
person and his belongings. Were a search first undertaken, then an arrest
effected based on evidence produced by the search, both such search and
arrest would be unlawful, for being contrary to law."
Under the circumstances obtaining in this case, however, accused-
appellant's arguments are hardly tenable. He and his companions' drunken
actuations aroused the suspicion of SPO3 Nio's group, as well as the fact
that he himself was attired in a camouflage uniform or a jungle suit 13 and
that upon espying the peace officers, his companions fled. It should be noted
that the peace officers were precisely on an intelligence mission to verify
reports that armed persons were roaming around the barangays of Caibiran.
14
The circumstances in this case are similar to those obtaining in
Posadas v. Court of Appeals 15 where this Court held that "at the time the
peace officers identified themselves and apprehended the petitioner as he
attempted to flee, they did not know that he had committed, or was actually
committing the offense of illegal possession of firearm and ammunitions.
They just suspected that he was hiding something in the buri bag. They did
not know what its contents were. The said circumstances did not justify an
arrest without a warrant."
This Court, nevertheless, ruled that the search and seizure in the
Posadas case brought about by the suspicious conduct of Posadas himself can
be likened to a "stop and frisk" situation. There was probable cause to
conduct a search even before an arrest could be made.
In the present case, after SPO3 Nio told accused-appellant not to
run away, the former identified himself as a government agent. 16 The peace
officers did not know that he had committed, or was actually committing, the
offense of illegal possession of firearm. Tasked with verifying the report that
there were armed men roaming in the barangays surrounding Caibiran, their
attention was understandably drawn to the group that had aroused their
suspicion. They could not have known that the object wrapped in coconut
leaves which accused-appellant was carrying hid a firearm.
As with Posadas, the case at bar constitutes an instance where a
search and seizure may be effected without first making an arrest. There was
justifiable cause to "stop and frisk" accused-appellant when his companions
fled upon seeing the government agents. Under the circumstances, the
government agents could not possibly have procured a search warrant first.
Thus, there was no violation of the constitutional guarantee against
unreasonable searches and seizures. Nor was there error on the part of the
trial court when it admitted the homemade firearm as evidence.
As to the question of whether or not the prosecution was able to
prove the second element, that is, the absence of a license or permit to possess
the subject firearm, this Court agrees with the Office of the Solicitor General
which pointed out that the prosecution failed to prove that accused-appellant
lacked the necessary permit or license to possess the subject firearm. 17
Undoubtedly, it is the constitutional presumption of innocence that
lays such burden upon the prosecution. The absence of such license and legal
authority constitutes an essential ingredient of the offense of illegal
possession of firearm, and every ingredient or essential element of an offense
must be shown by the prosecution by proof beyond reasonable doubt. 18
In People v. Tiozon, 19 this Court said:
115
"It is true that People vs. Lubo, 101 Phil. 179 and People vs.
Ramos, 8 SCRA 758 could be invoked to support the view
that it is incumbent upon a person charged with illegal
possession of a firearm to prove the issuance to him of a
license to possess the firearm, but we are of the considered
opinion that under the provisions of Section 2, Rule 131 of
the Rules of Court which provide that in criminal cases the
burden of proof as to the offense charged lies on the
prosecution and that a negative fact alleged by the prosecution
must be proven if 'it is an essential ingredient of the offense
charged,' the burden of proof was with the prosecution in this
case to prove that the firearm used by appellant in committing
the offense charged was not properly licensed.
It cannot be denied that the lack or absence of a license is an
essential ingredient of the offense of illegal possession of a
firearm. The information filed against appellant in Criminal
Case No. 3558 of the lower court (now G.R. No. 27681)
specifically alleged that he had no 'license or permit to
possess' the .45 caliber pistol mentioned therein. Thus it
seems clear that it was the prosecution's duty not merely to
allege that negative fact but to prove it. This view is
supported by similar adjudicated cases. In U.S. vs. Tria, 17
Phil. 303, the accused was charged with 'having criminally
inscribed himself as a voter knowing that he had none of the
qualifications required to be a voter. It was there held that the
negative fact of lack of qualification to be a voter was an
essential element of the crime charged and should be proved
by the prosecution. In another case (People vs. Quebral, 68
Phil. 564) where the accused was charged with illegal practice
of medicine because he had diagnosed, treated and prescribed
for certain diseases suffered by certain patients from whom he
received monetary compensation, without having previously
obtained the proper certificate of registration from the Board
of Medical Examiners, as provided in Section 770 of the
Administrative Code, this Court held that if the subject of the
negative averment like, for instance, the act of voting without
the qualifications provided by law is an essential ingredient of
the offense charged, the prosecution has the burden of
proving the same, although in view of the difficulty of
proving a negative allegation, the prosecution, under such
circumstance, need only establish a prima facie case from the
best evidence obtainable. In the case before Us, both appellant
and the Solicitor General agree that there was not even
aprima facie case upon which to hold appellant guilty of the
illegal possession of a firearm. Former Chief Justice Moran
upholds this view as follows:
'The mere fact that the adverse party has the control
of the better means of proof of the fact alleged,
should not relieve the party making the averment of
the burden of proving it. This is so, because a party
who alleges a fact must be assumed to have acquired
some knowledge thereof, otherwise he could not
have alleged it. Familiar instance of this is the case
of a person prosecuted for doing an act or carrying
on a business, such as, the sale of liquor without a
license. How could the prosecution aver the want of
a license if it had acquired no knowledge of that
fact? Accordingly, although proof of the existence or
non-existence of such license can, with more facility,
be adduced by the defendant, it is nevertheless,
incumbent upon the party alleging the want of the
license to prove the allegation. Naturally, as the
subject matter of the averment is one which lies
peculiarly within the control or knowledge of the
accused prima facie evidence thereof on the part of
the prosecution shall suffice to cast the onus upon
him.' (6 Moran, Comments on the Rules of Court,
1963 edition, p. 8)."
Finally, the precedents cited above have been crystallized as the present governing
case law on this question. As this Court summed up the doctrine in People v.
Macagaling: 20
"We cannot see how the rule can be otherwise since it is the
inescapable duty of the prosecution to prove all the
ingredients of the offense as alleged against the accused in an
information, which allegations must perforce include any
negative element provided by the law to integrate that
offense. We have reiterated quite recently the fundamental
mandate that since the prosecution must allege all the
elements of the offense charged, then it must prove by the
requisite quantum of evidence all the elements it has thus
alleged."
116
In the case at bar, the prosecution was only able to prove by testimonial evidence
that accused-appellant admitted before Police Officer Nio at the time that he was
accosted that he did not have any authority or license to carry the subject firearm
when he was asked if he had one. 21 In other words, the prosecution relied on
accused-appellant's admission to prove the second element.
Is this admission sufficient to prove beyond reasonable doubt the
second element of illegal possession of firearm which is that accused-
appellant does not have the corresponding license? Corollary to the above
question is whether an admission by the accused-appellant can take the place
of any evidentiary means establishing beyond reasonable doubt the fact
averred in the negative in the pleading and which forms an essential
ingredient of the crime charged.
This Court answers both questions in the negative. By its very
nature, an "admission is the mere acknowledgment of a fact or of
circumstances from which guilt may be inferred, tending to incriminate the
speaker, but not sufficient of itself to establish his guilt." 22 In other words, it
is a "statement by defendant of fact or facts pertinent to issues pending, in
connection with proof of other facts or circumstances, to prove guilt, but
which is, of itself, insufficient to authorize conviction." 23 From the above
principles, this Court can infer that an admission in criminal cases is
insufficient to prove beyond reasonable doubt the commission of the crime
charged.
Moreover, said admission is extra-judicial in nature. As such, it does
not fall under Section 4 of Rule 129 of the Revised Rules of Court which
states:
"An admission, verbal or written, made by a party in the
course of the trial or other proceedings in the same case does
not require proof."
Not being a judicial admission, said statement by accused-appellant does not
prove beyond reasonable doubt the second element of illegal possession of
firearm. It does not even establish a prima facie case. It merely bolsters the case
for the prosecution but does not stand as proof of the fact of absence or lack of a
license.
This Court agrees with the argument of the Solicitor General that
"while the prosecution was able to establish the fact that the subject firearm
was seized by the police from the possession of appellant, without the latter
being able to present any license or permit to possess the same, such fact
alone is not conclusive proof that he was not lawfully authorized to carry
such firearm. In other words, such fact does not relieve the prosecution from
its duty to establish the lack of a license or permit to carry the firearm by
clear and convincing evidence, like a certification from the government
agency concerned." 24
Putting it differently, "when a negative is averred in a pleading, or a
plaintiff's case depends upon the establishment of a negative, and the means
of proving the fact are equally within the control of each party, then the
burden of proof is upon the party averring the negative." 25
In this case, a certification from the Firearms and Explosives Unit of
the Philippine National Police that accused-appellant was not a licensee of a
firearm of any kind or caliber would have sufficed for the prosecution to
prove beyond reasonable doubt the second element of the crime of illegal
possession of firearm.
In view of the foregoing, this Court sees no need to discuss the
second assigned error.
WHEREFORE, the assailed judgment of the court a quo is
REVERSED and SET ASIDE. Accused-appellant Nilo Solayao is hereby
ACQUITTED for insufficiency of evidence and ordered immediately released
unless there are other legal grounds for his continued detention, with costs de
oficio.
SO ORDERED.
Regalado, Puno and Torres, Jr., JJ ., concur.
Mendoza, J ., is on leave.
||| (People v. Solayao, G.R. No. 119220, September 20, 1996)
117
EN BANC
[G.R. No. 133917. February 19, 2001.]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.
NASARIO MOLINA y MANAMAT @ "BOBONG" and
GREGORIO MULA y MALAGURA @ "BOBOY",
accused-appellants.
The Solicitor General for plaintiff-appellee.
Ateneo Legal Aid Office for accused-appellant.
SYNOPSIS
In the morning of August 8, 1995, the PNP, Precinct No. 3, Matina, Davao City,
dispatched the team of SP04 Dionisio Cloribel, SP02 Paguidopon and SPO1
Pamplona to proceed to the house of SPO1 Marino Paguidopon, after the latter
received an information from his informer that an alleged marijuana pusher will
be passing at that place anytime that morning. At around 9:30, a "trisikad"
carrying Nasario Molina and Gregorio Mula passed by. SPO1 Paguidopon then
pointed at Nasario and Gregorio as the pushers. The team then immediately
boarded the vehicle, overtook the "trisikad" and then requested it to stop. Mula
then handed the black bag, which he was holding to Molina. After introducing
himself as police officer, Pamplona requested Molina to open the bag. Molina
replied " Boss, if possible we will settle this." Pamplona however insisted on
opening the bag, which revealed the marijuana leaves inside.
For unlawful possession of 946.9 grams of dried marijuana, accused-Nasario
Molina and Gregorio Mula were found by the Regional Trial Court of Davao City
guilty of violation of Section 8, of the Dangerous Drugs Act of 1972 (REPUBLIC
ACT NO. 6425), as amended by Republic Act No. 7659, and sentenced them to
death. The court a quo anchored its judgment of conviction on a finding that the
warrantless arrest of accused-appellants, and the subsequent search conducted by
the peace officers, were valid because accused-appellants were caught in flagrant
delicto in possession of prohibited drugs.
Hence, this automatic review.
In acquitting accused-appellants of the crime charged, the Supreme Court held
that the accused-appellants manifested no outward indication that would justify
their arrest. In holding a bag on board a trisikad, accused-appellants could not be
said to be committing, attempting to commit or have committed a crime. It
matters not that accused-appellant Molina responded "Boss, if possible we will
settle this" to the request of SPO1 Pamplona to open the bag. Such response
which allegedly reinforced the "suspicion" of the arresting officers that accused
appellants were committing a crime, is an equivocal statement which standing
alone will not constitute probable cause to effect an in flagrant delicto arrest.
Moreover, it could not be said that accused-appellants waived their right against
unreasonable searches and seizure. Implied acquiescence to the search, if there
was any, could not have been more than mere passive conformity given under
intimidating or coercive circumstances and is thus considered no consent at all
within the purview of the constitutional guarantee. Thus, the Court held that the
arrest of accused-appellants did not fall under the exceptions allowed by the rules.
Hence, the search conducted on their person was likewise illegal. Consequently,
the marijuana seized by the peace officers could not be admitted as evidence
against accused-appellants.
SYLLABUS
1. CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHT AGAINST
UNREASONABLE SEARCHES AND SEIZURE: EXCLUSIONARY RULE;
RATIONALE FOR THE RULE. The fundamental law of the land mandates
that searches and seizures be carried out in a reasonable fashion, that is, by virtue
or on the strength of a search warrant predicated upon the existence of a probable
cause. The pertinent provision of the Constitution provides: 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 Complementary to the foregoing provision is the exclusionary rule
enshrined under Article III, Section 3, paragraph 2, which bolsters and solidifies
the protection against unreasonable searches and seizures Thus: Any evidence
obtained in violation of this or the preceding section shall be inadmissible for any
purpose in any proceeding Without this rule, the right to privacy would be a form,
of words, valueless and undeserving of mention in a perpetual charter of
inestimable human liberties; so too, without this rule, the freedom from state
invasions of privacy would be so ephemeral and so neatly severed from its
118
conceptual nexus with the freedom from all brutish means of coercing evidence as
not to merit this Court's high regard as a freedom implicit in the concept of
ordered liberty.
2. ID.; ID.; ID.; ID.; EXCEPTIONS. The constitutional proscription, however,
is not without exceptions. Search and seizure may be made without a warrant and
the evidence obtained therefrom may be admissible in the following instances: (1)
search incident to a lawful arrest; (2) search of a moving motor vehicle; (3) search
in violation of customs laws; (4) seizure of evidence in plain view; (5) when the
accused himself waives his right against unreasonable searches and seizures; and
(6) stop and frisk situations (Terry search).
3. ID.; ID.; ID.; ID.; ID.; A SEARCH INCIDENTAL TO LAWFUL ARREST; A
LAWFUL ARREST MUST PRECEDE THE SEARCH; PERMISSIBLE
WARRANTLESS ARREST. The first exception (search incidental to a lawful
arrest) includes a valid warrantless search and seizure pursuant to an equally valid
warrantless arrest which must precede the search. In this instance, the law requires
that there be first a lawful arrest before a search can be made the process
cannot be reversed. As a rule, an arrest is considered legitimate if effected with a
valid warrant of arrest. The Rules of Court, however, recognizes permissible
warrantless arrests. Thus, a peace officer or a private person may, without
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 (arrest in
flagrante delicto); (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 (arrest effected in hot pursuit); and
(c) when the person to be arrested is a prisoner who has escaped from a penal
establishment or a 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 (arrest of escaped prisoners).
4. ID.; ID.; ID.; NO WAIVER OF THE RIGHT WHERE IMPLIED
ACQUIESCENCE TO THE SEARCH WAS GIVEN UNDER COERCIVE
CIRCUMSTANCES. Moreover, it could not be said that accused-appellants
waived their right against unreasonable searches and seizure. Implied
acquiescence to the search, if there was any, could not have been more than mere
passive conformity given under intimidating or coercive circumstances and is thus
considered no consent at all within the purview of the constitutional guarantee
5. ID.; ID.; ID.; ILLEGALITY OF THE SEARCH RENDERS ARTICLES
SEIZED INADMISSIBLE IN EVIDENCE. Withal, the Court holds that the
arrest of accused-appellants does not fall under the exceptions allowed by the
rules. Hence, the search conducted on their person was likewise illegal.
Consequently, the marijuana seized by the peace officers could not be admitted as
evidence against accused-appellants, and the Court is thus, left with no choice but
to find in favor of accused-appellant.
6. REMEDIAL LAW; CRIMINAL PROCEDURE; ARREST; IN FLAGRANTE
DELICTO ARREST. In People v. Chua Ho San, the Court held that in cases of
in flagrante delicto arrests, a peace officer or a private person may, without a
warrant, arrest a person when, in his presence, the person to be arrested has
committed, is actually committing, or is attempting to commit an offense. The
arresting officer, therefore, must have personal knowledge of such fact or, as
recent case law adverts to, personal knowledge of facts or circumstances
convincingly indicative or constitutive of probable cause. As discussed in People
v. Doria, probable cause 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.
7. ID.; ID.; ID.; ID.; RELIABLE INFORMATION ALONE NOT SUFFICIENT
TO CONSTITUTE PROBABLE CAUSE. As applied to in flagrante delicto
arrests, it is settled that "reliable information" alone, absent any overt act
indicative of a felonious enterprise in the presence and within the view of the
arresting officers, are not sufficient to constitute probable cause that would justify
an in flagrante delicto arrest. Thus, in People v. Aminnudin, it was held that "the
accused-appellant was not, at the moment of his arrest, committing a crime nor
was it shown that he was about to do so or that he had just done so. What he was
doing was descending the gangplank of the M/V Wilcon 9 and there was no
outward indication that called for his arrest. To all appearances, he was like any of
the other passengers innocently disembarking from the vessel. It was only when
the informer pointed to him as the carrier of the marijuana that he suddenly
became suspect and so subject to apprehension."
8. ID.; ID.; ID.; ID.; REQUISITES TO BE VALID. 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.
119

9. 1D, ID.; ID.; ID.; ID.; NOT PRESENT IN CASE AT BAR. In the case at
bar, accused-appellants manifested no outward indication that would justify their
arrest. In holding a bag on board a trisikad, accused-appellants could not be said
to be committing, attempting to commit or have committed a crime. It matters not
that accused-appellant Molina responded "Boss, if possible we will settle this" to
the request of SPO1 Pamplona to open the bag. Such response which allegedly
reinforced the "suspicion" of the arresting officers that accused-appellants were
committing a crime, is an equivocal statement which standing alone will not
constitute probable cause to effect an in flagrante delicto arrest. Note that were it
not for SPO1 Marino Paguidopon (who did not participate in the arrest but merely
pointed accused-appellants to the arresting officers), accused-appellants could not
be the subject of any suspicion, reasonable or otherwise.
DECISION
YNARES-SANTIAGO, J p:
To sanction disrespect and disregard for the Constitution in the name of protecting
the society from lawbreakers is to make the government itself lawless and to
subvert those values upon which our ultimate freedom and liberty depend. 1
For automatic review is the Decision 2 of the Regional Trial Court of Davao City,
Branch 17, in Criminal Case No. 37,264-96, finding accused-appellants Nasario
Molina y Manamat alias "Bobong" and Gregorio Mula y Malagura alias "Boboy,"
guilty beyond reasonable doubt of violation of Section 8, 3 of the Dangerous
Drugs Act of 1972 (REPUBLIC ACT NO. 6425), as amended by Republic Act
No. 7659, 4 and sentencing them to suffer the supreme penalty of death.
The information against accused-appellants reads:
That on or about August 8, 1996, in the City of Davao,
Philippines, and within the jurisdiction of this Honorable
Court, the above-named accused, in conspiracy with each
other, did then and there willfully, unlawfully and feloniously
was found in their possession 946.9 grams of dried marijuana
which are prohibited.
CONTRARY TO LAW. 5
Upon arraignment on September 4, 1996, accused-appellants pleaded not guilty to
the accusation against them. 6 Trial ensued, wherein the prosecution presented
Police Superintendent Eriel Mallorca, SPO1 Leonardo Y. Pamplona, Jr., and
SPO1 Marino S. Paguidopon, Jr. as witnesses.
The antecedent facts are as follows:
Sometime in June 1996, SPO1 Marino Paguidopon, then a member of the
Philippine National Police detailed at Precinct No. 3, Matina, Davao City,
received an information regarding the presence of an alleged marijuana pusher in
Davao City. 7 The first time he came to see the said marijuana pusher in person
was during the first week of July 1996. SPO1 Paguidopon was then with his
informer when a motorcycle passed by. His informer pointed to the motorcycle
driver, accused-appellant Mula, as the pusher. As to accused-appellant Molina,
SPO1 Paguidopon had no occasion to see him before the arrest. Moreover, the
names and addresses of the accused-appellants came to the knowledge of SPO1
Paguidopon only after they were arrested. 8
At about 7:30 in the morning of August 8, 1996, SPO1 Paguidopon received an
information that the alleged pusher will be passing at NHA, Maa, Davao City any
time that morning. 9 Consequently, at around 8:00 A.M. of the same day, he
called for assistance at the PNP, Precinct No. 3, Matina, Davao City, which
immediately dispatched the team of SPO4 Dionisio Cloribel (team leader), SPO2
Paguidopon (brother of SPO1 Marino Paguidopon), and SPO1 Pamplona, to
proceed to the house of SPO1 Marino Paguidopon where they would wait for the
alleged pusher to pass by. 10
At around 9:30 in the morning of August 8, 1996, while the team were positioned
in the house of SPO1 Paguidopon, a "trisikad" carrying the accused-appellants
passed by. At that instance, SPO1 Paguidopon pointed to the accused-appellants
as the pushers. Thereupon, the team boarded their vehicle and overtook the
"trisikad." 11 SPO1 Paguidopon was left in his house, thirty meters from where
the accused-appellants were accosted. 12
The police officers then ordered the "trisikad" to stop. At that point, accused-
appellant Mula who was holding a black bag handed the same to accused-
appellant Molina. Subsequently, SPO1 Pamplona introduced himself as a police
officer and asked accused-appellant Molina to open the bag. 13 Molina replied,
"Boss, if possible we will settle this." 14 SPO1 Pamplona insisted on opening the
120
bag, which revealed dried marijuana leaves inside. Thereafter, accused-appellants
Mula and Molina were handcuffed by the police officers. 15
On December 6, 1996, accused-appellants, through counsel, jointly filed a
Demurrer to Evidence, contending that the marijuana allegedly seized from them
is inadmissible as evidence for having been obtained in violation of their
constitutional right against unreasonable searches and seizures. 16 The demurrer
was denied by the trial court. 17 A motion for reconsideration was filed by
accused-appellants, but this was likewise denied. Accused-appellants waived
presentation of evidence and opted to file a joint memorandum.
On April 25, 1997, the trial court rendered the assailed decision, 18 the decretal
portion of which reads:
WHEREFORE, finding the evidence of the prosecution alone
without any evidence from both accused who waived
presentation of their own evidence through their counsels,
more than sufficient to prove the guilt of both accused of the
offense charged beyond reasonable doubt, pursuant to Sec.
20, sub. par. 5 of Republic Act 7659, accused NASARIO
MOLINA and GREGORIO MULA, are sentenced to suffer a
SUPREME PENALTY OF DEATH through lethal injection
under Republic Act 8176, to be effected and implemented as
therein provided for by law, in relation to Sec. 24 of Rep. Act
7659.
The Branch Clerk of Court of this court, is ordered to
immediately elevate the entire records of this case with the
Clerk of Court of the Supreme Court, Manila, for the
automatic review of their case by the Supreme Court and its
appropriate action as the case may be.
SO ORDERED. 19
Pursuant to Article 47 of the Revised Penal Code and Rule 122, Section 10 of the
Rules of Court, the case was elevated to this Court on automatic review. Accused-
appellants contend: EICScD
I.
THAT THE MARIJUANA IS INADMISSIBLE IN
EVIDENCE FOR HAVING BEEN SEIZED IN
VIOLATION OF APPELLANTS' CONSTITUTIONAL
RIGHTS AGAINST UNREASONABLE SEARCHES AND
SEIZURES;
II.
THAT ASSUMING IT IS ADMISSIBLE IN EVIDENCE,
THE GOVERNMENT HAS NOT OTHERWISE PROVED
THEIR GUILT BEYOND REASONABLE DOUBT; AND
III.
THAT, FINALLY, ASSUMING THEIR GUILT HAS BEEN
PROVED BEYOND REASONABLE DOUBT, THE
IMPOSABLE PENALTY FOR VIOLATION OF SEC. 8 OF
RA No. 7659 (sic), IN THE ABSENCE OF ANY
AGGRAVATING CIRCUMSTANCE, IS LIFE
IMPRISONMENT, NOT DEATH. 20
The Solicitor General filed a Manifestation and Motion (In Lieu of Brief), wherein
he prayed for the acquittal of both accused-appellants.
The fundamental law of the land mandates that searches and seizures be carried
out in a reasonable fashion, that is, by virtue or on the strength of a search warrant
predicated upon the existence of a probable cause. The pertinent provision of the
Constitution provides:
SECTION 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. 21
121
Complementary to the foregoing provision is the exclusionary rule enshrined
under Article III, Section 3, paragraph 2, which bolsters and solidifies the
protection against unreasonable searches and seizures. 22 Thus:
Any evidence obtained in violation of this or the preceding
section shall be inadmissible for any purpose in any
proceeding.
Without this rule, the right to privacy would be a form of words, valueless and
undeserving of mention in a perpetual charter of inestimable human liberties; so
too, without this rule, the freedom from state invasions of privacy would be so
ephemeral and so neatly severed from its conceptual nexus with the freedom from
all brutish means of coercing evidence as not to merit this Court's high regard as a
freedom implicit in the concept of ordered liberty. 23
The foregoing constitutional proscription, however, is not without exceptions.
Search and seizure may be made without a warrant and the evidence obtained
therefrom may be admissible in the following instances: (1) search incident to a
lawful arrest; (2) search of a moving motor vehicle; (3) search in violation of
customs laws; (4) seizure of evidence in plain view; (5) when the accused himself
waives his right against unreasonable searches and seizures; 24 and (6) stop and
frisk situations (Terry search). 25
The first exception (search incidental to a lawful arrest) includes a valid
warrantless search and seizure pursuant to an equally valid warrantless arrest
which must precede the search. In this instance, the law requires that there be first
a lawful arrest before a search can be made the process cannot be reversed. 26
As a rule, an arrest is considered legitimate if effected with a valid warrant of
arrest. The Rules of Court, however, recognizes permissible warrantless arrests.
Thus, a peace officer or a private person may, without 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 (arrest in flagrante delicto); (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 (arrest effected in hot pursuit); and (c) when the person
to be arrested is a prisoner who has escaped from a penal establishment or a 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
(arrest of escaped prisoners). 27
In the case at bar, the court a quo anchored its judgment of conviction on a finding
that the warrantless arrest of accused-appellants, and the subsequent search
conducted by the peace officers, are valid because accused-appellants were caught
in flagrante delicto in possession of prohibited drugs. 28 This brings us to the
issue of whether or not the warrantless arrest, search and seizure in the present
case fall within the recognized exceptions to the warrant requirement.
In People v. Chua Ho San, 29 the Court held that in cases of in flagrante delicto
arrests, a peace officer or a private person may, without a warrant, arrest a person
when, in his presence, the person to be arrested has committed, is actually
committing, or is attempting to commit an offense. The arresting officer,
therefore, must have personal knowledge of such fact or, as recent case law
adverts to, personal knowledge of facts or circumstances convincingly indicative
or constitutive of probable cause. As discussed in People v. Doria, 30 probable
cause 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.
As applied to in flagrante delicto arrests, it is settled that "reliable information"
alone, absent any overt act indicative of a felonious enterprise in the presence and
within the view of the arresting officers, are not sufficient to constitute probable
cause that would justify an in flagrante delicto arrest. Thus, in People v.
Aminnudin, 31 it was held that "the accused-appellant was not, at the moment of
his arrest, committing a crime nor was it shown that he was about to do so or that
he had just done so. What he was doing was descending the gangplank of the M/V
Wilcon 9 and there was no outward indication that called for his arrest. To all
appearances, he was like any of the other passengers innocently disembarking
from the vessel. It was only when the informer pointed to him as the carrier of the
marijuana that he suddenly became suspect and so subject to apprehension."
Likewise, in People v. Mengote, 32 the Court did not consider "eyes . . . darting
from side to side . . . [while] holding . . . [one's] abdomen", in a crowded street at
11:30 in the morning, as overt acts and circumstances sufficient to arouse
suspicion and indicative of probable cause. According to the Court, "[b]y no
stretch of the imagination could it have been inferred from these acts that an
offense had just been committed, or was actually being committed, or was at least
being attempted in [the arresting officers'] presence." So also, in People v.
122
Encinada, 33 the Court ruled that no probable cause is gleanable from the act of
riding a motorela while holding two plastic baby chairs.
Then, too, in Malacat v. Court of Appeals, 34 the trial court concluded that
petitioner was attempting to commit a crime as he was "'standing at the corner of
Plaza Miranda and Quezon Boulevard' with his eyes 'moving very fast' and
'looking at every person that come (sic) nearer (sic) to them."' 35 In declaring the
warrantless arrest therein illegal, the Court said:
Here, there could have been no valid in flagrante delicto ...
arrest preceding the search in light of the lack of personal
knowledge on the part of Yu, the arresting officer, or an overt
physical act, on the part of petitioner, indicating that a crime
had just been committed, was being committed or was going
to be committed. 36
It went on to state that
Second, there was nothing in petitioner's behavior or conduct
which could have reasonably elicited even mere suspicion
other than that his eyes were "moving very fast" an
observation which leaves us incredulous since Yu and his
teammates were nowhere near petitioner and it was already
6:30 p.m., thus presumably dusk. Petitioner and his
companions were merely standing at the corner and were not
creating any commotion or trouble . . .
Third, there was at all no g-round, probable or otherwise, to
believe that petitioner was armed with a deadly weapon. None
was visible to Yu, for as he admitted, the alleged grenade was
"discovered" "inside the front waistline" of petitioner, and
from all indications as to the distance between Yu and
petitioner, any telltale bulge, assuming that petitioner was
indeed hiding a grenade, could not have been visible to Yu.
37
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. 38
In the case at bar, accused-appellants manifested no outward indication that would
justify their arrest. In holding a bag on board a trisikad, accused-appellants could
not be said to be committing, attempting to commit or have committed a crime. It
matters not that accused-appellant Molina responded "Boss, if possible we will
settle this" to the request of SPO1 Pamplona to open the bag. Such response
which allegedly reinforced the "suspicion" of the arresting officers that accused-
appellants were committing a crime, is an equivocal statement which standing
alone will not constitute probable cause to effect an in flagrante delicto arrest.
Note that were it not for SPO1 Marino Paguidopon (who did not participate in the
arrest but merely pointed accused-appellants to the arresting officers), accused-
appellants could not be the subject of any suspicion, reasonable or otherwise.
cCDAHE
While SPO1 Paguidopon claimed that he and his informer conducted a
surveillance of accused-appellant Mula, SPO1 Paguidopon, however, admitted
that he only learned Mula's name and address after the arrest. What is more, it is
doubtful if SPO1 Paguidopon indeed recognized accused-appellant Mula. It is
worthy to note that, before the arrest, he was able to see Mula in person only once,
pinpointed to him by his informer while they were on the side of the road. These
circumstances could not have afforded SPO1 Paguidopon a closer look at
accused-appellant Mula, considering that the latter was then driving a motorcycle
when SPO1 Paguidopon caught a glimpse of him. With respect to accused-
appellant Molina, SPO1 Paguidopon admitted that he had never seen him before
the arrest.
This belies the claim of SPO1 Pamplona that he knew the name of accused-
appellants even before the arrest, to wit
"Q: When you said that certain Mula handed a black bag to
another person and how did you know that it was
Mula who handed the black bag to another person?
A: Because I have already information from Paguidopon,
regarding Mula and Molina, when they pass by
through the street near the residence of Paguidopon.
He told that the one who is big one that is Gregorio
Mula and the thin one is Nazario Molina" 39
The aforecited testimony of SPO1 Pamplona, therefore, is entirely baseless. SPO1
Pamplona could not have learned the name of accused-appellants from SPO1
Paguipodon because Paguipodon himself, who allegedly conducted the
123
surveillance, was not even aware of accused-appellants' name and address prior to
the arrest.
SO ORDERED.
Evidently, SPO1 Paguipodon, who acted as informer of the arresting officers,
more so the arresting officers themselves, could not have been certain of accused- Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban,
appellants' identity, and were, from all indications, merely fishing for evidence at Quisumbing, Pardo, Buena, Gonzaga-Reyes, De Leon, Jr. and Sandoval-
the time of the arrest. Gutierrez, JJ., concur.

Compared to People v. Encinada, the arresting officer in the said case knew ||| (People v. Molina y Manamat, G.R. No. 133917, February 19, 2001)
appellant Encinada even before the arrest because of the latter's illegal gambling
activities, thus, lending at least a semblance of validity on the arrest effected by
the peace officers. Nevertheless, the Court declared in said case that the
warrantless arrest and the consequent search were illegal, holding that "[t]he
prosecution's evidence did not show any suspicious behavior when the appellant
disembarked from the ship or while he rode the motorela. No act or fact
demonstrating a felonious enterprise could be ascribed to appellant under such
bare circumstances." 40

Moreover, it could not be said that accused-appellants waived their right against
unreasonable searches and seizure. Implied acquiescence to the search, if there
was any, could not have been more than mere passive conformity given under
intimidating or coercive circumstances and is thus considered no consent at all
within the purview of the constitutional guarantee. 41

Withal, the Court holds that the arrest of accused-appellants does not fall under
the exceptions allowed by the rules. Hence, the search conducted on their person
was likewise illegal. Consequently, the marijuana seized by the peace officers
could not be admitted as evidence against accused-appellants, and the Court is
thus, left with no choice but to find in favor of accused-appellants.

While the Court strongly supports the campaign of the government against drug
addiction and commends the efforts of our law-enforcement officers towards this
drive, all efforts for the achievement of a drug-free society must not encroach on
the fundamental rights and liberties of individuals as guaranteed in the Bill of
Rights, which protection extends even to the basest of criminals.

WHEREFORE, the Decision of the Regional Trial Court of Davao City, Branch
17, in Criminal Case No. 37, 264-96, is REVERSED and SET ASIDE. For lack of
evidence to establish their guilt beyond reasonable doubt, accused-appellants
Nasario Molina y Manamat alias "Bobong" and Gregorio Mula y Malagura alias
"Boboy", are ACQUITTED and ordered RELEASED from confinement unless
they are validly detained for other offenses. No costs.

124
EN BANC
[G.R. No. 123595. December 12, 1997.]
SAMMY MALACAT y MANDAR, petitioner, vs. COURT
OF APPEALS, and PEOPLE OF THE PHILIPPINES,
respondents.
SYNOPSIS
In an information filed before the Regional Trial Court (RTC) of Manila,
petitioner was charged with violating Section 3 of Presidential Decree No. 1866
for keeping, possessing and/or acquiring a hand grenade, without first securing the
necessary license and permit from the proper authorities. On arraignment,
petitioner, assisted by counsel de officio, entered a plea of not guilty. After trial on
the merits, the court a quo found petitioner guilty of the crime of illegal
possession of explosives under the said law and sentenced him to suffer the
penalty of not less than seventeen years, four months and one day of reclusion
temporal as minimum and not more than thirty years of reclusion perpetua, as
maximum. Petitioner filed a notice of appeal indicating that he was appealing to
the Supreme Court. However, the record of the case was forwarded to the Court of
Appeals. In its decision, the Court of Appeals affirmed the trial court's decision.
Unable to accept conviction, petitioner filed the instant petition alleging that the
respondent court erred in affirming the findings of the trial court that the
warrantless arrest of petitioner was valid and legal.
The Supreme Court finds the petition impressed with merit. For purposes of
determining appellate jurisdiction in criminal cases, the maximum of the penalty,
and not the minimum, is taken into account. Since the maximum of the penalty is
reclusion perpetua, the appeal therefrom should have been to the Court and not the
Court of Appeals. Hence, the challenged decision immediately fall in
jurisdictional grounds. Additionally, the Court is convinced that the prosecution
failed to establish petitioner's guilt with moral certainty. First, serious doubts
surrounds the story of police office Yu that a grenade was found in and seized
from petitioner's possession. Notably, Yu did not identify in court the grenade he
allegedly seized. Second, if indeed petitioner had a grenade with him and that two
days earlier he was with the group about to detonate an explosive at Plaza
Miranda, it was then unnatural and against common experience that petitioner
simply stood in Plaza Miranda in proximity to the police officers. Lastly, even
assuming that petitioner admitted possession of the grenade during his custodial
investigation police officer Serapio, such admission is inadmissible in evidence
for it was taken in palpable violation of Section 12(1) and (3) of Article III of the
Constitution. Verily, the search conducted on petitioner could not have been one
incidental to a lawful arrest. In view thereof, the challenged decision of the Court
of Appeals is set aside for lack of jurisdiction and on ground of reasonable doubt.
SYLLABUS
1. REMEDIAL LAW; CRIMINAL PROCEDURE; APPEAL TO THE
SUPREME COURT; FOR PURPOSES OF DETERMINING APPELLATE
JURISDICTION OF THE SUPREME COURT IN CRIMINAL CASES, THE
MAXIMUM OF THE PENALTY IMPOSABLE BY LAW IS TAKEN INTO
ACCOUNT AND NOT THE MINIMUM. For purposes of determining
appellate jurisdiction in criminal cases, the maximum of the penalty, and not the
minimum, is taken into account. Since the maximum of the penalty is reclusion
perpetua, the appeal therefrom should have been to Supreme Court, and not the
Court of Appeals, pursuant to Section 9(3) of the Judiciary Reorganization Act of
1980 (B.P. Blg. 129), in relation to Section 17 of the Judiciary Act of 1948,
Section 5(2) of Article VIII of the Constitution and Section 3(c) of Rule 122 of
the Rules of Court. The term life imprisonment as used in Section 9 of B.P. Blg.
129, the Judiciary Act of 1948, and Section 3 of Rule 122 must be deemed to
include reclusion perpetua in view of Section 5(2) of Article VIII of the
Constitution.
2. ID.; ID.; RIGHTS OF THE ACCUSED; PETITIONER'S ADMISSION OF
POSSESSION OF THE GRENADE DURING CUSTODIAL INVESTIGATION,
WITHOUT THE ASSISTANCE OF COUNSEL, INADMISSIBLE IN
EVIDENCE. Even assuming that petitioner admitted possession of the grenade
during his custodial investigation by police officer Serapio, such admission was
inadmissible in evidence for it was taken in palpable violation of Section 12(1)
and (3) of Article III of the Constitution. Serapio conducted the custodial
investigation on petitioner the day following his arrest. No lawyer was present and
Serapio could not have requested a lawyer to assist petitioner as no PAO lawyer
was then available. Thus, even if petitioner consented to the investigation and
waived his rights to remain silent and to counsel, the waiver was invalid as it was
not in writing, neither was it executed in the presence of counsel.
3. ID.; ID.; WARRANTLESS ARREST; LACK OF PERSONAL KNOWLEDGE
ON THE PART OF THE ARRESTING OFFICER OR AN OVERT PHYSICAL
ACT ON THE PART OF THE ACCUSED, INDICATING THAT THE CRIME
HAD JUST BEEN COMMITTED, OR WAS GOING TO BE COMMITTED,
125
MAKES THE SEARCH CONDUCTED ON THE ACCUSED NOT ONE
INCIDENTAL TO A LAWFUL ARREST; CASE AT BAR. In a search
incidental to a lawful arrest, as the precedent arrest determines the validity of the
incidental search, the legality of the arrest is questioned in a large majority of
these cases, e.g., whether an arrest was merely used as a pretext for conducting a
search. In this instance, the law requires that there first be a lawful arrest before a
search can be made the process cannot be reversed. At bottom, assuming a
valid arrest, the arresting officer may search the person of the arrestee and the area
within which the latter may reach for a weapon or for evidence to destroy, and
seize any money or property found which was used in the commission of the
crime, or the fruit of the crime, or that which may be used as evidence, or which
might furnish the arrestee with the means of escaping or committing violence.
Here, there could have been no valid in flagrante delicto or hot pursuit arrest
preceding the search in light of the lack of personal knowledge on the part of Yu,
the arresting officer, or an overt physical act, on the part of petitioner, indicating
that a crime had just been committed, was being committed or was going to be
committed. Having thus shown the invalidity of the warrantless arrest in this case,
plainly, the search conducted on petitioner could not have been one incidental to a
lawful arrest.
criminal behavior even without probable cause; and (2) the more pressing interest
of safety and self-preservation which permit the police officer to take steps to
assure himself that the person with whom he deals is not armed with a deadly
weapon that could unexpectedly and fatally be used against the police officer.
PANGANIBAN, J., separate opinion:
1. REMEDIAL LAW; CRIMINAL PROCEDURE; WARRANTLESS ARRESTS
AND SEARCHES; PROBABLE CAUSE, NEEDED FOR THEIR VALIDITY.
After reviewing previous decisions on valid warrantless arrests and searches,
the Court underscored in sum that there was need for facts providing probable
cause, such as "the distinct odor of marijuana, reports about drug transporting or
positive identification by informers, suspicious behavior, attempt to flee, [or]
failure to produce identification papers" to justify warrantless arrests and searches.
Likewise, urgency must attend such arrests and searches, as where motor vehicles
are used and there is great probability that the suspect would get away before a
warrant can be procured. Most important is that the law enforcers must act
immediately on the information received, suspicions raised or probable cause
established, and should effect the arrests and searches without any delay.

4. ID.; ID.; ID.; "STOP AND FRISK" AS A "LIMITED PROTECTIVE

2. ID.; ID.; ID.; ID.; THE STOP-AND-FRISK CONDUCTED BY ORDINARY
SEARCH OF OUTER CLOTHING FOR WEAPONS"; JUSTIFICATION FOR
POLICEMEN AGAINST THE ACCUSED ON THE BASIS THAT HIS EYES
AND ALLOWABLE SCOPE THEREOF. We now proceed to the justification
WERE MOVING VERY FAST AND THERE IS NO INDICATION THAT HE
for and allowable scope of a "stop-and-frisk" as a "limited protective search of
IS HIDING EXPLOSIVE PARAPHERNALIA, IS ILLEGAL; CASE AT BAR.
outer clothing for weapons," as laid down in Terry, thus: We merely hold today As in Manalili, lawmen were on surveillance in response to information that a
that where a police officer observes unusual conduct which leads him reasonably
criminal activity could be in the offing at a specified place. The stark difference,
to conclude in light of his experience that criminal activity may be afoot and that
however, is that in Manalili, the reported activity involved drug use and the
the persons with whom he is dealing may be armed and presently dangerous,
lawmen belonged to the anti-narcotics group, while in the instant case, the police
where in the course of investigating this behavior he identifies himself as a
on patrol were ordinary law enforcers on the lookout for possible bombers. In the
policeman and makes reasonable inquiries, and where nothing in the initial stages former, the law enforcers concerned may be presumed to possess special
of the encounter serves to dispel his reasonable fear for his own or others' safety, knowledge and skill to detect the physical features exhibited by a current drug
he is entitled for the protection of himself and others in the area to conduct a
user. Thus, when these specially trained enforcers saw Manalili with reddish eyes
carefully limited search of the outer clothing of such persons in an attempt to
and walking in a wobbly manner characteristic of a person "high" on drugs per
discover weapons which might be used to assault him. Such a search is a
their experience, and in a known hangout of drug users, there was sufficient
reasonable search under the Fourth Amendment . . . Other notable points of Terry
genuine reason to stop and frisk the suspect. It is well to emphasize that under
are that while probable cause is not required to conduct a "stop and frisk," it different circumstances such as where the policemen are not specially-trained, and
nevertheless holds that mere suspicion or a hunch will not validate a "stop and in common places where people ordinarily converge, the same features displayed
frisk." A genuine reason must exist, in light of the police officer's experience and
by a person will not normally justify a warrantless arrest or search on him. The
surrounding conditions, to warrant the belief that the person detained has weapons
case before us presents such a situation. The policemen merely observed that
concealed about him. Finally, a "stop-and-frisk" serves a two-fold interest: the
Malacat's eyes were moving very fast. They did not notice any bulges or packets
general interest of effective crime prevention and detection, which underlies the
about the bodies of these men indicating that they might be hiding explosive
recognition that a police officer may, under appropriate circumstances and in an
appropriate manner, approach a person for purposes of investigating possible

126
paraphernalia. From their outward look, nothing suggested that they were at the
time armed and dangerous. Hence, there was no justification for a stop-and-frisk.
3. ID.; ID.; ID.; ID.; ID.; DOCTRINE LAID DOWN IN PEOPLE VS.
MENGOTE, SQUARELY APPLICABLE IN CASE AT BAR. Bolstering the
invalidity of the arrest and search of Malacat is People vs. Mengote, another
classic on the right against unreasonable searches and seizures. Upon receiving a
telephone call shortly before noon from an informer that there were suspicious
looking persons at a certain street corner in Tondo, Manila, the Western Police
District dispatched a surveillance team to said place. There they saw two men
"looking from side to side" with one "holding his abdomen." The police
approached them and identified themselves, whereupon the two tried to flee but
failed as other lawmen surrounded them. The suspects were searched, and
recovered from Mengote was a fully loaded pistol; from his companion, a fan
knife. The Court ruled that the situation was not one calling for a lawful
warrantless search and arrest. As the Court, through Mr. Justice Isagani A. Cruz,
succinctly put it: "What offense could possibly have been suggested by a person
'looking from side to side and 'holding his abdomen' and in a place not exactly
forsaken? Under our rule in Mengote, petitioner's dubious act of moving his eyes
swiftly from side to side can in no way justify a stop-and-frisk. To convict a
person on the basis only of his queer behavior and to sentence him to practically a
lifetime in prison would simply be unfathomable. Nothing can be more wrong,
unjust and inhuman.
DECISION
DAVIDE, JR., J p:
In an Information 1 filed on 30 August 1990, in Criminal Case No. 90-86748
before the Regional Trial Court (RTC) of Manila, Branch 5, petitioner Sammy
Malacat y Mandar was charged with violating Section 3 of Presidential Decree
No. 1866, 2 as follows: LLjur
That on or about August 27, 1990, in the City of Manila,
Philippines, the said accused did then and there willfully,
unlawfully and knowingly keep, possess and/or acquire a
hand grenade, without first securing the necessary license
and/or permit therefor from the proper authorities.
At arraignment 3 on 9 October 1990, petitioner, assisted by counsel de officio,
entered a plea of not guilty.
At pre-trial on 11 March 1991, petitioner admitted the existence of Exhibits "A,"
"A-1," and "A-2," 4 while the prosecution admitted that the police authorities
were not armed with a search warrant nor warrant of arrest at the time they
arrested petitioner. 5
At trial on the merits, the prosecution presented the following police officers as its
witnesses: Rodolfo Yu, the arresting officer; Josefino C. Serapio, the investigating
officer; and Orlando Ramilo, who examined the grenade.
Rodolfo Yu of the Western Police District, Metropolitan Police Force of the
Integrated National Police, Police Station No. 3, Quiapo, Manila, testified that on
27 August 1990, at about 6:30 p.m., in response to bomb threats reported seven
days earlier, he was on foot patrol with three other police officers (all of them in
uniform) along Quezon Boulevard, Quiapo, Manila, near the Mercury Drug store
at Plaza Miranda. They chanced upon two groups of Muslim-looking men, with
each group, comprised of three to four men, posted at opposite sides of the corner
of Quezon Boulevard near the Mercury Drug Store. These men were acting
suspiciously with "[t]their eyes . . . moving very fast." 6
Yu and his companions positioned themselves at strategic points and observed
both groups for about thirty minutes. The police officers then approached one
group of men, who then fled in different directions. As the policemen gave chase,
Yu caught up with and apprehended petitioner. Upon searching petitioner, Yu
found a fragmentation grenade tucked inside petitioner's "front waist line." 7 Yu's
companion, police officer Rogelio Malibiran, apprehended Abdul Casan from
whom a .38 caliber revolver was recovered. Petitioner and Casan were then
brought to Police Station No. 3 where Yu placed an "X" mark at the bottom of the
grenade and thereafter gave it to his commander. 8
On cross-examination, Yu declared that they conducted the foot patrol due to a
report that a group of Muslims was going to explode a grenade somewhere in the
vicinity of Plaza Miranda. Yu recognized petitioner as the previous Saturday, 25
August 1990, likewise at Plaza Miranda, Yu saw petitioner and 2 others attempt to
detonate a grenade. The attempt was aborted when Yu and other policemen
chased petitioner and his companions; however, the former were unable to catch
any of the latter. Yu further admitted that petitioner and Casan were merely
127
standing on the corner of Quezon Boulevard when Yu saw them on 27 August
1990. Although they were not creating a commotion, since they were supposedly
acting suspiciously, Yu and his companions approached them. Yu did not issue
any receipt for the grenade he allegedly recovered from petitioner. 9
Josefino C. Serapio declared that at about 9:00 a.m. of 28 August 1990, petitioner
and a certain Abdul Casan were brought in by Sgt. Saquilla 10 for investigation.
Forthwith, Serapio conducted the inquest of the two suspects, informing them of
their rights to remain silent and to be assisted by competent and independent
counsel. Despite Serapio's advice, petitioner and Casan manifested their
willingness to answer questions even without the assistance of a lawyer. Serapio
then took petitioner's uncounselled confession (Exh. "E"), there being no PAO
lawyer available, wherein petitioner admitted possession of the grenade.
Thereafter, Serapio prepared the affidavit of arrest and booking sheet of petitioner
and Casan. Later, Serapio turned over the grenade to the Intelligence and Special
Action Division (ISAD) of the Explosive Ordinance Disposal Unit for
examination. 11
On cross-examination, Serapio admitted that he took petitioner's confession
knowing it was inadmissible in evidence. 12
Orlando Ramilo, a member of the Bomb Disposal Unit, whose principal duties
included, among other things, the examination of explosive devices, testified that
on 22 March 1991, he received a request dated 19 March 1991 from Lt. Eduardo
Cabrera and PO Diosdado Diotoy for examination of a grenade. Ramilo then
affixed an orange tag on the subject grenade detailing his name, the date and time
he received the specimen. During the preliminary examination of the grenade, he
"found that [the] major components consisting of [a] high filler and fuse assembly
[were] all present," and concluded that the grenade was "[l]ive and capable of
exploding." On even date, he issued a certification stating his findings, a copy of
which he forwarded to Diotoy on 11 August 1991. 13
Petitioner was the lone defense witness. He declared that he arrived in Manila on
22 July 1990 and resided at the Muslim Center in Quiapo, Manila. At around 6:30
in the evening of 27 August 1990, he went to Plaza Miranda to catch a breath of
fresh air. Shortly after, several policemen arrived and ordered all males to stand
aside. The policemen searched petitioner and two other men, but found nothing in
their possession. However, he was arrested with two others, brought to and
detained at Precinct No. 3, where he was accused of having shot a police officer.
The officer showed the gunshot wounds he allegedly sustained and shouted at
petitioner "[i]to ang tama mo sa akin." This officer then inserted the muzzle of his
gun into petitioner's mouth and said, "[y]ou are the one who shot me."
Petitioner denied the charges and explained that he only recently arrived in
Manila. However, several other police officers mauled him, hitting him with
benches and guns. Petitioner was once again searched, but nothing was found on
him. He saw the grenade only in court when it was presented. 14
The trial court ruled that the warrantless search and seizure of petitioner was akin
to a "stop and frisk," where a "warrant and seizure can be effected without
necessarily being preceded by an arrest" and "whose object is either to maintain
the status quo momentarily while the police officer seeks to obtain more
information." 15 Probable cause was not required as it was not certain that a crime
had been committed, however, the situation called for an investigation, hence to
require probable cause would have been "premature." 16 The RTC emphasized
that Yu and his companions were "[c]onfronted with an emergency, in which the
delay necessary to obtain a warrant, threatens the destruction of evidence" 17 and
the officers "[h]ad to act in haste," as petitioner and his companions were acting
suspiciously, considering the time, place and "reported cases of bombing."
Further, petitioner's group suddenly ran away in different directions as they saw
the arresting officers approach, thus "[i]t is reasonable for an officer to conduct a
limited search, the purpose of which is not necessarily to discover evidence of a
crime, but to allow the officer to pursue his investigation without fear of
violence." 18
The trial court then ruled that the seizure of the grenade from petitioner was
incidental to a lawful arrest, and since petitioner "[l]ater voluntarily admitted such
fact to the police investigator for the purpose of bombing the Mercury Drug
Store," concluded that sufficient evidence existed to establish petitioner's guilt
beyond reasonable doubt.
In its decision 19 dated 10 February 1994 but promulgated on 15 February 1994,
the trial court thus found petitioner guilty of the crime of illegal possession of
explosives under Section 3 of P.D. No. 1866, and sentenced him to suffer:
[T]he penalty of not less than SEVENTEEN (17) YEARS,
FOUR (4) MONTHS AND ONE (1) DAY OF RECLUSION
TEMPORAL, as minimum, and not more than THIRTY (30)
YEARS OF RECLUSION PERPETUA, as maximum.
On 18 February 1994, petitioner filed a notice of appeal 20 indicating that he was
appealing to this Court. However, the record of the case was forwarded to the
Court of Appeals which docketed it as CA-G.R. CR No. 15988 and issued a
notice to file briefs. 21
128

In his Appellant's Brief 22 filed with the Court of Appeals, petitioner asserted
that:
1. THE LOWER COURT ERRED IN HOLDING THAT
THE SEARCH UPON THE PERSON OF
ACCUSED-APPELLANT AND THE SEIZURE OF
THE ALLEGED HANDGRENADE FROM HIM
"WAS AN APPROPRIATE INCIDENT TO HIS
ARREST."
2. THE LOWER COURT ERRED IN ADMITTING AS
EVIDENCE AGAINST ACCUSED-APPELLANT
THE HANDGRENADE ALLEGEDLY SEIZED
FROM HIM AS IT WAS A PRODUCT OF AN
UNREASONABLE AND ILLEGAL SEARCH.
In sum, petitioner argued that the warrantless arrest was invalid due to absence of
any of the conditions provided for in Section 5 of Rule 113 of the Rules of Court,
citing People vs. Mengote. 23 As such, the search was illegal, and the hand
grenade seized, inadmissible in evidence.
In its Brief for the Appellee, the Office of the Solicitor General agreed with the
trial court and prayed that its decision be affirmed in toto. 24
In its decision of 24 January 1996, 25 the Court of Appeals affirmed the trial
court, noting, first, that petitioner abandoned his original theory before the court a
quo that the grenade was "planted" by the police officers; and second, the factual
finding of the trial court that the grenade was seized from petitioner's possession
was not raised as an issue. Further, respondent court focused on the admissibility
in evidence of Exhibit "D," the hand grenade seized from petitioner. Meeting the
issue squarely, the Court of Appeals ruled that the arrest was lawful on the ground
that there was probable cause for the arrest as petitioner was "attempting to
commit an offense," thus:
We are at a loss to understand how a man, who was in
possession of a live grenade and in the company of other
suspicious character[s] with unlicensed firearm[s] lurking in
Plaza Miranda at a time when political tension ha[d] been
enkindling a series of terroristic activities, [can] claim that he
was not attempting to commit an offense. We need not
mention that Plaza Miranda is historically notorious for being
a favorite bomb site especially during times of political
upheaval. As the mere possession of an unlicensed grenade is
by itself an offense, Malacat's posture is simply too
preposterous to inspire belief.
In so doing, the Court of Appeals took into account petitioner's failure to rebut the
testimony of the prosecution witnesses that they received intelligence reports of a
bomb threat at Plaza Miranda; the fact that PO Yu chased petitioner two days
prior to the latter's arrest, or on 27 August 1990; and that petitioner and his
companions acted suspiciously, the "accumulation" of which was more than
sufficient to convince a reasonable man that an offense was about to be
committed. Moreover, the Court of Appeals observed:
The police officers in such a volatile situation would be guilty
of gross negligence and dereliction of duty, not to mention of
gross incompetence, if they [would] first wait for Malacat to
hurl the grenade, and kill several innocent persons while
maiming numerous others, before arriving at what would then
be an assured but moot conclusion that there was indeed
probable cause for an arrest. We are in agreement with the
lower court in saying that the probable cause in such a
situation should not be the kind of proof necessary to convict,
but rather the practical considerations of everyday life on
which a reasonable and prudent mind, and not legal
technicians, will ordinarily act.
Finally, the Court of Appeals held that the rule laid down in People v. Mengote,
26 which petitioner relied upon, was inapplicable in light of "[c]rucial
differences," to wit:
[In Mengote] the police officers never received any
intelligence report that someone [at] the corner of a busy
street [would] be in possession of a prohibited article. Here
the police officers were responding to a [sic] public clamor to
put a check on the series of terroristic bombings in the
Metropolis, and, after receiving intelligence reports about a
bomb threat aimed at the vicinity of the historically notorious
Plaza Miranda, they conducted foot patrols for about seven
days to observe suspicious movements in the area.
Furthermore, in Mengote, the police officers [had] no
129
 personal knowledge that the person arrested has committed, is
actually committing, or is attempting to commit an offense.
Here, PO3 Yu [had] personal knowledge of the fact that he
chased Malacat in Plaza Miranda two days before he finally
succeeded in apprehending him.
Unable to accept his conviction, petitioner forthwith filed the instant petition and
assigns the following errors:
1. THE RESPONDENT COURT ERRED IN AFFIRMING
THE FINDING OF THE TRIAL COURT THAT
THE WARRANTLESS ARREST OF PETITIONER
WAS VALID AND LEGAL.
2. THE RESPONDENT COURT ERRED IN HOLDING
THAT THE RULING IN PEOPLE VS. MENGOTE
DOES NOT FIND APPLICATION IN THE
INSTANT CASE.
In support thereof, petitioner merely restates his arguments below regarding the
validity of the warrantless arrest and search, then disagrees with the finding of the
Court of Appeals that he was "attempting to commit a crime," as the evidence for
the prosecution merely disclosed that he was "standing at the corner of Plaza
Miranda and Quezon Boulevard" with his eyes "moving very fast" and "looking at
every person that come (sic) nearer (sic) to them." Finally, petitioner points out
the factual similarities between his case and that of People v. Mengote to
demonstrate that the Court of Appeals miscomprehended the latter.
In its Comment, the Office of the Solicitor General prays that we affirm the
challenged decision.
For being impressed with merit, we resolved to give due course to the petition.
The challenged decision must immediately fall on jurisdictional grounds. To
repeat, the penalty imposed by the trial court was:
[N]ot less than SEVENTEEN (17) YEARS, FOUR (4)
MONTHS AND ONE (1) DAY OF RECLUSION
TEMPORAL, as minimum, and not more than THIRTY (30)
YEARS OF RECLUSION PERPETUA, as maximum.
The penalty provided by Section 3 of P.D. No. 1866 upon any person who shall
unlawfully possess grenades is reclusion temporal in its maximum period to
reclusion perpetua.
For purposes of determining appellate jurisdiction in criminal cases, the maximum
of the penalty, and not the minimum, is taken into account. Since the maximum of
the penalty is reclusion perpetua, the appeal therefrom should have been to us,
and not the Court of Appeals, pursuant to Section 9(3) of the Judiciary
Reorganization Act of 1980 (B.P. Blg. 129), 27 in relation to Section 17 of the
Judiciary Act of 1948, 28 Section 5(2) of Article VIII of the Constitution 29 and
Section 3(c) of Rule 122 of the Rules of Court. 30 The term "life imprisonment"
as used in Section 9 of B.P. Blg. 129, the Judiciary Act of 1948, and Section 3 of
Rule 122 must be deemed to include reclusion perpetua in view of Section 5(2) of
Article VIII of the Constitution.
Petitioner's Notice of Appeal indicated that he was appealing from the trial court's
decision to this Court, yet the trial court transmitted the record to the Court of
Appeals and the latter proceeded to resolve the appeal.
We then set aside the decision of the Court of Appeals for having been rendered
without jurisdiction, and consider the appeal as having been directly brought to us,
with the petition for review as petitioner's Brief for the Appellant, the comment
thereon by the Office of the Solicitor General as the Brief for the Appellee and the
memoranda of the parties as their Supplemental Briefs.
Deliberating on the foregoing pleadings, we find ourselves convinced that the
prosecution failed to establish petitioner's guilt with moral certainty.
First, serious doubt surrounds the story of police officer Yu that a grenade was
found in and seized from petitioner's possession. Notably, Yu did not identify, in
court, the grenade he allegedly seized. According to him, he turned it over to his
commander after putting an "X" mark at its bottom; however, the commander was
not presented to corroborate this claim. On the other hand, the grenade presented
in court and identified by police officer Ramilo referred to what the latter received
from Lt. Eduardo Cabrera and police officer Diotoy not immediately after
petitioner's arrest, but nearly seven (7) months later or on 19 March 1991; further,
there was no evidence whatsoever that what Ramilo received was the very same
grenade seized from petitioner. In his testimony, Yu never declared that the
grenade passed on to Ramilo was the grenade the former confiscated from
petitioner. Yu did not, and was not made to, identify the grenade examined by
Ramilo, and the latter did not claim that the grenade he examined was that seized
130
from petitioner. Plainly, the law enforcement authorities failed to safeguard and
preserve the chain of evidence so crucial in cases such as these.
Second, if indeed petitioner had a grenade with him, and that two days earlier he
was with a group about to detonate an explosive at Plaza Miranda, and Yu and his
fellow officers chased, but failed to arrest them, then considering that Yu and his
three fellow officers were in uniform and therefore easily cognizable as police
officers, it was then unnatural and against common experience that petitioner
simply stood there in proximity to the police officers. Note that Yu observed
petitioner for thirty minutes and must have been close enough to petitioner in
order to discern petitioner's eyes "moving very fast."
Finally, even assuming that petitioner admitted possession of the grenade during
his custodial investigation by police officer Serapio, such admission was
inadmissible in evidence for it was taken in palpable violation of Section 12(1)
and (3) of Article III of the Constitution, which provide as follows:
SEC. 12 (1). Any person under investigation for the
commission of an offense shall have the right to be informed
of his right to remain silent and to have competent and
independent counsel preferably of his own choice. If the
person cannot afford the services of counsel, he must be
provided with one. These rights cannot be waived except in
writing and in the presence of counsel.
xxx xxx xxx
(3) Any confession or admission obtained in violation of this
or Section 17 hereof shall be inadmissible in evidence against
him.
Serapio conducted the custodial investigation on petitioner the day following his
arrest. No lawyer was present and Serapio could not have requested a lawyer to
assist petitioner as no PAO lawyer was then available. Thus, even if petitioner
consented to the investigation and waived his rights to remain silent and to
counsel, the waiver was invalid as it was not in writing, neither was it executed in
the presence of counsel.
Even granting ex gratia that petitioner was in possession of a grenade, the arrest
and search of petitioner were invalid, as will be discussed below.
The general rule as regards arrests, searches and seizures is that a warrant is
needed in order to validly effect the same. 31 The Constitutional prohibition
against unreasonable arrests, searches and seizures refers to those effected without
a validly issued warrant, 32 subject to certain exceptions. As regards valid
warrantless arrests, these are found in Section 5, Rule 113 of the Rules of Court,
which reads, in part:
Sec. 5. Arrest, without warrant; when lawful. A peace
officer or a private person may, without a warrant, arrest a
person:
(a) When, in his presence, the person to be arrested
has committed, is actually committing, or is
attempting to commit an offense;
(b) When an offense has 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
has escaped . . .
A warrantless arrest under the circumstances contemplated under Section 5(a) has
been denominated as one "in flagrante delicto," while that under Section 5(b) has
been described as a "hot pursuit" arrest.
Turning to valid warrantless searches, they are limited to the following: (1)
customs searches; (2) search of moving vehicles; (3) seizure of evidence in plain
view; (4) consent searches; 33 (5) a search incidental to a lawful arrest; 34 and (6)
a "stop and frisk." 35
In the instant petition, the trial court validated the warrantless search as a "stop
and frisk" with "the seizure of the grenade from the accused [as] an appropriate
incident to his arrest," hence necessitating a brief discussion on the nature of these
exceptions to the warrant requirement.
131
At the outset, we note that the trial court confused the concepts of a "stop-and-
frisk" and of a search incidental to a lawful arrest. These two types of warrantless
searches differ in terms of the requisite quantum of proof before they may be
validly effected and in their allowable scope.
In a search incidental to a lawful arrest, as the precedent arrest determines the
validity of the incidental search, the legality of the arrest is questioned in a large
majority of these cases, e.g., whether an arrest was merely used as a pretext for
conducting a search. 36 In this instance, the law requires that there first be a
lawful arrest before a search can be made the process cannot be reversed. 37 At
bottom, assuming a valid arrest, the arresting officer may search the person of the
arrestee and the area within which the latter may reach for a weapon or for
evidence to destroy, and seize any money or property found which was used in the
commission of the crime, or the fruit of the crime, or that which may be used as
evidence, or which might furnish the arrestee with the means of escaping or
committing violence. 38
Here, there could have been no valid in flagrante delicto or hot pursuit arrest
preceding the search in light of the lack of personal knowledge on the part of Yu,
the arresting officer, or an overt physical act, on the part of petitioner, indicating
that a crime had just been committed, was being committed or was going to be
committed.
Having thus shown the invalidity of the warrantless arrest in this case, plainly, the
search conducted on petitioner could not have been one incidental to a lawful
arrest.
We now proceed to the justification for and allowable scope of a "stop-and-frisk"
as a "limited protective search of outer clothing for weapons," as laid down in
Terry; thus:
We merely hold today that where a police officer observes
unusual conduct which leads him reasonably to conclude in
light of his experience that criminal activity may be afoot and
that the persons with whom he is dealing may be armed and
presently dangerous, where in the course of investigating this
behavior he identifies himself as a policeman and makes
reasonable inquiries, and where nothing in the initial stages of
the encounter serves to dispel his reasonable fear for his own
or others' safety, he is entitled for the protection of himself
and others in the area to conduct a carefully limited search of
the outer clothing of such persons in an attempt to discover
weapons which might be used to assault him. Such a search is
a reasonable search under the Fourth Amendment . . . 39
Other notable points of Terry are that while probable cause is not required to
conduct a "stop and frisk," 40 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. 41 Finally, a "stop-and-
frisk" serves a two-fold interest: (1) the general interest of effective crime
prevention and detection, which underlies the recognition that a police officer
may, under appropriate circumstances and in an appropriate manner, approach a
person for purposes of investigating possible criminal behavior even without
probable cause; and (2) the more pressing interest of safety and self-preservation
which permit the police officer to take steps to assure himself that the person with
whom he deals is not armed with a deadly weapon that could unexpectedly and
fatally be used against the police officer.
Here, there are at least three (3) reasons why the "stop-and-frisk" was invalid:
First, we harbor grave doubts as to Yu's claim that petitioner was a member of the
group which attempted to bomb Plaza Miranda two days earlier. This claim is
neither supported by any police report or record nor corroborated by any other
police officer who allegedly chased that group. Aside from impairing Yu's
credibility as a witness, this likewise diminishes the probability that a genuine
reason existed so as to arrest and search petitioner. If only to further tarnish the
credibility of Yu's testimony, contrary to his claim that petitioner and his
companions had to be chased before being apprehended, the affidavit of arrest
(Exh. "A") expressly declares otherwise, i.e., upon arrival of five (5) other police
officers, petitioner and his companions were "immediately collared."
Second, there was nothing in petitioner's behavior or conduct which could have
reasonably elicited even mere suspicion other than that his eyes were "moving
very fast" an observation which leaves us incredulous since Yu and his
teammates were nowhere near petitioner and it was already 6:30 p.m., thus
presumably dusk. Petitioner and his companions were merely standing at the
corner and were not creating any commotion or trouble, as Yu explicitly declared
on cross-examination: cdrep
Q And what were they doing?
A They were merely standing.
132
 Q You are sure of that?
A Yes, sir.
Q And when you saw them standing, there were nothing or
they did not create any commotion?
A None, sir.
Q Neither did you see them create commotion?
A None, sir. 42
Third, there was at all no ground, probable or otherwise, to believe that petitioner
was armed with a deadly weapon. None was visible to Yu, for as he admitted, the
alleged grenade was "discovered" "inside the front waistline" of petitioner, and
from all indications as to the distance between Yu and petitioner, any telltale
bulge, assuming that petitioner was indeed hiding a grenade, could not have been
visible to Yu. In fact, as noted by the trial court:
When the policemen approached the accused and his companions, they were not
yet aware that a handgrenade was tucked inside his waistline. They did not see
any bulging object in [sic] his person. 43
What is unequivocal then in this case are blatant violations of petitioner's rights
solemnly guaranteed in Sections 2 and 12(1) of Article III of the Constitution.
WHEREFORE, the challenged decision of the Seventeenth Division of the Court
of Appeals in CA-G.R. CR No. 15988 is SET ASIDE for lack of jurisdiction on
the part of said Court and, on ground of reasonable doubt, the decision of 10
February 1994 of Branch 5 of the Regional Trial Court of Manila is REVERSED
and petitioner SAMMY MALACAT y MANDAR is hereby ACQUITTED and
ORDERED immediately released from detention, unless his further detention is
justified for any other lawful cause.
SO ORDERED.
Narvasa, C .J ., Regalado, Romero, Bellosillo, Melo, Puno, Vitug, Kapunan,
Mendoza, Francisco and Martinez, JJ ., concur.
EN BANC
[G.R. No. 123872. January 30, 1998.]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.
RUBEN MONTILLA y GATDULA, accused-appellant.
The Solicitor General for plaintiff-appellee.
Sison Salomon Gonong Miranda & Associates for accused-appellant.
SYNOPSIS
Appellant was apprehended by members of the Cavite PNP transporting 28
marijuana bricks contained in a traveling bag and a carton box weighing 28
kilograms. The PNP officers alleged that they acted on a tip-off by an informant
that a drug courier would be arriving from Baguio City with an undetermined
amount of marijuana.
Appellant during the trial disavowed ownership of the prohibited drugs. He
admitted coming all the way from Baguio and proceeded to Dasmarias, Cavite,
but denied carrying any luggage with him. The trial culminated in a verdict of
guilty beyond reasonable doubt in a decision of the trial court which imposed the
extreme penalty of death on appellant.
All errors assigned by the appellant, i.e. insufficiency of evidence, unlawful
warrantless search and seizure, and failure of prosecution to establish that the 28
marijuana bricks confiscated from him were the same marijuana examined by the
forensic chemist and presented in court, did not impress the Court.
The reversible error or the trial court lies in its imposition of the penalty of death
on appellant. As amended by Republic Act No. 7659, Section 20, Article IV of the
Dangerous Drugs Act now provides inter alia that the penalty in Section 4 of
Article II shall be applied if the dangerous drugs involved is, in the case of indian
hemp or marijuana, 750 grams or more. In said Section 4, the transporting of
prohibited drugs carries with it the penalty of reclusion perpetua to death and a
fine ranging from five hundred thousand pesos to ten million pesos. Thus, the law
133
prescribes a penalty composed of two indivisible penalties, reclusion perpetua
and death. aDcHIS
As found by the trial court, there were neither mitigating nor aggravating
circumstances attending appellant's violation of the law, hence the second
paragraph of Article 63 must necessarily apply, in which case the lesser penalty of
reclusion perpetua is the proper imposable penalty. Contrary to the
pronouncement of the court a quo, it was never intended by the legislature that
where the quantity of the dangerous drugs involved exceeds those stated in
Section 20, the maximum penalty of death shall be imposed. Nowhere in the
amendatory law is there a provision from which such a conclusion may be gleaned
or deduced. On the contrary, this Court has already concluded that Republic Act
No. 7659 did not amend Article 63 of the Revised Penal Code, the rules wherein
were observed although the cocaine subject of that case was also in excess of the
of quantity provided in Section 20.
SYLLABUS
1. REMEDIAL LAW; EVIDENCE; CREDIBILITY; FINDINGS OF FACT OF
THE TRIAL COURT GENERALLY NOT DISTURBED ON APPEAL. In the
present appellate review, appellant disputes the trial court's finding that he was
legally caught in flagrante transporting the prohibited drugs. This Court, after an
objective and exhaustive review of the evidence on record, discerns no reversible
error in the factual findings of the trial court. It finds unassailable the reliance of
the lower court on the positive testimonies of the police officers to whom no ill
motives can be attributed, and its rejection of appellant's fragile defense of denial
which is evidently self-serving in nature.
2. ID.; CRIMINAL PROCEDURE; WHERE AN OFFENSE MAY BE
COMMITTED IN DIFFERENT MODES, AN INDICTMENT WOULD
SUFFICE IF THE OFFENSE IS COMMITTED IN ANY MODES SPECIFIED
THEREIN. The governing rule with respect to an offense which may be
committed in any of the different modes provided by law is that an indictment
would suffice if the offense is alleged to have been committed in one, two or more
modes specified therein. This is so as allegations in the information of the various
ways of committing the offense should be considered as a description of only one
offense and the information cannot be dismissed on the ground of
multifariousness.
3. ID.; ID.; CORROBORATED EVIDENCE; COULD BE DISPENSED WITH
BY THE PROSECUTION. For one, the testimony of said informer would have
been, at best, merely corroborative of the declarations of SPO1 Talingting and
SPO1 Clarin before the trial court, which testimonies are not hearsay as both
testified upon matters in which they had personally taken part. As such, the
testimony of the informer could be dispensed with by the prosecution, more so
where what he would have corroborated are the narrations of law enforcers on
whose performance of duties regularity is the prevailing legal presumption.
4. ID.; ID.; INFORMANTS ARE GENERALLY NOT PRESENTED IN
COURT. Informants are generally not presented in court because of the need to
hide their identities and preserve their invaluable services to the police.
5. ID.; ID.; PRESENTATION OF WITNESSES FOR THE PEOPLE
PREROGATIVE OF THE PROSECUTION. Moreover, it is up to the
prosecution whom to present in court as its witnesses, and not for the defense to
dictate that course.
6. ID.; ID.; APPELLANT CAN RESORT TO COERCIVE PROCESS TO
COMPEL EYEWITNESS TO APPEAR. Appellant could very well have
resorted to the coercive process of subpoena to compel that eyewitness to appear
before the court below, but which remedy was not availed of by him.
7. CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHT AGAINST
UNREASONABLE SEARCHES AND SEIZURES CONSTRUED. Section 2,
Article III of the Constitution lays down the general rule that a search and seizure
must be carried out through or on the strength of a judicial warrant, absent which
such search and seizure becomes "unreasonable" within the meaning of said
constitutional provision. Evidence secured 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.
8. ID.; ID.; ID.; INSTANCES WHERE SEARCH AND SEIZURE WITHOUT
WARRANT ALLOWED. In the language of the fundamental law, it shall be
inadmissible in evidence for any purpose in any proceeding. This exclusionary
rule is not, however, an absolute and rigid proscription. Thus, (1) customs
searches; (2) searches of moving vehicles; (3) seizure of evidence in plain view;
(4) consented searches; (5) searches incidental to a lawful arrest; and (6) "stop and
frisk" measures have been invariably recognized as the traditional exceptions.
9. REMEDIAL LAW; CRIMINAL PROCEDURE; SEARCH AND SEIZURE;
SEARCH INCIDENTAL TO A LAWFUL ARREST, LEGAL; CASE AT BAR.
On the defense argument that the warrantless search conducted on appellant
invalidates the evidence obtained from him, still the search on his belongings and
134
the consequent confiscation of the illegal drugs as a result thereof was justified as
a search incidental to a lawful arrest under Section 5(a), Rule 113 of the Rules of
Court. Under that provision, a peace officer or a private person may, without a
warrant, arrest a person when, in his presence, the person to be arrested has
committed, is actually committing, or is attempting to commit an offense.
10. ID.; ID.; ID.; ID.; PROBABLE CAUSE, REQUIRED. A legitimate
warrantless arrest, as above contemplated, 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.
On the other hand, the apprehending officer must have been spurred by probable
cause in effecting an arrest which could be classified as one in cadence with the
instances of permissible arrests set out in Section 5(a). These instances have been
applied to arrests carried out on persons caught in flagrante delicto. DTIaHE
11. ID.; ID.; ID.; ID.; PROBABLE CAUSE, CONSTRUED. The conventional
view is that probable cause, while largely a relative term the determination of
which must be resolved according to the facts of each case, is understood as
having reference to such facts and circumstances which could lead a reasonable,
discreet, and prudent man to believe and conclude as to the commission of an
offense, and that the objects sought in connection with the offense are in the place
sought to be searched.
12. ID.; EVIDENCE; EVIDENTIARY MEASURE FOR PROPRIETY OF
FILING CRIMINAL CHARGES AND FOR EFFECTION OF A
WARRANTLESS ARREST, LIBERALIZED. Parenthetically, if we may
digress, it is time to observe that the evidentiary measure for the propriety of filing
criminal charges and, correlatively, for effecting a warrantless arrest, has been
reduced and liberalized. In the past, our statutory rules and jurisprudence required
prima facie evidence, which was of a higher degree or quantum, and was even
used with dubiety as equivalent to "probable cause." Yet, even in the American
jurisdiction from which we derived the term and its concept, probable cause is
understood to merely mean a reasonable ground for belief in the existence of facts
warranting the proceedings complained of, or an apparent state of facts found to
exist upon reasonable inquiry which would induce a reasonably intelligent and
prudent man to believe that the accused person had committed the crime.
Felicitously, those problems and confusing concepts were clarified and set aright,
at least on the issue under discussion, by the 1985 amendment of the Rules of
Court which provides in Rule 112 thereof that the quantum of evidence required
in preliminary investigation is such evidence as suffices to "engender a well
founded belief" as to the fact of the commission of a crime and the respondent's
probable guilt thereof. It has the same meaning as the related phraseology used in
other parts of the same Rule, that is, that the investigating fiscal "finds cause to
hold the respondent for trial," or where "a probable cause exists." It should,
therefore, be in that sense, wherein the right to effect a warrantless arrest should
be considered as legally authorized.
13. ID.; CRIMINAL PROCEDURE; WARRANTLESS ARREST AND
SEARCH VALID WHERE ACCUSED WAS CAUGHT IN FLAGRANTE
DELICTO. In the case at bar, as soon as appellant had alighted from the
passenger jeepney the informer at once indicated to the officers that their suspect
was at hand by pointing to him from the waiting shed. SPO1 Clarin recounted that
the informer told them that the marijuana was likely hidden inside the traveling
bag and carton box which appellant was carrying at the time. The officers thus
realized that he was their man even if he was simply carrying a seemingly
innocent looking pair of luggage for personal effects. Accordingly, they
approached appellant, introduced themselves as policemen, and requested him to
open and show them the contents of the traveling bag, which appellant voluntarily
and readily did. Upon cursory inspection by SPO1 Clarin, the bag yielded the
prohibited drugs, so, without bothering to further search the box, they brought
appellant and his luggage to their headquarters for questioning. Here, there were
sufficient facts antecedent to the search and seizure that, at the point prior to the
search, were already constitutive of probable cause, and which by themselves
could properly create in the minds of the officers a well-grounded and reasonable
belief that appellant was in the act of violating the law. The search yielded
affirmance both of that probable cause and the actuality that appellant was then
actually committing a crime by illegally transporting prohibited drugs. With these
attendant facts, it is ineluctable that appellant was caught in flagrante delicto,
hence his arrest and the search of his belongings without the requisite warrant
were both justified.
14. ID.; ID.; SEARCH AND SEIZURE; WHEN AN INDIVIDUAL
VOLUNTARILY SUBMITS TO A SEARCH, HE IS PRECLUDED FROM
LATER COMPLAINING THEREOF. Furthermore, that appellant also
consented to the search is borne out by the evidence. To repeat, when the officers
approached appellant and introduced themselves as policemen, they asked him
about the contents of his luggage, and after he replied that they contained personal
effects, the officers asked him to open the traveling bag. Appellant readily
acceded presumably or in all likelihood resigned to the fact that the law had
caught up with his criminal activities. When an individual voluntarily submits to a
search or consents to have the same conducted upon his person or premises, he is
precluded from later complaining thereof.
135
15. CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHT AGAINST
UNREASONABLE SEARCHES AND SEIZURES; MAY BE WAIVED
EXPRESSLY OR IMPLIEDLY. After all, the right to be secure from
unreasonable search may, like other rights, be waived either expressly or
impliedly. Thus, while it has been held that the silence of the accused during a
warrantless search should not be taken to mean consent to the search but as a
demonstration of that person's regard for the supremacy of the law, the case of
herein appellant is evidently different for, here, he spontaneously performed
affirmative acts of volition by himself opening the bag without being forced or
intimidated to do so, which acts should properly be construed as a clear waiver of
his right.
16. ID.; ID.; RIGHTS OF A PERSON ARRESTED, DETAINED OR UNDER
CUSTODIAL INVESTIGATION; NON-OBSERVANCE WILL NOT STRIKE
DOWN PROCEEDINGS IN THE LOWER COURT WHERE APPELLANT DID
NOT CONFESS DURING CUSTODIAL INVESTIGATION AND WHERE HIS
GUILT WAS CLEARLY ESTABLISHED BY OTHER EVIDENCE.
Appellant questions the interrogation conducted by the police authorities,
claiming that he was not allowed to communicate with anybody, and that he was
not duly informed of his right to remain silent and to have competent and
independent counsel preferably of his own choice. Indeed, appellant has a point.
The police authorities here could possibly have violated the provision of Republic
Act No. 7438 which defines certain rights of persons arrested, detained, or under
custodial investigation, as well as the duties of the arresting, detaining, and
investigating officers, and providing corresponding penalties for violations
thereof. Assuming the existence of such irregularities, however, the proceedings
in the lower court will not necessarily be struck down. Firstly, appellant never
admitted or confessed anything during his custodial investigation. Thus, no
incriminatory evidence in the nature of a compelled or involuntary confession or
admission was elicited from him which would otherwise have been inadmissible
in evidence. Secondly and more importantly, the guilt of appellant was clearly
established by other evidence adduced by the prosecution, particularly the
testimonies of the arresting officers together with the documentary and object
evidence which were formally offered and admitted in evidence in the court
below.
17. CRIMINAL LAW; DANGEROUS DRUGS ACT, AS AMENDED;
UNLAWFUL TRANSPORTATION OF MARIJUANA; PENALTY. As
amended by Republic Act No. 7659, Section 20, Article IV of the Dangerous
Drugs Act now provides inter alia that the penalty in Section 4 of Article II shall
be applied if the dangerous drugs involved is, in the case of indian hemp or
marijuana, 750 grams or more. In said Section 4, the transporting of prohibited
drugs carries with it the penalty of reclusion perpetua to death and a fine ranging
from five hundred thousand pesos to ten million pesos. Thus, the law prescribes a
penalty composed of two indivisible penalties, reclusion perpetua and death. As
found by the trial court, there were neither mitigating nor aggravating
circumstances attending appellant's violation of the law, hence the second
paragraph of Article 63 must necessarily apply, in which case the lesser penalty of
reclusion perpetua is the proper imposable penalty.
PANGANIBAN, J., separate opinion:
1. REMEDIAL LAW; CRIMINAL PROCEDURE; ARREST; ARREST
WITHOUT WARRANT OF PERSON CAUGHT IN FLAGRANTE DELICTO;
NOT MET WHERE PERSON ARRESTED WAS MERELY ALIGHTING
FROM A PASSENGER JEEP. Justice Panganiban begs to disagree with
Justice Regalado's conclusion that the warrantless search conducted upon the
person of appellant was valid for being "a search incidental to a lawful arrest
under Section 5(a), Rule 113 of the Rules of Court." Under the cited provision, an
arrest may be lawfully effected upon a person caught in flagrante delicto, i.e. in
the very act of committing a crime. He does not see how Appellant Montilla who
was apprehended while merely alighting from a passenger jeepney carrying a
travelling bag and a carton could have been perceived by the police as committing
crime at the very moment of his arrest. DHIETc
2. ID.; ID.; ID.; LAWFUL ARREST MUST PRECEDE WARRANTLESS
SEARCH. In the very recent en banc case of Malacat vs. Court of Appeals, the
Court through Mr. Justice Hilario G. Davide, Jr., clearly and unanimously
explained the concept of search incidental to a lawful arrest, and he quote: "In a
search incidental to a lawful arrest, as the precedent arrest determines the validity
of the incidental search, the legality of the arrest is questioned in a large majority
of these case, e.g., whether an arrest was merely used as a pretext for conducting a
search. In this instance, the law requires that there be first a lawful arrest before a
search can be made the process cannot be reversed. At bottom, assuming a
valid arrest, the arresting officer may search the person of the arrestee and the area
within which the latter may reach for a weapon or for evidence to destroy, and
seize any money or property found which was used in the commission of the
crime, of the fruit or the crime, or that which may be used as evidence, or which
might furnish the arrestee with the means of escaping or committing violence."
3. ID.; ID.; ID.; ID.; PERSONAL KNOWLEDGE BY ARRESTING OFFICER
OF OFFENSE, REQUIRED; CASE AT BAR. Jurisprudence is settled that
under in flagrante delicto rule, "the officer arresting a person who has just
committed, is committing, or is about to commit an offense must have personal
knowledge of that fact. The offense must also be committed in his presence or
136
within his view." The circumstances of the case at bar is patently wanting in
fulfillment of the above standard. For one, the arresting officers had no personal
knowledge that Montilla either had just committed or was committing or
attempting to commit an offense. Secondly, even if we equate the possession of an
intelligence report with personal knowledge of the commission of a crime, still,
the alleged felonious act was not performed in the presence or within the view of
the arresting officers. The lawmen did not see appellant exhibit any overt act or
strange conduct that would reasonably arouse in their minds suspicion that he was
embarking on some felonious enterprise. Neither was there any mention at all by
the police of any outward indication, such as bulkiness on his body that could
have suggested that he was carrying a firearm, or any peculiar smell emanating
from his baggage that could have hinted that he was carrying marijuana. In short,
there was no valid ground for the warrantless arrest.
4. ID.; ID.; ID.; "HOT PURSUIT DOCTRINE," CONSTRUED.
Parenthetically, neither could Appellant Montilla's arrest be justified under the
"hot pursuit" rule. In People vs. Burgos, the Court said: "In arrests without a
warrant under Section 6(b) [of Rule 113, Rules of Court], however, 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 have been committed first.
That a 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."
5. ID.; ID.; ID.; WHERE SEARCH WAS ILLEGAL, THERE CAN BE NO
VALID INCIDENTAL ARREST. Another parallel case is People vs.
Encinada, where the appellant was searched without a warrant while also
disembarking from a ship, on the strength of a tip from an informant received by
the police the previous afternoon that the appellant would be transporting
prohibited drugs, the search yielded a plastic package containing marijuana.
Encinada's arrest and search were validated by the trial court under the in
flagrante delicto rule. In reversing the trial court, this Court stressed that when he
disembarked from the ship or while he rode the motorela, Encinada did not
manifest any suspicious behavior that would reasonably invite the attention of the
police. Under such bare circumstances, no act or fact demonstrating a felonious
enterprise could be ascribed to the accused. In short, he was not committing a
crime in the presence of the police; neither did the latter have personal knowledge
of facts indicating that he just committed an offense. Where the search was illegal,
there could be no valid incidental arrest.
6. ID.; ID.; ID.; WARRANTLESS ARREST; RAW INTELLIGENCE
INFORMATION NOT SUFFICIENT GROUND. The Court further said that
raw intelligence information was not a sufficient ground for warrantless arrest.
Having known the identity of their suspect the previous day, the law enforcers
could have secured a judicial warrant even within such limited period.
7. ID.; ID.; SEARCH WARRANTS; APPLICATION ALLOWED DURING
SATURDAYS, SUNDAYS AND LEGAL HOLIDAYS. Under the
circumstances of the instant case, there was sufficient time for the police to have
applied for search warrant. The information that appellant would be arriving in the
early morning of June 20, 1994 at Barangay Salitran, Dasmarias, Cavite, was
received by the police at 2:00 p.m. of the preceding day. The fact that it was a
Sunday did not prevent the police from securing a warrant. Administrative
Circulars 13 and 19, s. 1987 allow applications for search warrants even "after
office hours, or during Saturdays, Sundays and legal holidays" where there is an
urgency and prompt action is needed. Surely, with the attendant circumstances,
the arresting officers could have easily justified the urgency of the issuance of a
search warrant.
8. ID.; ID.; STRICTER GROUNDS FOR VALID ARREST AND SEARCHES
WITHOUT WARRANT THAN ISSUANCE OF WARRANTS THEREFOR.
Law and jurisprudence in fact require stricter grounds for valid arrests and
searches without warrant than for the issuance of warrants therefor. In the former,
the arresting person must have actually witnessed the crime being committed or
attempted by the person sought to be arrested; or he must have personal
knowledge of facts indicating that the person to be arrested perpetrated the crime
that had just occurred. In the latter case, the judge simply determines personally
from testimonies of witnesses that there exist reasonable grounds to believe that a
crime was committed by the accused.
9. ID.; ID.; ARREST; ACTUAL DISCOVERY OF PROHIBITED DRUGS,
DOES NOT CURE ILLEGALITY OF ARREST OR SEARCHES. Justice
Panganiban submits that if the police doubts the exact identity or name of the
person to be arrested or the exact place to be searched, with more reason should
they seek a judge's independent determination of the existence of probable cause.
The police, in such instances, cannot take the law into their own hands, or by
themselves conclude that probable cause exists. He reiterates that the actual
discovery of prohibited drugs in the possession of the accused does not cure the
illegality off his arrest or search.
10. CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHT AGAINST
UNREASONABLE SEARCHERS, WAIVED IN CASE AT BAR. In any
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event, notwithstanding the illegality with which the search and arrest of Appellant
Montilla was effected, J. Panganiban have to concur with the majority in
affirming his conviction, only for the reason that appellant waived his right to
object to such illegality. It appears that he did not protest when the police, after
identifying themselves, asked him to open his baggage for inspection. The fact
that he voluntarily submitted to the search, without any force or intimidation on
the part of the police, signifies his consent thereto. Voluntary consent is a valid
waiver of one's right against unreasonable searches. Furthermore, upon
arraignment, Appellant Montilla pleaded not guilty and proceeded to participate in
the trial. Established jurisprudence holds that a plea is tantamount to foregoing an
objection to the irregularity of one's arrest. The right to question the legality of
appellant's arrest may therefore be deemed to have been waived by him. ECcTaS
DECISION
REGALADO, J p:
Accused-Appellant Ruben Montilla y Gatdula, alias "Joy," was charged on
August 27, 1994 for violating Section 4, Article II of the Dangerous Drugs Act of
1972, REPUBLIC ACT NO. 6425, as amended by Republic Act No. 7659, before
the Regional Trial Court, Branch 90, of Dasmarias, Cavite in an information
which alleges: cdasia
That on or about the 20th day of June 1994, at Barangay
Salitran, Municipality of Dasmarias, Province of Cavite,
Philippines and within the jurisdiction of this Honorable
Court, the above-named accused, not being authorized by law,
did then and there, willfully, unlawfully and feloniously,
administer, transport, and deliver twenty-eight (28) kilos of
dried marijuana leaves, which are considered prohibited
drugs, in violation of the provisions of R.A. 6425 thereby
causing damage and prejudice to the public interest. 1
The consequent arraignment conducted on September 14, 1994 elicited a plea of
not guilty from appellant who was assisted therein by his counsel de parte. 2 Trial
was held on scheduled dates thereafter, which culminated in a verdict of guilty in
a decision of the trial court dated June 8, 1995 and which imposed the extreme
penalty of death on appellant. He was further ordered to pay a fine in the amount
of P500,000.00 and to pay the costs of the proceedings. 3
It appears from the evidence of the prosecution that appellant was apprehended at
around 4:00 A.M. of June 20, 1994 near a waiting shed located at Barangay
Salitran, Dasmarias, Cavite by SPO1 Concordio Talingting and SPO1 Armando
Clarin, both members of the Cavite Philippine National Police Command based in
Dasmarias. Appellant, according to the two officers, was caught transporting 28
marijuana bricks contained in a traveling bag and a carton box, which marijuana
bricks had a total weight of 28 kilos.
These two officers later asserted in court that they were aided by an informer in
the arrest of appellant. That informer, according to Talingting and Clarin, had
informed them the day before, or on June 19, 1994 at about 2:00 P.M., that a drug
courier, whom said informer could recognize, would be arriving somewhere in
Barangay Salitran, Dasmarias from Baguio City with an undetermined amount of
marijuana. It was the same informer who pinpointed to the arresting officers the
appellant when the latter alighted from a passenger jeepney on the aforestated day,
hour, and place. 4
Upon the other hand, appellant disavowed ownership of the prohibited drugs. He
claimed during the trial that while he indeed came all the way from Baguio City,
he traveled to Dasmarias, Cavite with only some pocket money and without any
luggage. His sole purpose in going there was to look up his cousin who had earlier
offered a prospective job at a garment factory in said locality, after which he
would return to Baguio City. He never got around to doing so as he was accosted
by SPO1 Talingting and SPO1 Clarin at Barangay Salitran.
He further averred that when he was interrogated at a house in Dasmarias,
Cavite, he was never informed of his constitutional rights and was in fact even
robbed of the P500.00 which he had with him. Melita Adaci, the cousin,
corroborated appellant's testimony about the job offer in the garment factory
where she reportedly worked as a supervisor, 5 although, as the trial court
observed, she never presented any document to prove her alleged employment.
In the present appellate review, appellant disputes the trial court's finding that he
was legally caught in flagrante transporting the prohibited drugs. This Court, after
an objective and exhaustive review of the evidence on record, discerns no
reversible error in the factual findings of the trial court. It finds unassailable the
reliance of the lower court on the positive testimonies of the police officers to
whom no ill motives can be attributed, and its rejection of appellant's fragile
defense of denial which is evidently self-serving in nature.
1. Firstly, appellant asserts that the court a quo grossly erred in convicting him on
the basis of insufficient evidence as no proof was proffered showing that he
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willfully, unlawfully, and feloniously administered, transported, and delivered 28
kilos of dried marijuana leaves, since the police officers "testified only on the
alleged transporting of Marijuana from Baguio City to Cavite."
Further, the failure of the prosecution to present in court the civilian informant is
supposedly corrosive of the People's cause since, aside from impinging upon
appellant's fundamental right to confront the witnesses against him, that informant
was a vital personality in the operation who would have contradicted the hearsay
and conflicting testimonies of the arresting officers on how appellant was collared
by them.
The pertinent provision of the penal law here involved, in Section 4 of Article II
thereof, as amended, is as follows:
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.
Notwithstanding the provision of Section 20 of this Act to the
contrary, if the victim of the offense is a minor, or should a
prohibited drug involved in any offense under this Section be
the proximate cause of the death of a victim thereof, the
maximum penalty herein provided shall be imposed.
Now, the offense ascribed to appellant is a violation of the Dangerous Drugs Act,
some of the various modes of commission 6 being the sale, administration,
delivery, distribution, and transportation of prohibited drugs as set forth in the
epigraph of Section 4, Article II of said law. The text of Section 4 expands and
extends its punitive scope to other acts besides those mentioned in its headnote by
including these who 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." Section 4 could thus be violated by the
commission of any of the acts specified therein, or a combination thereof, such as
selling, administering, delivering, giving away, distributing, dispatching in transit
or transporting, and the like.
As already stated, appellant was charged with a violation of Section 4, the
transgressive acts alleged therein and attributed to appellant being that he
administered, delivered, and transported marijuana. The governing rule with
respect to an offense which may be committed in any of the different modes
provided by law is that an indictment would suffice if the offense is alleged to
have been committed in one, two or more modes specified therein. This is so as
allegations in the information of the various ways of committing the offense
should be considered as a description of only one offense and the information
cannot be dismissed on the ground of multifariousness. 7 In appellant's case, the
prosecution adduced evidence clearly establishing that he transported marijuana
from Baguio City to Cavite. By that act alone of transporting the illicit drugs,
appellant had already run afoul of that particular section of the statute, hence,
appellant's asseverations must fail.
The Court also disagrees with the contention of appellant that the civilian
informer should have been produced in court considering that his testimony was
"vital" and his presence in court was essential in order to give effect to or
recognition of appellant's constitutional right to confront the witnesses arrayed by
the State against him. These assertions are, however, much too strained. Far from
compromising the primacy of appellant's right to confrontation, the non-
presentation of the informer in this instance was justified and cannot be faulted as
error.
For one, the testimony of said informer would have been, at best, merely
corroborative of the declarations of SPO1 Talingting and SPO1 Clarin before the
trial court, which testimonies are not hearsay as both testified upon matters in
which they had personally taken part. As such, the testimony of the informer
could be dispensed with by the prosecution, 8 more so where what he would have
corroborated are the narrations of law enforcers on whose performance of duties
regularity is the prevailing legal presumption. Besides, informants are generally
not presented in court because of the need to hide their identities and preserve
their invaluable services to the police. 9 Moreover, it is up to the prosecution
whom to present in court as its witnesses, and not for the defense to dictate that
course. 10 Finally, appellant could very well have resorted to the coercive process
of subpoena to compel that eyewitness to appear before the court below, 11 but
which remedy was not availed of by him.
2. Appellant contends that the marijuana bricks were confiscated in the course of
an unlawful warrantless search and seizure. He calls the attention of the Court to
the fact that as early as 2:00 P.M. of the preceding day, June 19, 1994, the police
authorities had already been apprised by their so-called informer of appellant's
impending arrival from Baguio City, hence those law enforcers had the
139
opportunity to procure the requisite warrant. Their misfeasance should therefore
invalidate the search for and seizure of the marijuana, as well as the arrest of
appellant on the following dawn. Once again, the Court is not persuaded.
Section 2, Article III of the Constitution lays down the general rule that a search
and seizure must be carried out through or on the strength of a judicial warrant,
absent which such search and seizure becomes "unreasonable" within the meaning
of said constitutional provision. 12 Evidence secured 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. This
exclusionary rule is not, however, an absolute and rigid proscription. Thus, (1)
customs searches; 13 (2) searches of moving vehicles, 14 (3) seizure of evidence
in plain view; 15 (4) consented searches; 16 (5) searches incidental to a lawful
arrest; 17 and (6) "stop and frisk" measures 18 have been invariably recognized as
the traditional exceptions.
In appellant's case, it should be noted that the information relayed by the civilian
informant to the law enforcers was that there would be delivery of marijuana at
Barangay Salitran by a courier coming from Baguio City in the "early morning" of
June 20, 1994. Even assuming that the policemen were not pressed for time, this
would be beside the point for, under these circumstances, the information relayed
was too sketchy and not detailed enough for the obtention of the corresponding
arrest or search warrant. While there is an indication that the informant knew the
courier, the records do not reveal that he knew him by name.
While it is not required that the authorities should know the exact name of the
subject of the warrant applied for, there is the additional problem that the
informant did not know to whom the drugs would be delivered and at which
particular part of the barangay there would be such delivery. Neither did this asset
know the precise time of the suspect's arrival, or his means of transportation, the
container or contrivance wherein the drugs were concealed and whether the same
were arriving together with, or were being brought by someone separately from,
the courier.
On such bare information, the police authorities could not have properly applied
for a warrant, assuming that they could readily have access to a judge or a court
that was still open by the time they could make preparations for applying therefor,
and on which there is no evidence presented by the defense. In determining the
opportunity for obtaining warrants, not only the intervening time is controlling but
all the coincident and ambient circumstances should be considered, especially in
rural areas. In fact, the police had to form a surveillance team and to lay down a
dragnet at the possible entry points to Barangay Salitran at midnight of that day
notwithstanding the tip regarding the "early morning" arrival of the courier. Their
leader, SPO2 Cali, had to reconnoiter inside and around the barangay as backup,
unsure as they were of the time when and the place in Barangay Salitran, where
their suspect would show up, and how he would do so.
On the other hand, that they nonetheless believed the informant is not surprising
for, as both SPO1 Clarin and SPO1 Talingting recalled, he had proved to be a
reliable source in past operations. Moreover, experience shows that although
information gathered and passed on by these assets to law enforcers are vague and
piecemeal, and not as neatly and completely packaged as one would expect from a
professional spymaster, such tip-offs are sometimes successful as it proved to be
in the apprehension of appellant. If the courts of justice are to be of understanding
assistance to our law enforcement agencies, it is necessary to adopt a realistic
appreciation of the physical and tactical problems of the latter, instead of critically
viewing them from the placid and clinical environment of judicial chambers. prcd
3. On the defense argument that the warrantless search conducted on appellant
invalidates the evidence obtained from him, still the search on his belongings and
the consequent confiscation of the illegal drugs as a result thereof was justified as
a search incidental to a lawful arrest under Section 5(a), Rule 113 of the Rules of
Court. Under that provision, a peace officer or a private person may, without a
warrant, arrest a person when, in his presence, the person to be arrested has
committed, is actually committing, or is attempting to commit an offense.
A legitimate warrantless arrest, as above contemplated, 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 On the other hand, the apprehending officer must
have been spurred by probable cause in effecting an arrest which could be
classified as one in cadence with the instances of permissible arrests set out in
Section 5(a). 20 These instances have been applied to arrests carried out on
persons caught in flagrante delicto. The conventional view is that probable cause,
while largely a relative term the determination of which must be resolved
according to the facts of each case, is understood as having reference to such facts
and circumstances which could lead a reasonable, discreet, and prudent man to
believe and conclude as to the commission of an offense, and that the objects
sought in connection with the offense are in the place sought to be searched. 21
Parenthetically, if we may digress, it is time to observe that the evidentiary
measure for the propriety of filing criminal charges and, correlatively, for
effecting a warrantless arrest, has been reduced and liberalized. In the past, our
140
statutory rules and jurisprudence required prima facie evidence, which was of a
higher degree or quantum, 22 and was even used with dubiety as equivalent to
"probable cause." Yet, even in the American jurisdiction from which we derived
the term and its concept, probable cause is understood to merely mean a
reasonable ground for belief in the existence of facts warranting the proceedings
complained of, 23 or an apparent state of facts found to exist upon reasonable
inquiry which would induce a reasonably intelligent and prudent man to believe
that the accused person had committed the crime. 24
Felicitously, those problems and confusing concepts were clarified and set aright,
at least on the issue under discussion, by the 1985 amendment of the Rules of
Court which provides in Rule 112 thereof that the quantum of evidence required
in preliminary investigation is such evidence as suffices to "engender a well
founded belief" as to the fact of the commission of a crime and the respondent's
probable guilt thereof. 25 It has the same meaning as the related phraseology used
in other parts of the same Rule, that is, that the investigating fiscal "finds cause to
hold the respondent for trial," or where "a probable cause exists." 26 It should,
therefore, be in that sense, wherein the right to effect a warrantless arrest should
be considered as legally authorized.
In the case at bar, as soon as appellant had alighted from the passenger jeepney
the informer at once indicated to the officers that their suspect was at hand by
pointing to him from the waiting shed. SPO1 Clarin recounted that the informer
told them that the marijuana was likely hidden inside the traveling bag and carton
box which appellant was carrying at the time. The officers thus realized that he
was their man even if he was simply carrying a seemingly innocent looking pair
of luggage for personal effects. Accordingly, they approached appellant,
introduced themselves as policemen, and requested him to open and show them
the contents of the traveling bag, which appellant voluntarily and readily did.
Upon cursory inspection by SPO1 Clarin, the bag yielded the prohibited drugs, so,
without bothering to further search the box, they brought appellant and his
luggage to their headquarters for questioning.
Appellant insists that the mere fact of seeing a person carrying a traveling bag and
a carton box should not elicit the slightest suspicion of the commission of any
crime since that is normal. But, precisely, it is in the ordinary nature of things that
drugs being illegally transported are necessarily hidden in containers and
concealed from view. Thus, the officers could reasonably assume, and not merely
on a hollow suspicion since the informant was by their side and had so informed
them, that the drugs were in appellant's luggage. It would obviously have been
irresponsible, if not downright absurd under the circumstances, to require the
constable to adopt a "wait and see" attitude at the risk of eventually losing the
quarry.
Here, there were sufficient facts antecedent to the search and seizure that, at the
point prior to the search, were already constitutive of probable cause, and which
by themselves could properly create in the minds of the officers a well-grounded
and reasonable belief that appellant was in the act of violating the law. The search
yielded affirmance both of that probable cause and the actuality that appellant was
then actually committing a crime by illegally transporting prohibited drugs. With
these attendant facts, it is ineluctable that appellant was caught in flagrante
delicto, hence his arrest and the search of his belongings without the requisite
warrant were both justified.
Furthermore, that appellant also consented to the search is borne out by the
evidence. To repeat, when the officers approached appellant and introduced
themselves as policemen, they asked him about the contents of his luggage, and
after he replied that they contained personal effects, the officers asked him to open
the traveling bag. Appellant readily acceded, presumably or in all likelihood
resigned to the fact that the law had caught up with his criminal activities. When
an individual voluntarily submits to a search or consents to have the same
conducted upon his person or premises, he is precluded from later complaining
thereof.
After all, the right to be secure from unreasonable search may, like other rights, be
waived either expressly or impliedly. 27 Thus, while it has been held that the
silence of the accused during a warrantless search should not be taken to mean
consent to the search but as a demonstration of that person's regard for the
supremacy of the law, 28 the case of herein appellant is evidently different for,
here, he spontaneously performed affirmative acts of volition by himself opening
the bag without being forced or intimidated to do so, which acts should properly
be construed as a clear waiver of his right. 29
4. Appellant likewise harps on the alleged failure of the prosecution to "legally,
properly and adequately establish that the 28 bricks of marijuana allegedly
confiscated from (him) were the same marijuana examined by the forensic
chemist and presented in court." Indeed, the arresting officers did not identify in
court the marijuana bricks seized from appellant since, in fact they did not have to
do so. It should be noted that the prosecution presented in the court below and
formally offered in evidence those 28 bricks of marijuana together with the
traveling bag and the carton box in which the same were contained. The articles
were properly marked as confiscated evidence and proper safeguards were taken
141
to ensure that the marijuana turned over to the chemist for examination, and which
subsequently proved positive as such, were the same drugs taken from appellant.
The trial court, therefore, correctly admitted them in evidence, satisfied that the
articles were indubitably no other than those taken from appellant.
Complementarily, the corpus delicti was firmly established by SPO1 Clarin and
SPO1 Talingting who categorically related that when they had ascertained that the
contents of the traveling bag of appellant appeared to be marijuana, they forthwith
asked him where he had come from, and the latter readily answered "Baguio
City," thus confirming the veracity of the report of the informer. No other
conclusion can therefore be derived than that appellant had transported the illicit
drugs all the way to Cavite from Baguio City. Coupled with the presentation in
court of the subject matter of the crime, the marijuana bricks which had tested
positive as being Indian hemp, the guilt of appellant for transporting the
prohibited drugs in violation of the law is beyond doubt. LLjur
Appellant questions the interrogation conducted by the police authorities,
claiming that he was not allowed to communicate with anybody, and that he was
not duly informed of his right to remain silent and to have competent and
independent counsel preferably of his own choice. Indeed, appellant has a point.
The police authorities here could possibly have violated the provision of Republic
Act No. 7438 30 which defines certain rights of persons arrested, detained, or
under custodial investigation, as well as the duties of the arresting, detaining, and
investigating officers, and providing corresponding penalties for violations
thereof.
Assuming the existence of such irregularities, however, the proceedings in the
lower court will not necessarily be struck down. Firstly, appellant never admitted
or confessed anything during his custodial investigation. Thus, no incriminatory
evidence in the nature of a compelled or involuntary confession or admission was
elicited from him which would otherwise have been inadmissible in evidence.
Secondly and more importantly, the guilt of appellant was clearly established by
other evidence adduced by the prosecution, particularly the testimonies of the
arresting officers together with the documentary and object evidence which were
formally offered and admitted in evidence in the court below.
5. The reversible error of the trial court lies in its imposition of the penalty of
death on appellant. As amended by Republic Act No. 7659, Section 20, Article IV
of the Dangerous Drugs Act now provides inter alia that the penalty in Section 4
of Article II shall be applied if the dangerous drugs involved is, in the case of
Indian hemp or marijuana, 750 grams or more. In said Section 4, the transporting
of prohibited drugs carries with it the penalty of reclusion perpetua to death and a
fine ranging from five hundred thousand pesos to ten million pesos. Thus, the law
prescribes a penalty composed of two indivisible penalties, reclusion perpetua
and death. In the present case, Article 63 of the Revised Penal Code consequently
provides the rules to be observed in the application of said penalties.
As found by the trial court, there were neither mitigating nor aggravating
circumstances attending appellant's violation of the law, hence the second
paragraph of Article 63 must necessarily apply, in which case the lesser penalty of
reclusion perpetua is the proper imposable penalty. Contrary to the
pronouncement of the court a quo, it was never intended by the legislature that
where the quantity of the dangerous drugs involved exceeds those stated in
Section 20, the maximum penalty of death shall be imposed. Nowhere in the
amendatory law is there a provision from which such a conclusion may be gleaned
or deduced. On the contrary, this Court has already concluded that Republic Act
No. 7659 did not amend Article 63 of the Revised Penal Code, 31 the rules
wherein were observed although the cocaine subject of that case was also in
excess of the quantity provided in Section 20.
It is worth mentioning at this juncture that the law itself provides a specific
penalty where the violation thereof is in its aggravated form as laid down in the
second paragraph of Section 4 whereby, regardless of Section 20 of Article IV, if
the victim is a minor, or should a prohibited drug involved in any offense in said
section be the proximate cause of the death of a victim thereof, the maximum
penalty shall be imposed. 32 While the minority or the death of the victim will
increase the liability of the offender, these two facts do not constitute generic
aggravating circumstances, as the law simply provides for the imposition of the
single indivisible penalty of death if the offense is attended by either of such
factual features. In that situation, obviously the rules on the graduation of
penalties in Article 63 cannot apply. In herein appellant's case, there was neither a
minor victim nor a consequent death of any victim. Hence, the basic rules in
Article 63 of the Code govern.
WHEREFORE, the judgment of the Regional Trial Court, Branch 90, of
Dasmarias, Cavite in Criminal Case No. 3401-94 is hereby MODIFIED in the
sense that accused-appellant Ruben Montilla y Gatdula shall suffer the penalty of
reclusion perpetua. In all other respects, the judgment of the trial court is hereby
AFFIRMED, with costs against accused-appellant.
SO ORDERED.
Narvasa, C .J ., Davide, Jr., Romero, Bellosillo, Kapunan, Mendoza, Francisco
and Martinez, JJ ., concur.
142
EN BANC
[G.R. No. 91107. June 19, 1991.]
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs. MIKAEL MALMSTEDT, * defendant-appellant.
The Solicitor General for plaintiff-appellee.
Romulo, Mabanta, Buenaventura, Sayoc & De los Angeles for defendant-
appellant.
DECISION
PADILLA, J p:
In an information dated 15 June 1989, accused-appellant Mikael Malmstedt
(hereinafter referred to as the accused) was charged before the Regional Trial
Court (RTC) of La Trinidad, Benguet, Branch 10, in Criminal Case No. 89-CR-
0663, for violation of Section 4, Art. II of Republic Act 6425, as amended,
otherwise known as the Dangerous Drugs Act of 1972, as amended. The factual
background of the case is as follows:
Accused Mikael Malmstedt, a Swedish national, entered the Philippines for the
third time in December 1988 as a tourist. He had visited the country sometime in
1982 and 1985.
In the evening of 7 May 1989, accused left for Baguio City. Upon his arrival
thereat in the morning of the following day, he took a bus to Sagada and stayed in
that place for two (2) days.
At around 7:00 o'clock in the morning of 11 May 1989, accused went to the
Nangonogan bus stop in Sagada to catch the first available trip to Baguio City.
From Baguio City, accused planned to take a late afternoon trip to Angeles City,
then proceed to Manila to catch his flight out of the country, scheduled on 13 May
1989. From Sagada, accused took a Skyline bus with body number 8005 and Plate
number AVC 902. 1
At about 8:00 o'clock in the morning of that same day (11 May 1989), Captain
Alen Vasco, the Commanding Officer of the First Regional Command
(NARCOM) stationed at Camp Dangwa, ordered his men to set up a temporary
checkpoint at Kilometer 14, Acop, Tublay, Mountain Province, for the purpose of
checking all vehicles coming from the Cordillera Region. The order to establish a
checkpoint in the said area was prompted by persistent reports that vehicles
coming from Sagada were transporting marijuana and other prohibited drugs.
Moreover, information was received by the Commanding Officer of NARCOM,
that same morning, that a Caucasian coming from Sagada had in his possession
prohibited drugs. 2
The group composed of seven (7) NARCOM officers, in coordination with
Tublay Police Station, set up a checkpoint at the designated area at about 10:00
o'clock in the morning and inspected all vehicles coming from the Cordillera
Region.
At about 1:30 o'clock in the afternoon, the bus where accused was riding was
stopped. Sgt. Fider and CIC Galutan boarded the bus and announced that they
were members of the NARCOM and that they would conduct an inspection. The
two (2) NARCOM officers started their inspection from the front going towards
the rear of the bus. Accused who was the sole foreigner riding the bus was seated
at the rear thereof.
During the inspection, CIC Galutan noticed a bulge on accused's waist.
Suspecting the bulge on accused's waist to be a gun, the officer asked for
accused's passport and other identification papers. When accused failed to
comply, the officer required him to bring out whatever it was that was bulging on
his waist. The bulging object turned out to be a pouch bag and when accused
opened the same bag, as ordered, the officer noticed four (4) suspicious-looking
objects wrapped in brown packing tape, prompting the officer to open one of the
wrapped objects. The wrapped objects turned out to contain hashish, a derivative
of marijuana.
Thereafter, accused was invited outside the bus for questioning. But before he
alighted from the bus, accused stopped to get two (2) travelling bags from the
luggage carrier.
Upon stepping out of the bus, the officers got the bags and opened them. A teddy
bear was found in each bag. Feeling the teddy bears, the officer noticed that there
143
were bulges inside the same which did not feel like foam stuffing. It was only
after the officers had opened the bags that accused finally presented his passport.
Accused was then brought to the headquarters of the NARCOM at Camp
Dangwa, La Trinidad, Benguet for further investigation. At the investigation
room, the officers opened the teddy bears and they were found to also contain
hashish. Representative samples were taken from the hashish found among the
personal effects of accused and the same were brought to the PC Crime
Laboratory for chemical analysis.
In the chemistry report, it was established that the objects examined were hashish,
a prohibited drug which is a derivative of marijuana. Thus, an information was
filed against accused for violation of the Dangerous Drugs Act.
During the arraignment, accused entered a plea of "not guilty." For his defense, he
raised the issue of illegal search of his personal effects. He also claimed that the
hashish was planted by the NARCOM officers in his pouch bag and that the two
(2) travelling bags were not owned by him, but were merely entrusted to him by
an Australian couple whom he met in Sagada. He further claimed that the
Australian couple intended to take the same bus with him but because there were
no more seats available in said bus, they decided to take the next ride and asked
accused to take charge of the bags, and that they would meet each other at the
Dangwa Station.
Likewise, accused alleged that when the NARCOM officers demanded for his
passport and other identification papers, he handed to one of the officers his pouch
bag which was hanging on his neck containing, among others, his passport, return
ticket to Sweden and other papers. The officer in turn handed it to his companion
who brought the bag outside the bus. When said officer came back, he charged the
accused that there was hashish in the bag. He was told to get off the bus and his
picture was taken with the pouch bag placed around his neck. The trial court did
not give credence to accused's defense. LibLex
The claim of the accused that the hashish was planted by the NARCOM officers,
was belied by his failure to raise such defense at the earliest opportunity. When
accused was investigated at the Provincial Fiscal's Office, he did not inform the
Fiscal or his lawyer that the hashish was planted by the NARCOM officers in his
bag. It was only two (2) months after said investigation when he told his lawyer
about said claim, denying ownership of the two (2) travelling bags as well as
having hashish in his pouch bag.
In a decision dated 12 October 1989, the trial court found accused guilty beyond
reasonable doubt for violation of the Dangerous Drugs Act, specifically Section 4,
Art. II of RA 6425, as amended. 3 The dispositive portion of the decision reads as
follows:
"WHEREFORE, finding the guilt of the accused Mikael
Malmstedt established beyond reasonable doubt, this Court
finds him GUILTY of violation of Section 4, Article II of
Republic Act 6425, as amended, and hereby sentences him to
suffer the penalty of life imprisonment and to pay a fine of
Twenty Thousand Pesos (P20,000.00), with subsidiary
imprisonment in case of insolvency and to pay the costs.
Let the hashish subject of this case be turned over to the First
Narcotics Regional Unit at Camp Bado; Dangwa, La
Trinidad, Benguet for proper disposition under Section 20,
Article IV of Republic Act 425, as amended.
SO ORDERED." 4
Seeking the reversal of the decision of the trial court finding him guilty of the
crime charged, accused argues that the search of his personal effects was illegal
because it was made without a search warrant and, therefore, the prohibited drugs
which were discovered during the illegal search are not admissible as evidence
against him.
The Constitution guarantees the right of the people to be secure in their persons,
houses, papers and effects against unreasonable searches and seizures. 5 However,
where the search is made pursuant to a lawful arrest, there is no need to obtain a
search warrant. A lawful arrest without a warrant may be made by a peace officer
or a private person under the following circumstances. 6
"SEC. 5. Arrest without warrant; when lawful. A peace
officer or a private person may, without a warrant, arrest a
person:
(a) When, in his presence, the person to be arrested has
committed, is actually committing, or is attempting to commit
an offense;
144
 (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 has
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.
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. (6a, 17a)."
Accused was searched and arrested while transporting prohibited drugs (hashish).
A crime was actually being committed by the accused and he was caught in
flagrante delicto. Thus, the search made upon his personal effects falls squarely
under paragraph (1) of the foregoing provisions of law, which allow a warrantless
search incident to a lawful arrest. 7
While it is true that the NARCOM officers were not armed with a search warrant
when the search was made over the personal effects of accused, however, under
the circumstances of the case, there was sufficient probable cause for said officers
to believe that accused was then and there committing a crime. LLphil
Probable cause has been defined as such facts and circumstances which could lead
a reasonable, discreet and prudent man to believe that an offense has been
committed, and that the objects sought in connection with the offense are in the
place sought to be searched. 8 The required probable cause that will justify a
warrantless search and seizure is not determined by any fixed formula but is
resolved according to the facts of each case. 9
Warrantless search of the personal effects of an accused has been declared by this
Court as valid, because of existence of probable cause, where the smell of
marijuana emanated from a plastic bag owned by the accused, 10 or where the
accused was acting suspiciously, 11 and attempted to flee. 12
Aside from the persistent reports received by the NARCOM that vehicles coming
from Sagada were transporting marijuana and other prohibited drugs, their
Commanding Officer also received information that a Caucasian coming from
Sagada on that particular day had prohibited drugs in his possession. Said
information was received by the Commanding Officer of NARCOM the very
same morning that accused came down by bus from Sagada on his way to Baguio
City.
When NARCOM received the information, a few hours before the apprehension
of herein accused, that a Caucasian travelling from Sagada to Baguio City was
carrying with him prohibited drugs, there was no time to obtain a search warrant.
In the Tangliben case, 13 the police authorities conducted a surveillance at the
Victory Liner Terminal located at Bgy. San Nicolas, San Fernando Pampanga,
against persons engaged in the traffic of dangerous drugs, based on information
supplied by some informers. Accused Tangliben who was acting suspiciously and
pointed out by an informer was apprehended and searched by the police
authorities. It was held that when faced with on-the spot information, the police
officers had to act quickly and there was no time to secure a search warrant.
It must be observed that, at first, the NARCOM officers merely conducted a
routine check of the bus (where accused was riding) and the passengers therein,
and no extensive search was initially made. It was only when one of the officers
noticed a bulge on the waist of accused, during the course of the inspection, that
accused was required to present his passport. The failure of accused to present his
identification papers, when ordered to do so, only managed to arouse the
suspicion of the officer that accused was trying to hide his identity. For is it not a
regular norm for an innocent man, who has nothing to hide from the authorities, to
readily present his identification papers when required to do so?
The receipt of information by NARCOM that a Caucasian coming from Sagada
had prohibited drugs in his possession, plus the suspicious failure of the accused
to produce his passport, taken together as a whole, led the NARCOM officers to
reasonably believe that the accused was trying to hide something illegal from the
authorities. From these circumstances arose a probable cause which justified the
warrantless search that was made on the personal effects of the accused. In other
words, the acts of the NARCOM officers in requiring the accused to open his
pouch bag and in opening one of the wrapped objects found inside said bag
(which was discovered to contain hashish) as well as the two (2) travelling bags
containing two (2) teddy bears with hashish stuffed inside them, were prompted
by accused's own attempt to hide his identity by refusing to present his passport,
and by the information received by the NARCOM that a Caucasian coming from
Sagada had prohibited drugs in his possession. To deprive the NARCOM agents
145
of the ability and facility to act accordingly, including, to search even without FIRST DIVISION
warrant, in the light of such circumstances, would be to sanction impotence and
ineffectiveness in law enforcement, to the detriment of society.
[G.R. No. 89139. August 2, 1990.]
WHEREFORE, premises considered, the appealed judgment of conviction by the
trial court is hereby AFFIRMED. Costs against the accused-appellant. ROMEO POSADAS y ZAMORA, petitioner, vs. THE
HONORABLE COURT OF APPEALS and THE
SO ORDERED. PEOPLE OF THE PHILIPPINES, respondents.

Melencio-Herrera, Paras, Feliciano, Bidin, Grio-Aquino, Medialdea, Regalado

Rudy G. Agravante for petitioner.
and Davide, Jr., JJ., concur.

Sarmiento, J., is on leave. SYLLABUS

||| (People v. Malmstedt, G.R. No. 91107, June 19, 1991)

1. REMEDIAL LAW; REVISED RULES ON CRIMINAL PROCEDURE;
ARREST WITHOUT WARRANT; SEC. 5, RULE 113 THEREOF. From the
foregoing provision of law it is clear that an arrest without a warrant may be
effected by a peace officer or private person, among others, when in his presence
the person to be arrested has committed, is actually committing, or is attempting
to commit an offense; or when an offense has in fact just been committed, and he
has personal knowledge of the facts indicating that the person arrested has
committed it.

2. CONSTITUTIONAL LAW; BILL OF RIGHTS; WARRANTLESS SEARCH

AND SEIZURE; NOT INCIDENTAL TO A LAWFUL ARREST IN THE CASE
AT BAR. The Solicitor General, in justifying the warrantless search and
seizure of the buri bag then carried by the petitioner, argued that when the two
policemen approached the petitioner, he was actually committing or had just
committed the offense of illegal possession of firearms and ammunitions in the
presence of the police officers and consequently the search and seizure of the
contraband was incidental to the lawful arrest in accordance with Section 12, Rule
126 of the 1985 Rules on Criminal Procedure. We disagree. At the time the peace
officers in this case identified themselves and apprehended the petitioner as he
attempted to flee they did not know that he had committed, or was actually
committing the offense of illegal possession of firearms and ammunitions. They
just suspected that he was hiding something in the buri bag. They did now know
what its contents were. The said circumstances did not justify an arrest without a
warrant.

3. ID.; ID.; ID.; CAN BE VALIDLY EFFECTED WITHOUT BEING

PRECEDED BY AN ARREST; CASE AT BAR. However, there are many

146
instances where a warrant and seizure can be effected without necessarily being
preceded by an arrest, foremost of which is the "stop and search" without a search
warrant at military or police checkpoints, the constitutionality or validity of which
has been upheld by this Court in Valmonte vs. de Villa. As between a warrantless
search and seizure conducted at military or police checkpoints and the search
thereat in the case at bar, there is no question that, indeed, the latter is more
reasonable considering that unlike in the former, it was effected on the basis of a
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. It is too much indeed to require the police officers to
search the bag in the possession of the petitioner only after they shall have
obtained a search warrant for the purpose. Such an exercise may prove to be
useless, futile and much too late.
DECISION
GANCAYCO, J p:
The validity of a warrantless search on the person of petitioner is put into issue in
this case.
On October 16, 1986 at about 10:00 o'clock in the morning Pat. Ursicio Ungab
and Pat. Umbra Umpar, both members of the Integrated National Police (INP) of
the Davao Metrodiscom assigned with the Intelligence Task Force, were
conducting a surveillance along Magallanes Street, Davao City. While they were
within the premises of the Rizal Memorial Colleges they spotted petitioner
carrying a "buri" bag and they noticed him to be acting suspiciously.
They approached the petitioner and identified themselves as members of the INP.
Petitioner attempted to flee but his attempt to get away was thwarted by the two
notwithstanding his resistance.
They then checked the "buri" bag of the petitioner where they found one (1)
caliber .38 Smith & Wesson revolver with Serial No. 770196 1 two (2) rounds of
live ammunition for a .38 caliber gun, 2 a smoke (tear gas) grenade 3 a and two (2)
live ammunitions for a .22 caliber gun. 4 They brought the petitioner to the police
station for further investigation. In the course of the same, the petitioner was
asked to show the necessary license or authority to possess firearms and
ammunitions found in his possession but he failed to do so. He was then taken to
the Davao Metrodiscom office and the prohibited articles recovered from him
were indorsed to M/Sgt. Didoy, the officer then on duty. He was prosecuted for
illegal possession of firearms and ammunitions in the Regional Trial Court of
Davao City wherein after a plea of not guilty and trial on the merits a decision was
rendered on October 8, 1987 finding petitioner guilty of the offense charged as
follows:
"WHEREFORE, in view of all the foregoing, this Court finds
the accused guilty beyond reasonable doubt of the offense
charged.
It appearing that the accused was below eighteen (18) years
old at the time of the commission of the offense (Art. 68, par.
2), he is hereby sentenced to an indeterminate penalty ranging
from TEN (10) YEARS and ONE (1) DAY of prision mayor
to TWELVE (12) Years, FIVE (5) months and Eleven (11)
days of Reclusion Temporal, and to pay the costs.
The firearm, ammunitions and smoke grenade are forfeited in
favor of the government and the Branch Clerk of Court is
hereby directed to turn over said items to the Chief, Davao
Metrodiscom, Davao City." 5
Not satisfied therewith the petitioner interposed an appeal to the Court of Appeals
wherein in due course a decision was rendered on February 23, 1989 affirming in
toto the appealed decision with costs against the petitioner. 6
Hence, the herein petition for review, the main thrust of which is that there being
no lawful arrest or search and seizure, the items which were confiscated from the
possession of the petitioner are inadmissible in evidence against him. LexLib
The Solicitor General, in justifying the warrantless search of the buri bag then
carried by the petitioner, argues that under Section 12, Rule 126 of the Rules of
Court a person lawfully arrested may be searched for dangerous weapons or
anything used as proof of a commission of an offense without a search warrant. It
is further alleged that the arrest without a warrant of the petitioner was lawful
under the circumstances.
Section 5, Rule 113 of the 1985 Rules on Criminal Procedure provides as follows:
147
 "SEC. 5. Arrest without warrant; when lawful. A peace
officer or a private person may, without a warrant, arrest a
person:
(a) When in his presence, the person to be arrested has
committed, is actually committing, or is attempting to commit
an offense;
(b) When an offense has 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 has
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.
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. (6a, 17a)"
From the foregoing provision of law it is clear that an arrest without a warrant
may be effected by a peace officer or private person, among others, when in his
presence the person to be arrested has committed, is actually committing, or is
attempting to commit an offense; or when an offense has in fact just been
committed, and he has personal knowledge of the facts indicating that the person
arrested has committed it.
The Solicitor General argues that when the two policemen approached the
petitioner, he was actually committing or had just committed the offense of illegal
possession of firearms and ammunitions in the presence of the police officers and
consequently the search and seizure of the contraband was incidental to the lawful
arrest in accordance with Section 12, Rule 126 of the 1985 Rules on Criminal
Procedure. We disagree.
At the time the peace officers in this case identified themselves and apprehended
the petitioner as he attempted to flee they did not know that he had committed, or
was actually committing the offense of illegal possession of firearms and
ammunitions. They just suspected that he was hiding something in the buri bag.
They did now know what its contents were. The said circumstances did not justify
an arrest without a warrant. llcd
However, there are many instances where a warrant and seizure can be effected
without necessarily being preceded by an arrest, foremost of which is the "stop
and search" without a search warrant at military or police checkpoints, the
constitutionality or validity of which has been upheld by this Court in Valmonte
vs. de Villa, 7 as follows:
"Petitioner Valmonte's general allegation to the effect that he
had been stopped and searched without a search warrant by
the military manning the checkpoints, without more, i.e.,
without stating the details of the incidents which amount to a
violation of his right against unlawful search and seizure, is
not sufficient to enable the Court to determine whether there
was a violation of Valmonte's right against unlawful search
and seizure. Not all searches and seizures are prohibited.
Those which are reasonable are not forbidden. A reasonable
search is not to be determined by any fixed formula but is to
be resolved according to the facts of each case.
Where, for example, the officer merely draws aside the
curtain of a vacant vehicle which is parked on the public fair
grounds, or simply looks into a vehicle or flashes a light
therein, these do not constitute unreasonable search.
The setting up of the questioned checkpoints in Valenzuela
(and probably in other areas) may be considered as a security
measure to enable the NCRDC to pursue its mission of
establishing effective territorial defense and maintaining
peace and order for the benefit of the public. Checkpoints
may also be regarded as measures to thwart plots to
destabilize the government in the interest of public security.
In this connection, the Court may take judicial notice of the
shift to urban centers and their suburbs of the insurgency
movement, so clearly reflected in the increased killings in
cities of police and military men by NPA "sparrow units," not
to mention the abundance of unlicensed firearms and the
alarming rise in lawlessness and violence in such urban
centers, not all of which are reported in media, most likely
brought about by deteriorating economic conditions which
all sum up to what one can rightly consider, at the very least,
148
 as abnormal times. Between the inherent right of the state to
protect its existence and promote public welfare and an
individual's right against a warrantless search which is
however reasonably conducted, the former should prevail.
True, the manning of checkpoints by the military is
susceptible of abuse by the men in uniform in the same
manner that all governmental power is susceptible of abuse.
But, at the cost of occasional inconvenience, discomfort and
even irritation to the citizen, the checkpoints during these
abnormal times, when conducted within reasonable limits, are
part of the price we pay for an orderly society and a peaceful
community. (Emphasis supplied)."
Thus, as between a warrantless search and seizure conducted at military or police
checkpoints and the search thereat in the case at bar, there is no question that,
indeed, the latter is more reasonable considering that unlike in the former, it was
effected on the basis of a 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.
It is too much indeed to require the police officers to search the bag in the
possession of the petitioner only after they shall have obtained a search warrant
for the purpose. Such an exercise may prove to be useless, futile and much too
late.
In People vs. CFI of Rizal, 8 this Court held as follows:
". . . In the ordinary cases where warrant is indispensably
necessary, the mechanics prescribed by the Constitution and
reiterated in the Rules of Court must be followed and
satisfied. But We need not argue that there are exceptions.
Thus in the extraordinary events where warrant is not
necessary to effect a valid search or seizure, or when the latter
cannot be performed except without warrant, what constitutes
a reasonable or unreasonable search or seizure becomes
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."
The Court reproduces with approval the following disquisition of the Solicitor
General: cdphil
"The assailed search and seizure may still be justified as akin
to a "stop and frisk" situation whose object is either to
determine the identity of a suspicious individual or to
maintain the status quo momentarily while the police officer
seeks to obtain more information. This is illustrated in the
case of Terry vs. Ohio, 392 U.S. 1 (1968). In this case, two
men repeatedly walked past a store window and returned to a
spot where they apparently conferred with a third man. This
aroused the suspicion of a police officer. To the experienced
officer, the behavior of the men indicated that they were
sizing up the store for an armed robbery. When the police
officer approached the men and asked them for their names,
they mumbled a reply. Whereupon, the officer grabbed one of
them, spun him around and frisked him. Finding a concealed
weapon in one, he did the same to the other two and found
another weapon. In the prosecution for the offense of carrying
a concealed weapon, the defense of illegal search and seizure
was put up. The United States Supreme Court held that "a
police officer may in appropriate circumstances and in an
appropriate manner approach a person for the purpose of
investigating possible criminal behavior even though there is
no probable cause to make an arrest." In such a situation, it is
reasonable for an officer rather than simply to shrug his
shoulder and allow a crime to occur, to stop a suspicious
individual briefly in order to determine his identity or
maintain the status quo while obtaining more information. . . .
Clearly, the search in the case at bar can be sustained under
the exceptions heretofore discussed, and hence, the
constitutional guarantee against unreasonable searches and
seizures has not been violated." 9
WHEREFORE, the petition is DENIED with costs against petitioner.
SO ORDERED.
149
THIRD DIVISION
[G.R. No. 85177. August 20, 1990.]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.
MOISES MASPIL, JR. y WAYWAY and SALCEDO
BAGKING y ALTAKI, defendants-appellants.
The Solicitor General for plaintiff-appellee.
Peter C. Fianza for defendants-appellants.
SYLLABUS
1. REMEDIAL LAW; EVIDENCE; CREDIBILITY OF WITNESSES; MINOR
INCONSISTENCIES DO NOT AFFECT CREDIBILITY. It has been ruled
that inconsistencies in the testimonies of the prosecution witnesses not on material
points is not fatal. Moreover, minor inconsistencies are to be expected but must be
disregarded if they do not affect the basic credibility of the evidence as a whole.
(People v. Marcos, G.R. No. 83325, May 8, 1990)
2. ID.; ID.; PRESUMPTION THAT OFFICIAL DUTY WAS PERFORMED
APPLICABLE TO CASE AT BAR. There is nothing in the records to suggest
that the arrest was motivated by any reason other than the desire of the police
officers to accomplish their mission. Courts generally give full faith and credit to
police officers when the facts and circumstances surrounding then acts sustain the
presumption that they have performed their duties in a regular manner.
3. ID.; ID.; CREDIBILITY OF WITNESSES; TESTIMONY MUST CONFORM
TO HUMAN EXPERIENCE; CASE AT BAR. While the appellants maintain
that they did not know what was in the cargo. Their main concern was in going
back to Baguio City and they saw no need to question their two passengers on
why flowers were being kept in closed cans and sacks, the appellants' version is
not believable. It is inconceivable that the appellants would not even bother to ask
the names of the strangers who approached them in a restaurant at night wanting
to hire their jeepney, considering that they were familiar with the identity of the
passenger, Luisa Mendoza, who hired them to transport her goods to Abatan,
Buguias, Benguet. It is likewise incredible that the appellants did not show the
slightest curiousity as to why flowers were being kept in closed tin cans and
sealed sacks and cellophane. On the other hand, the appellants had clear
knowledge that Luisa Mendoza was transporting cartons containing dried fish and
canned goods on the trip out of Baguio. It is contrary to human experience that the
appellants would inquire about the name of the passenger and the cargo she was
loading on their jeep and not doing the same about another who would transport
goods on a midnight trip. Well-settled is the rule that evidence to be believed,
must not only proceed from the mouth of a credible witness but it must be
credible itself. No better test has yet been found to measure the value of a witness
than its conformity to the knowledge and common experience of mankind.
4. ID.; ID.; ADMISSIBILITY; SLIGHT DISCREPANCY IN THE WEIGHT IN
KILOS OF MARIJUANA, NOT MATERIAL IN CASE AT BAR. While there
is a discrepancy of 3.76 between the number of kilos stated in the information
(111.9 kilos) and in the report of the forensic chemist (115.66 kilos), the
marijuana examined by the forensic chemist, which was contained in three big
round tin cans, two jute sacks (there was really only one jute sack colored light
green which was confiscated but since one of the plastic sacks [green] appeared to
be tattered, some of its contents were transferred to a white jute sack), (T.S.N.,
June 23, 1987, p. 5) and two plastic bags colored yellow and green (T.S.N., June
23, 1987, p. 3), was positively identified to be the same as those confiscated from
the appellants. Lt. Valeroso testified that Exhibits "B" (yellow plastic bag), "C"
light green jute sack, "D" (green plastic bag), "E" (one big can), "F" (second can),
"G" (third can) were, indeed, the same articles which he saw at the back of the
jeepney of the appellants. (T.S.N., September 16, 1987, p. 5) One of the
appellants, Moises Maspil, even admitted that the articles identified by Lt.
Valeroso in his testimony were indeed, the same articles confiscated from their
jeepney at Sayangan, Atok, Benguet. (T.S.N., February 24, 1988, pp. 34-35)
Moreover, the words "more or less" following the weight in kilos of the marijuana
in the questioned information declare that the number of kilos stated therein is just
an approximation. It can therefore be a little lighter or heavier. The slight
discrepancy is not material.
5. ID.; ID.; ID.; SEARCH WITHOUT WARRANT AT CHECKPOINTS;
VALIDITY THEREOF; CASE AT BAR. Upon inspection at a checkpoint in
front of the Municipal Hall at Sayangan, Atok, Benguet, the jeep driven by Maspil
with Bagking as his companion was found loaded with suspected dried marijuana
leaves. The appellants were arrested as a consequence and the suspected
marijuana leaves were confiscated. The search was conducted within reasonable
limits. There was information that a sizeable volume of marijuana will be
transported to take advantage of the All Saints Day holiday wherein there will be
a lot of people going to and from Baguio City (T.S.N., September 16, 1987, p. 6).
In fact, during the three day (October 30, 1986 to November 1, 1986) duration of
the checkpoint, there were also other drug related arrests made aside from that of
150
the two appellants. As held in the case of Valmonte vs. de Villa, G.R. No. 83988,
September 29, 1989, checkpoints during these abnormal times, when conducted
within reasonable limits are part of the price we pay for an orderly society and a
peaceful community. But even without the Valmonte ruling, the search would still
be valid. This case involves a search incident to a lawful arrest which is one of the
exceptions to the general rule requiring a search warrant. This exception is
embodied in Section 12 of Rule 126 of the 1985 Rules on Criminal Procedure.
The appellants were caught in flagrante delicto since they were transporting the
prohibited drugs at the time of their arrest. (People v. Tangliben, G.R. No. 63630,
April 6, 1990) A crime was actually being committed.
6. ID.; ID.; ID.; ID.; ID.; NO SUFFICIENT TIME FOR POLICE OFFICERS TO
OBTAIN A WARRANT IN CASE AT BAR. The appellants, however, cite the
case of People v. Aminnudin, (163 SCRA 402 [1988]). In said case, the PC
officers received information that the accused-appellant, on board a vessel bound
for Iloilo City, was carrying marijuana. When the accused-appellant was
descending the gangplank, the PC officers detained him and inspected the bag that
he was carrying and found marijuana. The Court ruled that since the marijuana
was seized illegally, it is inadmissible in evidence. There are certain facts of the
said case which are not present in the case before us. In the Aminnudin case, the
records showed that there was sufficient time and adequate information for the PC
officers to have obtained a warrant. The officers knew the name of the accused,
that the accused was on board M/V Wilcon 9, bound to Iloilo and the exact date of
the arrival of the said vessel. On the other hand, in this case there was no
information as to the exact description of the vehicle and no definite time of the
arrival. A jeepney cannot be equated with a passenger ship on the high seas. The
ruling in the Aminnudin case, is not applicable to the case at bar.
DECISION
GUTIERREZ, JR., J p:
This petition is an appeal from the decision of the Regional Trial
Court of Baguio City, Branch 5, the dispositive portion of which reads:
"WHEREFORE, the Court finds and declare the accuse
MOISES MASPIL, JR. y WAYWAY and SALCEDO
BAGKING y ALTAKI guilty beyond reasonable doubt of the
crime of illegal transportation of marijuana as charged and
hereby sentences EACH of them to suffer LIFE
IMPRISONMENT; to pay a fine of P20,000.00, without
subsidiary imprisonment in case of insolvency; and to pay
their proportionate shares in the costs.
The confiscated marijuana (Exhibits "B", "B-1" to "B-23";
"C", "C-1" to "C-16", "D", "D-1" to "D-20"; "E", "E-1", to
"E-14"; "F", "F-1"; "G", "G-1") are hereby declared forfeited
in favor of the Government and upon the finality of this
decision, the Branch Clerk of Court is directed to turn over
the same to the Dangerous Drugs Board (NBI), through the
Chief, PC Crime Laboratory, Regional Unit No. 1 Camp
Dangwa, La Trinidad, Benguet, for disposition in accordance
with law." (Rollo, pp. 25-26)
In Criminal Case No. 4263-R, the information filed against the two accused
alleged:
"That on or about the 1st day of November, 1986, at
Sayangan, Municipality of Atok, Province of Benguet,
Philippines, and within the jurisdiction of this Honorable
Court, the above-named accused, conspiring, confederating
and mutually aiding each other, and without any authority of
law, did then and there willfully, unlawfully and knowingly
transport and carry in transit from Sinto, Bauko, Mt. Province
to Atok, Benguet One Hundred Eleven Kilos and Nine Grams
(111.9 kilos), more or less, of dried marijuana leaves which
are sources of dangerous and prohibited drugs and from
which dangerous and prohibited drugs nay be derived and
manufactured, in violation of the said law." (Rollo, p. 11)
The narration of facts by the trial court is as follows:
"According to Jerry Veleroso, Sgt. Amador Ablang and Sgt.
Florentino Baillo, all members of the First Narcotics Regional
Unit of the Narcotics Command stationed in Baguio City,
(See also Exhibit "I") on October 30, 1986, they established a
checkpoint in front of the Municipal Hall at Sayangan, Atok,
Benguet, which is along the Halsema Highway, to check on
vehicles proceeding to Baguio City because their
Commanding Officer, Maj. Basilio Cablayan, had been earlier
tipped off by some confidential informers that the herein
151
accused Maspil and Bagking would be transporting a large
volume of marijuana to Baguio City. The informers went
along with the operatives to Sayangan.
"At about 2:00 o'clock in the early morning of November 1,
the operatives intercepted a Sarao type jeep driven by Maspil
with Bagking as his companion. Upon inspection, the jeep
was found loaded with two (2) plastic sacks (Exhibits "B" and
"D"), one (1) jute sack (Exhibit "C") and three (3) big round
tin cans (Exhibits "E", "F" and "G") which, when opened
contained several bundles of suspected dried marijuana leaves
(Exhibits "B-1", to "B-23"; "C-1" to "C-16"; "D-1" to "D-20";
"E-1" to "E-14"; "F-1" and "G-1").
"Maspil and Bagking were arrested and the suspected
marijuana leaves were confiscated.
"The confiscated items were later on referred to the PC Crime
Laboratory, Regional Unit I, for examination (Exhibit "A").
Forensic Chemist Carlos V. Figuerroa performed the
requested examination and determined that the specimen,
with an aggregate weight of 115.66 kilos, were positive to the
standard tests for marijuana.
"The accused admitted that the marijuana dried leaves were
indeed confiscated from the jeep being then driven by Maspil
with Bagking as his helper. However, they claimed that the
prohibited drugs belonged to two of their passengers who
loaded them in the jeep as paying cargo for Baguio City
without the accused knowing that they were marijuana.
"The accused declared that on October 31, 1986, at the burned
area along Lakandula Street, Baguio City, a certain Mrs.
Luisa Mendoza hired the jeep of Maspil to transport her stock
of dried fish and canned goods contained in cartons to
Abatan, Buguias, Benguet, because her own vehicle broke
down. They left Baguio City at about 1:00 o'clock in the
afternoon (11:30 in the morning, according to Bagking) with
Mrs. Mendoza, her helper and salesgirls on board the jeep
with Maspil as driver and Bagking as his own helper. They
arrived at Abatan at about 6:00 o'clock in the evening.
"After unloading their cargo, Maspil and Bagking repaired to
a restaurant for their dinner before undertaking the trip back
to Baguio City. While thus eating, they were approached by
two persons, one of whom they would learn later on to be a
certain Danny Buteng. Buteng inquired if they were going to
Baguio City and upon being given an affirmative answer, he
said that he would ride with them and that he has some cargo.
Asked what the cargo was, Buteng replied that they were
flowers in closed tin cans and sealed sacks for the
commemoration of All Souls Day in Baguio City. After
Buteng had agreed to Maspil's condition that he would pay for
the space to be occupied by his cargo, Buteng himself and his
companion loaded the cargo and fixed them inside Maspil's
jeep.
"Maspil and Bagking left Abatan at about 7:00 o'clock that
same evening of October 31. Aside from Buteng and
companion they had four other passengers. These four other
passengers alighted at Natubleng, Buguias, Benguet.
"Upon reaching Sayangan, Atok, Benguet, Maspil stopped at
the Marosan Restaurant where they intended to take coffee.
Their remaining passengers Buteng and companion
alighted and went to the restaurant. However, a soldier waved
at Maspil to drive to where he was, which Maspil did. The
soldier secured Maspil's permission to inspect their cargo
after which he grabbed Maspil on the latter's left shoulder and
asked who owned the cargo. Maspil told the soldier that the
cargo belonged to their passengers who went to the restaurant.
The soldier called for his companions and they went to look
for Maspil's passengers in the restaurant. Later on, they
returned and placed Maspil and Bagking under arrest since
their cargo turned out to be marijuana.
"Lawrence Balonglong, alias Banawe, a radio reporter of
DZWX Bombo Radio who was invited by Lt. Valeroso to
witness the operation, affirmed the unsuccessful pursuit of the
alleged two companions of Maspil and Bagking. He recalled
that he was awakened from his sleep at the town hall in
152
Sayangan after the arrest of Maspil and Bagking. When he
went to the scene, the NARCOM operatives boarded the jeep
of Maspil to chase the two companions of Maspil and
Bagking. Balonglong climbed on top of the jeep with his
camera to join the chase. They proceeded towards the
direction of Bontoc but failed to catch anyone. Hence, they
returned.
"Thereupon, Maspil and Bagking were taken to the town hall
where they were allegedly maltreated to admit ownership of
the confiscated marijuana. At about 4:00 o'clock in the
afternoon of November 1, the soldiers took them away from
Sayangan to be transferred to their station at Baguio City. On
their way, particularly at Km. 32 or 34, they met Mike
Maspil, an elder brother of Moises Maspil, and the soldiers
called for him and then Lt. Valeroso and his men mauled him
on the road.
"Mike testified that between 3:00 and 4:00 o'clock in the
afternoon of November 1, he was informed by a neighbor that
his brother Moises was detained at the Atok Municipal Jail.
So he called for Jose Pos-el and James Longages, his driver
and helper, respectively, to go along with him to see Moises.
They rode in his jeep. On the way, they met the group of Lt.
Valeroso. For no apparent reason, Lt. Valeroso boxed and
kicked him several times. Thereafter, Lt. Valeroso placed him
under arrest together with his driver and helper. They were all
brought to a shoe store on Gen. Luna Road, Baguio City,
together with Moises and Bagking. There, Lt. Valeroso got
his wallet containing P210.00 and Seiko wrist watch but the
receipt (Exhibit "3") was issued by a certain Miss Pingil, a
companion of Valeroso. He was released after nine days. He
then went to Lt. Valeroso to claim his wallet, money and
watch but he was told that they were with Miss Pingil.
However, when he went to Miss Pingil, the latter said that the
items were with Lt. Valeroso. He sought the assistance of
then Tourism Deputy Minister Honorato Aquino who
assigned a lawyer to assist him. The lawyer advised him to
file a case against Lt. Valeroso but because of the intervening
congressional elections, the matter has never been pursued."
(Rollo, p. 21-24)
The appellants raise the following assignment of errors in their appeal, to wit:
I
THAT THE TRIAL COURT ERRED IN NOT FINDING
THAT THE ALLEGED MARIJUANA AS CHARGED IN
THE INFORMATION IS DIFFERENT FROM THAT
PRESENTED FOR LABORATORY EXAMINATION.
II
THAT THE TRIAL COURT ERRED IN FINDING THAT
THERE WERE ONLY TWO OCCUPANTS, THE
APPELLANTS, IN THE VEHICLE WHERE THE
ALLEGED MARIJUANA WAS CONFISCATED.
III
THAT THE TRIAL COURT ERRED IN FINDING THAT
THE ACCUSED KNEW THAT THE CARGO THEY WERE
TRANSPORTING WAS MARIJUANA.
IV
THAT THE TRIAL COURT ERRED IN ADMITTING IN
EVIDENCE THE ALLEGED CONFISCATED
MARIJUANA.
V
THAT THE TRIAL COURT ERRED IN SHIFTING FROM
THE PROSECUTION THE BURDEN OF PROVING THE
COMMISSION OF THE OFFENSE CHARGED TO THE
APPELLANTS TO PROVE THEIR INNOCENCE." (Rollo,
p. 40)
The main defense of the appellants is their claim that the prohibited drugs
belonged to their two passengers who loaded them in the jeep as paying cargo
without the appellants knowing that the cargo was marijuana.
153
In the second and third assignment of errors, the appellants claim that the trial Q Where were you when these two persons were
court erred in not appreciating their version of the facts. apprehended?

The appellants state that the trial court's reliance on Sgt. Baillo's testimony that A I was in the Municipal Hall asleep, sir.
they were the only ones in the jeep cannot be given credence as Sgt. Baillo's
testimony is full of inconsistencies. Q How did you know then that these people were
apprehended?
The appellants cite Sgt. Baillo's inconsistencies as to the time of the arrest whether
morning or afternoon, the time the checkpoint was removed and the persons who A It is like this, sir, on the night of October 31, I was
were with him at the time of arrest. then asleep and at around 11:00, I guess, p.m.,
they awakened me so I went and I saw these
It has been ruled that inconsistencies in the testimonies of the prosecution two guys being apprehended by the Narcom
witnesses not on material points is not fatal. Moreover, minor inconsistencies are operative.
to be expected but must be disregarded if they do not affect the basic credibility of
the evidence as a whole. (People v. Marcos, G.R. No. 83325, May 8, 1990) Court:

The defense even state that there were a lot of policemen (T.S.N., December 1, Q You saw them being apprehended?
1987, p. 22) and it was but natural that there would be confusion on who was
there at the time of the arrest.
A No, sir . . . I saw them there.

The trial court gave credence to the positive and categorical statement of Sgt. Q Already apprehended?
Baillo that there were only two occupants, and these were the appellants inside the
jeepney at the time (T.S.N., June 30, 1987, p. 18). We see no cogent reason to
reverse this finding of fact. A Already apprehended.

There is nothing in the records to suggest that the arrest was motivated by any Atty. Fianza:
reason other than the desire of the police officers to accomplish their mission.
Courts generally give full faith and credit to police officers when the facts and Q And when you saw these persons, what did you do,
circumstances surrounding then acts sustain the presumption that they have if any?
performed their duties in a regular manner. (Rule 131, Section 5 (m), Rules of
Court; People v. Marcos, supra; People v. Yap and Mendoza, G.R. Nos. 87088- A What I recall is that when I went to the road, where
89, May 9, 1990). these two guys were apprehended, the
operatives boarded the same jeep and I even
The appellants put forward the testimony of Lawrence Balonglong which climbed the jeep . . . on top of the jeep
corroborates and affirms their stand that there were, indeed, passengers in the holding my camera and tape recorder and we .
jeepney. . . I don't know . . . they chased, according to
the operatives, they chased two companions
However, a close perusal of said testimony reveals no such corroboration. The of the two arrested guys." (T.S.N., May 11,
pertinent portions of Balonglong's testimony is as follows: 1988, p. 4)

"xxx xxx xxx

154
 In their brief, the appellants even admit that "he (Balonglong) did not see the
passengers" and it was just his impression that there were other people
present. (Appellant's Brief, p. 7)
The appellants maintain that they did not know what was in the cargo. Their main
concern was in going back to Baguio City and they saw no need to question their
two passengers on why flowers were being kept in closed cans and sacks. They
were apprehended after midnight. They traversed a lonely and reputedly
dangerous portion of the mountain highway.
The appellants' version is not believable. It is inconceivable that the appellants
would not even bother to ask the names of the strangers who approached them in a
restaurant at night wanting to hire their jeepney, considering that they were
familiar with the identity of the passenger, Luisa Mendoza, who hired them to
transport her goods to Abatan, Buguias, Benguet.
It is likewise incredible that the appellants did not show the slightest curiousity as
to why flowers were being kept in closed tin cans and sealed sacks and
cellophane. On the other hand, the appellants had clear knowledge that Luisa
Mendoza was transporting cartons containing dried fish and canned goods on the
trip out of Baguio. It is contrary to human experience that the appellants would
inquire about the name of the passenger and the cargo she was loading on their
jeep and not doing the same about another who would transport goods on a
midnight trip.
Well-settled is the rule that evidence to be believed, must not only proceed from
the mouth of a credible witness but it must be credible itself. No better test has yet
been found to measure the value of a witness than its conformity to the knowledge
and common experience of mankind. (People v. Maribung, 149 SCRA 292, 297
[1987]; People v. Aldana, G.R. No. 81817, July 27, 1989; People v. Pascua, G.R.
No. 82303, December 21, 1989).
The appellants further allege that if, indeed they knew about the contents of their
cargo, they would have adopted means to prevent detection or to evade arrest.
At the time the appellants were being motioned by the policemen to come nearer
the checkpoint, there was no way that the appellants could have evaded the arrest
without putting their lives in jeopardy. They decided to just brazen it out with
police and insist on their version of the story.
As for the other assigned errors, the appellants in the first assigned error, contend
that since there is a discrepancy of 3.76 between the number of kilos stated in the
information (111.9 kilos) and in the report (115.66 kilos) of the forensic chemist,
it is very likely that the marijuana presented as evidence was not the one
confiscated from the appellants or even if they were the same, it could have
already been tampered with. The appellants conclude that the marijuana then,
cannot be admitted as evidence.
The marijuana examined by the forensic chemist, which was contained in three
big round tin cans, two jute sacks (there was really only one jute sack colored
light green which was confiscated but since one of the plastic sacks [green]
appeared to be tattered, some of its contents were transferred to a white jute sack),
(T.S.N., June 23, 1987, p. 5) and two plastic bags colored yellow and green
(T.S.N., June 23, 1987, p. 3), was positively identified to be the same as those
confiscated from the appellants. This is very clear from the testimony of Lt.
Valeroso who stated:
"xxx xxx xxx
Q When you went down, where were these two
suspects, as you said?
A They were sitted (sic) at the front seat.
Q Front seat of what?
A The jeep, sir.
Q And did you ask or see what was inside the jeep?
A Yes.
Q And what were those?
A It was all suspected marijuana dried leaves
contained in three big cans, one sack colored
green, two sacks colored yellow and green."
(Italics supplied, T.S.N., September 16, 1987,
p. 4)
155
 Lt. Valeroso further testified that Exhibits "B" (yellow plastic bag), "C" light
green jute sack, "D" (green plastic bag), "E" (one big can), "F" (second can),
"G" (third can) were, indeed, the same articles which he saw at the back of
the jeepney of the appellants. (T.S.N., September 16, 1987, p. 5)
One of the appellants, Moises Maspil, even admitted that the articles identified by
Lt. Valeroso in his testimony were indeed, the same articles confiscated from their
jeepney at Sayangan, Atok, Benguet. (T.S.N., February 24, 1988, pp. 34-35)
Moreover, the words "more or less" following the weight in kilos of the marijuana
in the questioned information declare that the number of kilos stated therein is just
an approximation. It can therefore be a little lighter or heavier. The slight
discrepancy is not material.
Another ground stated by the appellants for the inadmissibility in evidence of the
confiscated marijuana is that the marijuana allegedly seized from them was a
product of an unlawful search without a warrant.
In the case of Valmonte v. de Villa, G.R. No. 83988, September 29, 1989, the
Court held that:
"xxx xxx xxx
True, the manning of checkpoints by the military is
susceptible of abuse by the men in uniform, in the same
manner that all governmental power is susceptible of abuse.
But at the cost of occasional inconvenience, discomfort and
even irritation to the citizen, the checkpoints during these
abnormal times, when conducted within reasonable limits are
part of the price we pay for an orderly society and a peaceful
community."
The search was conducted within reasonable limits. There was information that a
sizeable volume of marijuana will be transported to take advantage of the All
Saints Day holiday wherein there will be a lot of people going to and from Baguio
City (T.S.N., September 16, 1987, p. 6). In fact, during the three day (October 30,
1986 to November 1, 1986) duration of the checkpoint, there were also other drug
related arrests made aside from that of the two appellants.
But even without the Valmonte ruling, the search would still be valid. This case
involves a search incident to a lawful arrest which is one of the exceptions to the
general rule requiring a search warrant. This exception is embodied in Section 12
of Rule 126 of the 1985 Rules on Criminal Procedure which provides:
"SEC. 12. Search incident to lawful arrest. A person
lawfully arrested may be searched for dangerous weapons or
anything which may be used as proof of the commission of an
offense, without a search warrant."
and Rule 113, Section 5 (1) which state:
"SEC. 5. Arrest without warrant; when lawful. A peace
officer or a private person may, without a warrant, arrest a
person:
(a) When, in his presence, the person to be arrested has
committed, is actually committing, or is attempting to commit
an offense."
This case falls squarely within the exceptions. The appellants were caught in
flagrante delicto since they were transporting the prohibited drugs at the time of
their arrest. (People v. Tangliben, G.R. No. 63630, April 6, 1990) A crime was
actually being committed.
The appellants, however, cite the case of People v. Aminnudin, (163 SCRA 402
[1988]). In said case, the PC officers received information that the accused-
appellant, on board a vessel bound for Iloilo City, was carrying marijuana. When
the accused-appellant was descending the gangplank, the PC officers detained him
and inspected the bag that he was carrying and found marijuana. The Court ruled
that since the marijuana was seized illegally, it is inadmissible in evidence.
There are certain facts of the said case which are not present in the case before us.
In the Aminnudin case, the records showed that there was sufficient time and
adequate information for the PC officers to have obtained a warrant. The officers
knew the name of the accused, that the accused was on board M/V Wilcon 9,
bound to Iloilo and the exact date of the arrival of the said vessel.
On the other hand, in this case there was no information as to the exact description
of the vehicle and no definite time of the arrival. A jeepney cannot be equated
with a passenger ship on the high seas. The ruling in the Aminnudin case, is not
applicable to the case at bar.
156
As for the fifth and last assigned error we agree with the Solicitor General that:
"Examination of the testimonies of appellants show that they
admit the fact that the confiscated marijuana was taken from
their jeep while they were transporting it from Abatan,
Buguias, Benguet to Baguio City. This being so, the burden of
the prosecution to prove illegal transportation of prohibited
drugs punished under Section 4 of RA 6425, as amended, has
been satisfactorily discharged. The rule in civil as well as in
criminal cases is that each party must prove his own
affirmative allegations. The prosecution avers the guilt of the
accused who is presumed to be innocent until the contrary is
proved. Therefore, the prosecution must prove such guilt by
establishing the existence of all elements of the crime
charged. But facts judicially known, presumed, admitted or
confessed need not be proved. (Rule 129, Sec. 4, Rules on
Evidence) (Appellee's Brief, p. 26-27)
WHEREFORE, the guilt of the appellants having been proved beyond reasonable
doubt, the appealed decision is hereby AFFIRMED.
SO ORDERED.
Fernan, C.J., Feliciano, Bidin and Cortes, JJ., concur.
||| (People v. Maspil, Jr. y Wayway, G.R. No. 85177, August 20, 1990)
THIRD DIVISION
[G.R. No. L-63630. April 6, 1990.]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. MEDEL
TANGLIBEN Y BERNARDINO, defendant-appellant.
The Office of the Solicitor General for plaintiff-appellee.
Katz N. Tierra for defendant-appellant.
SYLLABUS
1. REMEDIAL LAW; 1985 RULES ON CRIMINAL PROCEDURE;
EXCEPTIONS TO THE REQUIRING SEARCH WARRANT; CASE AT BAR.
One of the exceptions to the general rule requiring a search warrant is a search
incident to a lawful arrest. Thus, Section 12 of Rule 126 of the 1985 Rules on
Criminal Procedure provides: "Section 12. Search incident to a lawful arrest. A
person lawfully arrested may be searched for dangerous weapons or anything
which may be used as proof of the commission of an offense, without a search
warrant." Meanwhile, Rule 113, Sec. 5(a) provides: ". . . 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." Accused was caught in flagrante, since he was carrying
marijuana at the time of his arrest. This case therefore falls squarely within the
exception. The warrantless search was incident to a lawful arrest and is
consequently valid. Although the trial court's decision did not mention it, the
transcript of stenographic notes reveals that there was an informer who pointed to
the accused-appellant as carrying marijuana. (TSN, pp. 52-53) Faced with such
on-the-spot information, the police officers had to act quickly. There was not
enough time to secure a search warrant. We cannot therefore apply the ruling in
Aminnudin to the case at bar. To require search warrants during on-the-spot
apprehensions of drug pushers, illegal possessors of firearms, jueteng collectors,
smugglers of contraband goods, robbers, etc. would make it extremely difficult, if
not impossible to contain the crimes with which these persons are associated.
2. ID.; EVIDENCE; CREDIBILITY OF WITNESS; TRIAL COURT'S
FINDING; ENTITLED TO GREAT RESPECT AND ACCORDED THE
HIGHEST CONSIDERATION. As to doubtfulness of evidence, well-settled is
157
the rule that findings of the trial court on the issue of credibility of witnesses and
their testimonies are entitled to great respect and accorded the highest
consideration by the appellate court. Since credibility is a matter that is peculiarly
within the province of the trial judge, who had first hand opportunity to watch and
observe the demeanor and behavior of witnesses both for the prosecution and the
defense at the time of their testimony (People v. Tejada, G.R. No. 81520,
February 21, 1989; People v. Turla, 167 SCRA 278), we find no reason to disturb
the following findings.
3. ID.; ID.; REGULARITY OF OFFICIAL ACTS RELATIVE TO
ADMISSIBILITY OF STATEMENT TAKEN DURING IN-CUSTODY
INTERROGATION, MUST BE PROVED DURING TRIAL. The alleged
extrajudicial confession of the accused which, on the other hand, he categorically
denied in court, that he is transporting the marijuana leaves to Olongapo City
cannot be relied upon. Even assuming it to be true, the extrajudicial confession
cannot be admitted because it does not appear in the records that the accused,
during custodial investigation, was apprised of his rights to remain silent and to
counsel and to be informed of such rights. In People v. Duero, 104 SCRA 379
[1981], the Court pronounced that "inasmuch as the prosecution failed to prove
that before Duero made his alleged oral confession he was informed of his rights
to remain silent and to have counsel and because there is no proof that he
knowingly and intelligently waived those rights, his confession is inadmissible in
evidence. This ruling was reiterated in People v. Tolentino, 145 SCRA 597
[1986], where the Court added that: "In effect, the Court not only abrogated the
rule on presumption of regularity of official acts relative to admissibility of
statements taken during in-custody interrogation but likewise dispelled any doubt
as to the full adoption of the Miranda doctrine in this jurisdiction It is now
incumbent upon the prosecution to prove during a trial that prior to questioning,
the confessant was warned of his constitutionally protected rights."
4. ID.; ID.; DANGEROUS DRUG ACT (R.A. 6425); PROPER
AUTHENTICATION OF MARIJUANA LEAVES SEIZED; SUFFICIENTLY
COMPLIED IN CASE AT BAR. Accused-appellant likewise asserts that the
package of marijuana leaves supposedly seized from him was never authenticated
and therefore should not have been admitted as evidence. He capitalizes on the
fact that the marijuana package brought by Patrolman Roberto Quevedo to the PC
Crime Laboratory for examination did not contain a tag bearing the name of the
accused. We rule, however, that since Patrolman Quevedo testified that he gave
the marijuana package together with a letter-request for examination, and the
forensic chemist Marilene Salangad likewise testified that she received the
marijuana together with the letter-request and said letter-request bore the name of
the accused, then the requirements of proper authentication of evidence were
sufficiently complied with. The marijuana package examined by the forensic
chemist was satisfactorily identified as the one seized from accused. Even
assuming arguendo that the marijuana sent to the PC Crime Laboratory was not
properly authenticated, still, we cannot discount the separate field test conducted
by witness Roberto Quevedo which yielded positive results for marijuana.
5. ID.; ID.; ID.; NON-PRESENTATION OF INFORMER NOT FATAL TO
PROSECUTION'S CASE. Lastly, the appellant claims that the evidence upon
which he was convicted was insufficient and doubtful and that the prosecution
failed to prove his guilt. In attacking the sufficiency of evidence, the appellant
avers that the informer should have been presented before the lower court. We
discard this argument as a futile attempt to revive an already settled issue. This
Court has ruled in several cases that non-presentation of the informer, where his
testimony would be merely corroborative or cumulative, is not fatal to the
prosecution's case. (People v. Asio, G.R. No. 84960, September 1, 1989; People v.
Viola, G.R. No. 64262, March 16, 1989; People v. Capulong, 160 SCRA 533
[1988]; People v. Cerelegia, 147 SCRA 538).
6. ID.; ID.; ID.; ACTUAL POSSESSION OF MARIJUANA LEAVES; PROVED
BEYOND REASONABLE DOUBT. The trial judge likewise found the
marijuana to weigh one kilo, more or less, and from this finding extracted a clear
intent to transport the marijuana leaves. It may be pointed out, however, that
although the information stated the weight to be approximately one kilo, the
forensic chemist who examined the marijuana leaves testified that the marijuana
weighed only 600 grams. Such amount is not a considerable quantity as to
conclusively confer upon the accused an intent to transport the marijuana leaves.
Nor can it be said that the intent to transport is clearly established from the fact
that the accused was arrested at San Fernando, Pampanga, a place which is not his
residence. Conviction of a crime with an extremely severe penalty must be based
on evidence which is clearer and more convincing than the inferences in this case.
What was therefore proved beyond reasonable doubt is not his intent to transport
the marijuana leaves but his actual possession.
DECISION
GUTIERREZ, JR., J p:
This is an appeal from the decision of the Regional Trial Court, Branch 41, Third
Judicial Region at San Fernando, Pampanga, Branch 41, finding appellant Medel
Tangliben y Bernardino guilty beyond reasonable doubt of violating Section 4,
158
Article II of Republic Act 6425 (Dangerous Drugs Act of 1972 as amended) and
sentencing him to life imprisonment, to pay a fine of P20,000 and to pay the costs.
The information filed against the appellant alleged:
"That on or about the 2nd day of March, 1982, in the
municipality of San Fernando, Province of Pampanga,
Philippines, and within the jurisdiction of this Honorable
Court, the above-named accused MEDEL TANGLIBEN y
BERNARDINO, knowing fully well that Marijuana is a
prohibited drug, did then and there willfully, unlawfully and
feloniously have in his possession, control and custody one
(1) bag of dried marijuana leaves with an approximate weight
of one (1) kilo and to transport (sic) the same to Olongapo
City, without authority of law to do so." (At p. 6, Rollo)
The prosecution's evidence upon which the finding of guilt beyond reasonable
doubt was based is narrated by the trial court as follows:
"It appears from the evidence presented by the prosecution
that in the late evening of March 2, 1982, Patrolmen Silverio
Quevedo and Romeo L. Punzalan of the San Fernando Police
Station, together with Barangay Tanod Macario Sacdalan,
were conducting surveillance mission at the Victory Liner
Terminal compound located at Barangay San Nicolas, San
Fernando, Pampanga; that the surveillance mission was aimed
not only against persons who may commit misdemeanors at
the said place but also on persons who may be engaging in the
traffic of dangerous drugs based on informations supplied by
informers; that it was around 9:30 in the evening that said
Patrolmen noticed a person carrying a red traveling bag
(Exhibit G) who was acting suspiciously and they confronted
him; that the person was requested by Patrolmen Quevedo
and Punzalan to open the red traveling bag but the person
refused, only to accede later on when the patrolmen identified
themselves; that found inside the bag were marijuana leaves
(Exhibit B) wrapped in a plastic wrapper and weighing one
kilo, more or less; that the person was asked of his name and
the reason why he was at the said place and he gave his name
as Medel Tangliben and explained that he was waiting for a
ride to Olongapo City to deliver the marijuana leaves; that the
accused was taken to the police headquarters at San Fernando,
Pampanga, for further investigation; and that Pat. Silverio
Quevedo submitted to his Station Commander his
Investigator's Report (Exhibit F).
It appears also from the prosecution's evidence that in the
following morning or on March 3, 1982, Pat. Silverio
Quevedo asked his co-policeman Pat. Roberto Quevedo, who
happens to be his brother and who has had special training on
narcotics, to conduct a field test on a little portion of the
marijuana leaves and to have the remaining portion examined
by the PCCL at Camp Olivas, San Fernando, Pampanga; that
Pat. Roberto Quevedo conducted a field test (Exhibit H) on
the marijuana leaves and found positive result for marijuana
(Exhibit E); that the remaining bigger quantity of the
marijuana leaves were taken to the PCCL at Camp Olivas by
Pat. Roberto Quevedo that same day of March 3, 1982
(Exhibit A and A-1) and when examined, the same were also
found to be marijuana (Exhibit C and C-1)." (At pp. 910,
Rollo)
Only the accused testified in his defense. His testimony is narrated by the trial
court as follows:
"The accused declared that he got married on October 25,
1981 and his wife begot a child on June 10, 1982; that he was
formerly employed in the poultry farm of his uncle Alejandro
Caluma in Antipolo, Rizal; that he is engaged in the business
of selling poultry medicine and feeds, including chicks, and
used to conduct his business at Taytay, Rizal; that he goes to
Subic at times in connection with his business and whenever
he is in Subic, he used to buy C-rations from one Nena Ballon
and dispose the same in Manila; that he never left his
residence at Antipolo, Rizal, on March 2, 1982; that on March
3, 1982, he went to Subic to collect a balance of P100.00 from
a customer thereat and to buy C-rations; that he was able to
meet Nena Ballon at 6:00 o'clock in the evening and he stayed
in Nena's house up to 8:00 o'clock because he had a drinking
spree with Nena's son; that he tried to catch the 8:00 o'clock
trip to Manila from Olongapo City but he failed and was able
to take the bus only by 9:00 o'clock that evening; that it was a
159
 Victory Liner Bus that he rode and because he was tipsy, he the Clerk of Court, required the new counsel to file her appellant's brief. The latter
did not notice that the bus was only bound for San Fernando complied and, in her brief, raised the following assignment of errors:
Pampanga; that upon alighting at the Victory Liner
Compound at San Fernando, Pampanga he crossed the street I
to wait for a bus going to Manila; that while thus waiting for a
bus, a man whom he came to know later as Pat. Punzalan, "THE LOWER COURT ERRED IN ADMITTING AS
approached him and asked him if he has any residence EVIDENCE THE PACKAGE OF MARIJUANA
certificate; that when he took out his wallet, Pat. Punzalan got ALLEGEDLY SEIZED FROM DEFENDANT-
the wallet and took all the money inside the wallet amounting APPELLANT AS IT WAS A PRODUCT OF AN
to P545.00; that Pat. Punzalan told him that he'll be taken to UNLAWFUL SEARCH WITHOUT A WARRANT.
the municipal building for verification as he may be an NPA II
member; that at the municipal building, he saw a policeman,
THE LOWER COURT ERRED IN ADMITTING AS
identified by him later as Pat. Silverio Quevedo, sleeping but
EVIDENCE THE ALLEGED PACKAGE OF
was awakened when he arrived; that Pat. Quevedo took him
MARIJUANA LEAVES AS THE LEAVES
upstairs and told him to take out everything from his pocket
SUPPOSEDLY SEIZED FROM ACCUSED WHEN
saying that the prisoners inside the jail may get the same from
IT WAS NEVER AUTHENTICATED.
him; that inside his pocket was a fifty-peso bill and Pat.
Quevedo took the same, telling him that it shall be returned to III
him but that it was never returned to him; that he was THE LOWER COURT ERRED IN NOT RULING
thereafter placed under detention and somebody told him that THAT THE PROSECUTION FAILED TO PROVE
he is being charged with possession of marijuana and if he THE GUILT OF DEFENDANT-APPELLANT." (At
would like to be bailed out, somebody is willing to help him; pp. 92-93, Rollo)
and, that when he was visited by his wife, he told his wife that
Patrolman Silverio Quevedo took away all his money but he
told his wife not to complain anymore as it would be useless." It is contended that the marijuana allegedly seized from the accused was a product
(Rollo, pp. 10-11) of an unlawful search without a warrant and is therefore inadmissible in evidence.

Appellant, through counsel de oficio Atty. Enrique Chan, raised the lone This contention is devoid of merit.
assignment of error in his appeal:
One of the exceptions to the general rule requiring a search warrant is a search
"THE COURT A QUO ERRED IN CONVICTING THE incident to a lawful arrest. Thus, Section 12 of Rule 126 of the 1985 Rules on
ACCUSED-APPELLANT AND FINDING HIM GUILTY Criminal Procedure provides:
OF THE CRIME CHARGED ON INSUFFICIENT AND
DOUBTFUL EVIDENCE." (At p. 48, Rollo) "Section 12. Search incident to a lawful arrest. A person
lawfully arrested may be searched for dangerous weapons or
The Solicitor-General likewise filed his brief, basically reiterating the lower anything which may be used as proof of the commission of an
court's findings. offense, without a search warrant."

However, before this Court had the chance to act on appeal, counsel de oficio Meanwhile, Rule 113, Sec. 5(a) provides:
Atty. Enrique Chan died. Thereafter, this court appointed a new counsel de oficio,
Atty. Katz Tierra, and pursuant thereto, the Deputy Clerk of Court, in behalf of ". . . A peace officer or a private person may, without a
warrant, arrest a person:

160
 (a) When, in his presence, the person to be arrested has
committed, is actually committing, or is attempting to commit
an offense."
Accused was caught in flagrante, since he was carrying marijuana at the time of
his arrest. This case therefore falls squarely within the exception. The warrantless
search was incident to a lawful arrest and is consequently valid.
In the case of People v. Claudio, 160 SCRA 646, [1988] this Court, confronted
with the same issue, held that:
"Appellant Claudio was caught transporting prohibited drugs.
Pat. Daniel did not need a warrant to arrest Claudio as the
latter was caught in flagrante delicto. The warrantless search
being an incident to a lawful arrest is in itself lawful.
(Nolasco v Pano, 147 SCRA 509). Therefore, there was no
infirmity in the seizure of the 1.1 kilos of marijuana."
We are not unmindful of the decision of this Court in People v. Aminnudin, 163
SCRA 402 [1988]. In that case the PC officers had earlier received a tip from an
informer that accused-appellant was on board a vessel bound for Iloilo City and
was carrying marijuana. Acting on this tip, they waited for him one evening,
approached him as he descended from the gangplank, detained him and inspected
the bag he was carrying. Said bag contained marijuana leaves. The Court held that
the marijuana could not be admitted in evidence since it was seized illegally.
The records show, however, that there were certain facts, not existing in the case
before us, which led the Court to declare the seizure as invalid. As stated therein:
prLL
"The present case presented no such urgency. From the
conflicting declarations of the PC witnesses, it is clear that
they had at least two days within which they could have
obtained a warrant of arrest and search Aminnudin who was
coming to Iloilo on the M/V Wilcon 9. His name was known.
The vehicle was identified. The date of its arrival was certain.
And from the information they had received, they could have
persuaded a judge that there was probable cause, indeed, to
justify the issuance of a warrant. Yet they did nothing. No
effort was made to comply with the law. The Bill of Rights
was ignored altogether because the PC lieutenant who was the
head of the arresting team, had determined on his own
authority that a 'search warrant was not necessary.' "
In contrast, the case before us presented urgency. Although the trial court's
decision did not mention it, the transcript of stenographic notes reveals that there
was an informer who pointed to the accused-appellant as carrying marijuana.
(TSN, pp. 52-53) Faced with such on-the-spot information, the police officers had
to act quickly. There was not enough time to secure a search warrant. We cannot
therefore apply the ruling in Aminnudin to the case at bar. To require search
warrants during on-the-spot apprehensions of drug pushers, illegal possessors of
firearms, jueteng collectors, smugglers of contraband goods, robbers, etc. would
make it extremely difficult, if not impossible to contain the crimes with which
these persons are associated.
Accused-appellant likewise asserts that the package of marijuana leaves
supposedly seized from him was never authenticated and therefore should not
have been admitted as evidence. He capitalizes on the fact that the marijuana
package brought by Patrolman Roberto Quevedo to the PC Crime Laboratory for
examination did not contain a tag bearing the name of the accused. We rule,
however, that since Patrolman Quevedo testified that he gave the marijuana
package together with a letter-request for examination, and the forensic chemist
Marilene Salangad likewise testified that she received the marijuana together with
the letter-request and said letter-request bore the name of the accused, then the
requirements of proper authentication of evidence were sufficiently complied
with. The marijuana package examined by the forensic chemist was satisfactorily
identified as the one seized from accused.
Even assuming arguendo that the marijuana sent to the PC Crime Laboratory was
not properly authenticated, still, we cannot discount the separate field test
conducted by witness Roberto Quevedo which yielded positive results for
marijuana.
Lastly, the appellant claims that the evidence upon which he was convicted was
insufficient and doubtful and that the prosecution failed to prove his guilt.
In attacking the sufficiency of evidence, the appellant avers that the informer
should have been presented before the lower court. We discard this argument as a
futile attempt to revive an already settled issue. This Court has ruled in several
cases that non-presentation of the informer, where his testimony would be merely
corroborative or cumulative, is not fatal to the prosecution's case. (People v. Asio,
G.R. No. 84960, September 1, 1989; People v. Viola, G.R. No. 64262, March 16,
161
1989; People v. Capulong, 160 SCRA 533 [1988]; People v. Cerelegia, 147
SCRA 538).
As to doubtfulness of evidence, well-settled is the rule that findings of the trial
court on the issue of credibility of witnesses and their testimonies are entitled to
great respect and accorded the highest consideration by the appellate court. Since
credibility is a matter that is peculiarly within the province of the trial judge, who
had first hand opportunity to watch and observe the demeanor and behavior of
witnesses both for the prosecution and the defense at the time of their testimony
(People v. Tejada, G.R. No. 81520, February 21, 1989; People v. Turla, 167
SCRA 278), we find no reason to disturb the following findings: LLjur
"The testimony of prosecution witnesses Patrolmen Silverio
Quevedo and Romeo Punzalan are positive and sufficiently
clear to show the commission by the accused of the offense
herein charged. These prosecution witnesses have no motive
to fabricate the facts and to foist a very serious offense against
the accused. The knowledge on what these witnesses testified
to were (sic) acquired by them in the official performance of
their duties and their (sic) being no showing that they are
prejudiced against the accused, their testimonies deserve full
credit.
The testimonies of the afore-mentioned patrolmen that what
they found in the possession of the accused were marijuana
leaves were corroborated by the examination findings
conducted by Pat. Roberto Quevedo (Exhibit H) and by
Forensic Chemist Marlene Salangad of the PCCL, with
station at Camp Olivas, San Fernando, Pampanga (Exhibits C
and C-1). (Rollo, p. 11)
"Moreover, if there is truth in the testimony of the accused to
the effect that Pat. Punzalan got all the money from his wallet
when he was accosted at the Victory Liner Terminal and was
told just to keep quiet, otherwise he will be 'salvaged', why
will Pat. Punzalan still bring the accused to the Municipal
Building for interrogation and/or verification? Would not Pat.
Punzalan be exposing his identity to the accused? This is
unnatural. And this is also true on the testimony of the
accused that Pat. Silverio Quevedo got his fifty-peso bill and
never returned the same to him. If the two policemen really
got any money from the accused and that the marijuana leaves
do not belong to the accused, why will the two policemen still
produce in Court as evidence that expensive-looking traveling
red bag (Exhibit G) taken from the accused and which
contained the marijuana leaves in question if the instant case
is a mere fabrication?
As already stated, all the evidence, oral and documentary,
presented by the prosecution in this case were all based on
personal knowledge acquired by the prosecution witnesses in
the regular performance of their official duties and there is
nothing in their testimonies to show that they are bias (sic) or
that they have any prejudice against the herein accused.
Between the testimonies of these prosecution witnesses and
that of the uncorroborated and self-serving testimony of the
accused, the former should prevail." (Rollo, p. 13)
Likewise, the appellant chose to limit his defense to his own testimony. He could
have availed himself through compulsory court processes of several witnesses to
buttress his defense. Since not one other witness was presented nor was any
justification for the non-appearance given, the inadequacy of his lone and
uncorroborated testimony remains. It cannot prevail vis-a-vis the positive
testimonies given by the prosecution witnesses.
Moreover, the appellant's having jumped bail is akin to flight which, as correctly
observed by the lower court, is an added circumstance tending to establish his
guilt. LibLex
We take exception, however, to the trial court's finding that:
"The dried marijuana leaves found in the possession of the
accused weighs one (1) kilo, more or less. The intent to
transport the same is clear from the testimony of Pat. Silverio
Quevedo who declared, among other things, that when he
confronted the accused that night, the latter told him that he
(accused) is bringing the marijuana leaves to Olongapo City.
Moreover, considering the quantity of the marijuana leaves
found in the possession of the accused and the place he was
arrested which is at San Fernando, Pampanga, a place where
the accused is not residing, it can be said that the intent to
162
 transport the marijuana leaves has been clearly established." The offense committed by the appellant is possession of marijuana under Section
(Rollo, pp. 13-14) 8 of REPUBLIC ACT NO. 6425 (Dangerous Drugs Act of 1972 as amended).

The alleged extrajudicial confession of the accused which, on the other hand, he WHEREFORE, the judgment of conviction by the trial court is hereby
categorically denied in court, that he is transporting the marijuana leaves to AFFIRMED but MODIFIED. The appellant is sentenced to suffer the penalty of
Olongapo City cannot be relied upon. Even assuming it to be true, the imprisonment ranging from six (6) years and one (1) day to twelve (12) years and
extrajudicial confession cannot be admitted because it does not appear in the fine of Six Thousand (P6,000.00) Pesos.
records that the accused, during custodial investigation, was apprised of his rights
to remain silent and to counsel and to be informed of such rights. In People v. SO ORDERED.
Duero, 104 SCRA 379 [1981], the Court pronounced that "inasmuch as the
prosecution failed to prove that before Duero made his alleged oral confession he
Fernan, C.J., Feliciano, Bidin and Cortes, JJ., concur.
was informed of his rights to remain silent and to have counsel and because there
is no proof that he knowingly and intelligently waived those rights, his confession
is inadmissible in evidence. This ruling was reiterated in People v. Tolentino, 145 ||| (People v. Tangliben y Bernardino, G.R. No. L-63630, April 06, 1990)
SCRA 597 [1986], where the Court added that:

"In effect, the Court not only abrogated the rule on

presumption of regularity of official acts relative to
admissibility of statements taken during in-custody
interrogation but likewise dispelled any doubt as to the full
adoption of the Miranda doctrine in this jurisdiction It is now
incumbent upon the prosecution to prove during a trial that
prior to questioning, the confessant was warned of his
constitutionally protected rights."

The trial judge likewise found the marijuana to weigh one kilo, more or less, and
from this finding extracted a clear intent to transport the marijuana leaves. It may
be pointed out, however, that although the information stated the weight to be
approximately one kilo, the forensic chemist who examined the marijuana leaves
testified that the marijuana weighed only 600 grams. Such amount is not a
considerable quantity as to conclusively confer upon the accused an intent to
transport the marijuana leaves.

Nor can it be said that the intent to transport is clearly established from the fact
that the accused was arrested at San Fernando, Pampanga, a place which is not his
residence. Conviction of a crime with an extremely severe penalty must be based
on evidence which is clearer and more convincing than the inferences in this case.
LexLib

What was therefore proved beyond reasonable doubt is not his intent to transport
the marijuana leaves but his actual possession.

163
FIRST DIVISION
[G.R. No. 74869. July 6, 1988.]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.
IDEL AMINNUDIN y AHNI, defendant-appellant.
The Solicitor General, for plaintiff-appellee.
Herminio T. Llariza counsel de-officio, for defendant-appellant.
SYLLABUS
1. CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHTS AGAINST
UNREASONABLE SEARCHES AND SEIZURES; WARRANTLESS ARREST
AND SEIZURE BASED ON AN INFORMER'S TIP, AT A TIME WHEN
ACCUSED WAS NOT COMMITTING A CRIME, ILLEGAL; EVIDENCE
OBTAINED, INADMISSIBLE. Where it is not disputed that the PC officers
had no warrant when they arrested Aminnudin while he was descending the
gangplank of the M/V Wilcon 9 and seized the bag he was carrying, and that their
only justification was the tip they had earlier received from a reliable and regular
informer who reported to them that Aminnudin was arriving in Iloilo by boat with
marijuana, the search was not an incident of a lawful arrest because there was no
warrant of arrest and warrantless arrest did not come under the exceptions allowed
by the Rules of Court. Hence, the warrantless search was also illegal and the
evidence obtained was inadmissible.
2. ID.; ID.; ID.; ID.; NO URGENCY COULD BE INVOKED IN PRESENT
CASE TO DISPENSE WITH OBTENTION OF ARREST AND SEARCH
WARRANT. The present case presented no such urgency. From the conflicting
declarations of the PC witnesses, it is clear that they had at least two days within
which they could have obtained a warrant to arrest and search Aminnudin who
was coming to Iloilo on the M/V Wilcon 9. His name was known. The vehicle
was identified. The date of its arrival was certain. And from the information they
had received, they could have persuaded a judge that there was probable cause,
indeed, to justify the issuance of a warrant. Yet they did nothing. No effort was
made to comply with the law. The Bill of Rights was ignored altogether because
the PC lieutenant who was the head of the arresting team, had determined on his
own authority that a "search warrant was not necessary."
3. ID.; ID.; ID.; ID.; ACCUSED IN CASE AT BAR WAS NOT COMMITTING
A CRIME WHEN HE WAS ARRESTED. In the case at bar, the accused-
appellant was not, at the moment of his arrest, committing a crime nor was it
shown that he was about to do so or that he had just done so. What he was doing
was descending the gangplank of the M/V Wilcon 9 and there was no outward
indication that called for his arrest. To all appearances, he was like any of the
other passengers innocently disembarking from the vessel. It was only when the
informer pointed to him as the carrier of the marijuana that he suddenly became
suspect and so subject to apprehension. It was the furtive finger that triggered his
arrest. The identification by the informer was the probable cause as determined by
the officers (and not a judge) that authorized them to pounce upon Aminnudin and
immediately arrest him.
AQUINO, J., Dissenting:
CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHT AGAINST
UNREASONABLE SEARCHES AND SEIZURES; ARREST AT TIME OF
COMMISSION OF CRIME IS LAWFUL; SEARCH LIKEWISE LAWFUL. I
hold that the accused was caught in flagrante, for he was carrying marijuana
leaves in his bag at the moment of his arrest. He was not "innocently
disembarking from the vessel." The unauthorized transportation of marijuana
(Indian hemp), which is a prohibited drug, is a crime. (Sec. 4, Rep. Act No. 6425).
Since he was committing a crime, his arrest could be lawfully effected without a
warrant (Sec. 6-a, Rule 113, Rules of Court), and the search of his bag (which
yielded the marijuana leaves) without a search warrant was also lawful (Sec. 12,
Rule 126, Rules of Court).
DECISION
CRUZ, J p:
The accused-appellant claimed his business was selling watches but he was
nonetheless arrested, tried and found guilty of illegally transporting marijuana.
The trial court, disbelieving him, held it was high time to put him away and
sentenced him to life imprisonment plus a fine of P20,000.00. 1
Idel Aminnudin was arrested on June 25, 1984, shortly after disembarking from
the M/V Wilcon 9 at about 8:30 in the evening, in Iloilo City. The PC officers
who were in fact waiting for him simply accosted him, inspected his bag and
164
finding what looked liked marijuana leaves took him to their headquarters for
investigation. The two bundles of suspect articles were confiscated from him and
later taken to the NBI laboratory for examination. When they were verified as
marijuana leaves, an information for violation of the Dangerous Drugs Act was
filed against him. 2 Later, the information was amended to include Farida Ali y
Hassen, who had also been arrested with him that same evening and likewise
investigated. 3 Both were arraigned and pleaded not guilty. 4 Subsequently, the
fiscal filed a motion to dismiss the charge against Ali on the basis of a sworn
statement of the arresting officers absolving her after a "thorough investigation." 5
The motion was granted, and trial proceeded only against the accused-appellant,
who was eventually convicted. 6
According to the prosecution, the PC officers had earlier received a tip from one
of their informers that the accused-appellant was on board a vessel bound for
Iloilo City and was carrying marijuana. 7 He was identified by name. 8 Acting on
this tip, they waited for him in the evening of June 25, 1984, and approached him
as he descended from the gangplank after the informer had pointed to him. 9 They
detained him and inspected the bag he was carrying. It was found to contain three
kilos of what were later analyzed as marijuana leaves by an NBI forensic
examiner, 10 who testified that she conducted microscopic, chemical and
chromatographic tests on them. On the basis of this finding, the corresponding
charge was then filed against Aminnudin.
In his defense, Aminnudin disclaimed the marijuana, averring that all he had in his
bag was his clothing consisting of a jacket, two shirts and two pairs of pants. 11
He alleged that he was arbitrarily arrested and immediately handcuffed. His bag
was confiscated without a search warrant. At the PC headquarters, he was
manhandled to force him to admit he was carrying the marijuana, the investigator
hitting him with a piece of wood in the chest and arms even as he parried the
blows while he was still handcuffed. 12 He insisted he did not even know what
marijuana looked like and that his business was selling watches and sometimes
cigarettes. 13 He also argued that the marijuana he was alleged to have been
carrying was not properly identified and could have been any of several bundles
kept in the stock room of the PC headquarters. 14
The trial court was unconvinced, noting from its own examination of the accused
that he claimed to have come to Iloilo City to sell watches but carried only two
watches at the time, traveling from Jolo for that purpose and spending P107.00 for
fare, not to mention his other expenses. 15 Aminnudin testified that he kept the
two watches in a secret pocket below his belt but, strangely, they were not
discovered when he was bodily searched by the arresting officers nor were they
damaged as a result of his manhandling. 1 6 He also said he sold one of the
watches for P400.00 and gave away the other, although the watches belonged not
to him but to his cousin, 17 to a friend whose full name he said did not even
know. 18 The trial court also rejected his allegations of maltreatment, observing
that he had not sufficiently proved the injuries sustained by him. 19
There is no justification to reverse these factual findings, considering that it was
the trial judge who had immediate access to the testimony of the witnesses and
had the opportunity to weigh their credibility on the stand. Nuances of tone or
voice, meaningful pauses and hesitation, flush of face and dart of eyes, which may
reveal the truth or expose the lie, are not described in the impersonal record. But
the trial judge sees all of this, discovering for himself the truant fact amidst the
falsities.
The only exception we may make in this case is the trial court's conclusion that
the accused-appellant was not really beaten up because he did not complain about
it later nor did he submit to a medical examination. That is hardly fair or realistic.
It is possible Aminnudin never had that opportunity as he was at that time under
detention by the PC authorities and in fact has never been set free since he was
arrested in 1984 and up to the present. No bail has been allowed for his release.
There is one point that deserves closer examination, however, and it is
Aminnudin's claim that he was arrested and searched without warrant, making the
marijuana allegedly found in his possession inadmissible in evidence against him
under the Bill of Rights. The decision did not even discuss this point. For his part,
the Solicitor General dismissed this after an all-too-short argument that the arrest
of Aminnudin was valid because it came under Rule 113, Section 6(b) of the
Rules of Court on warrantless arrests. This made the search also valid as
incidental to a lawful arrest.
It is not disputed, and in fact it is admitted by the PC officers who testified for the
prosecution, that they had no warrant when they arrested Aminnudin and seized
the bag he was carrying. Their only justification was the tip they had earlier
received from a reliable and regular informer who reported to them that
Aminnudin was arriving in Iloilo by boat with marijuana. Their testimony varies
as to the time they received the tip, one saying it was two days before the arrest,
20 another two weeks 21 and a third "weeks before June 25." 22 On this matter,
we may prefer the declaration of the chief of the arresting team, Lt. Cipriano
Querol, Jr., who testified as follow:
"Q You mentioned an intelligence report, you mean with
respect to the coming of Idel Aminnudin on June 25,
1984?
165
"A Yes, sir.
"Q When did you receive this intelligence report?
"A Two days before June 25, 1984 and it was supported by
reliable sources.
"Q Were you informed of the coming of the Wilcon 9 and the
possible trafficking of marijuana leaves on that date?
"A Yes, sir, two days before June 25, 1984 when we received
this information from that particular informer, prior
to June 25, 1984 we have already reports of the
particular operation which was being participated by
Idel Aminnudin.
"Q You said you received an intelligence report two days
before June 25, 1984 with respect to the coming of
Wilcon 9?
"A Yes, sir.
"Q Did you receive any other report aside from this
intelligence report?
"A Well, I have received also other reports but not pertaining
to the coming of Wilcon 9. For instance, report of
illegal gambling operation.
"COURT:
"Q Previous to that particular information which you said two
days before June 25, 1984, did you also receive any
report regarding the activities of Idel Aminnudin?
"A Previous to June 25, 1984 we received reports on the
activities of Idel Aminnudin.
"Q What were those activities?
"A Purely marijuana trafficking.
"Q From whom did you get that information?
"A It came to my hand which was written in a required sheet
of information, maybe for security reason and we
cannot identify the person.
"Q But you received it from your regular informer?
"A Yes, sir.
"ATTY. LLARIZA:
"Q Previous to June 25, 1984, you were more or less sure that
Idel Aminnudin is coming with drugs?
"A Marijuana, sir.
"Q And this information respecting Idel Aminnudin's coming
to Iloilo with marijuana was received by you many
days before you received the intelligence report in
writing?
"A Not a report of the particular coming of Aminnudin but his
activities.
"Q You only knew that he was coming on June 25, 1984 two
days before?
"A Yes, sir.
"Q You mean that before June 23, 1984 you did not know that
Aminnudin was coming?
"A Before June 23, 1984, I, in my capacity, did not know that
he was coming but on June 23, 1984 that was the
time when I received the information that he was
166
 coming. Regarding the reports on his activities, we
have reports that he has already consummated the act
of selling and shipping marijuana stuff.
"COURT:
"Q And as a result of that report, you put him under
surveillance?
"A Yes, sir.
"Q In the intelligence report, only the name of Idel
Aminnudin was mentioned?
"A Yes, sir.
"Q Are you sure of that?
"A On the 23rd he will be coming with the woman.
"Q So that even before you received the official report on
June 23, 1984, you had already gathered information
to the effect that Idel Aminnudin was coming to
Iloilo on June 25, 1984?
"A Only on the 23rd of June.
"Q You did not try to secure a search warrant for the seizure
or search of the subject mentioned in your
intelligence report?
"A No, more.
"Q Why not?
"A Because we were very very sure that our operation will
yield positive result.
"Q Is that your procedure that whenever it will yield positive
result you do not need a search warrant anymore?
"A Search warrant is not necessary." 23
That last answer is a cavalier pronouncement, especially as it comes from a mere
lieutenant of the PC. The Supreme Court cannot countenance such a statement.
This is still a government of laws and not of men.
The mandate of the Bill of Rights is clear:
"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."
In the case at bar, there was no warrant of arrest or search warrant issued by a
judge after personal determination by him of the existence of probable cause.
Contrary to the averments of the government, the accused-appellant was not
caught in flagrante nor was a crime about to be committed or had just been
committed to justify the warrantless arrest allowed under Rule 113 of the Rules of
Court. Even expediency could not be invoked to dispense with the obtention of
the warrant as in the case of Roldan v. Arca, 24 for example. Here it was held that
vessels and aircraft are subject to warrantless searches and seizures for violation
of the customs law because these vehicles may be quickly moved out of the
locality or jurisdiction before the warrant can be secured.
The present case presented no such urgency. From the conflicting declarations of
the PC witnesses, it is clear that they had at least two days within which they
could have obtained a warrant to arrest and search Aminnudin who was coming to
Iloilo on the M/V Wilcon 9. His name was known. The vehicle was identified.
The date of its arrival was certain. And from the information they had received,
they could have persuaded a judge that there was probable cause, indeed, to justify
the issuance of a warrant. Yet they did nothing. No effort was made to comply
with the law. The Bill of Rights was ignored altogether because the PC lieutenant
who was the head of the arresting team, had determined on his own authority that
"search warrant was not necessary."
In the many cases where this Court has sustained the warrantless arrest of
violators of the Dangerous Drugs Act, it has always been shown that they were
167
caught red-handed, as result of what are popularly called "buy-bust" operations of
the narcotics agents. 25 Rule 113 was clearly applicable because at the precise
time of arrest the accused was in the act of selling the prohibited drug.
In the case at bar, the accused-appellant was not, at the moment of his arrest,
committing a crime nor was it shown that he was about to do so or that he had just
done so. What he was doing was descending the gangplank of the M/V Wilcon 9
and there was no outward indication that called for his arrest. To all appearances,
he was like any of the other passengers innocently disembarking from the vessel.
It was only when the informer pointed to him as the carrier of the marijuana that
he suddenly became suspect and so subject to apprehension. It was the furtive
finger that triggered his arrest. The identification by the informer was the probable
cause as determined by the officers (and not a judge) that authorized them to
pounce upon Aminnudin and immediately arrest him.
Now that we have succeeded in restoring democracy in our country after fourteen
years of the despised dictatorship, when any one could be picked up at will,
detained without charges and punished without trial, we will have only ourselves
to blame if that kind of arbitrariness is allowed to return, to once more flaunt its
disdain of the Constitution and the individual liberties its Bill of Rights
guarantees.
While this is not to say that the accused-appellant is innocent, for indeed his very
own words suggest that he is lying, that fact alone does not justify a finding that
he is guilty. The constitutional presumption is that he is innocent, and he will be
so declared even if his defense is weak as long as the prosecution is not strong
enough to convict him.
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
rights 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 criminal
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.
We find that with the exclusion of the illegally seized marijuana as evidence
against the accused-appellant, his guilt has not been proved beyond reasonable
doubt and he must therefore be discharged on the presumption that he is innocent.
ACCORDINGLY, the decision of the trial court is REVERSED and the accused-
appellant is ACQUITTED. It is so ordered.
Narvasa, Gancayco and Medialdea JJ. concur.
||| (People v. Aminnudin y Ahni, G.R. No. 74869, July 06, 1988)

Without the evidence of the marijuana allegedly seized from Aminnudin, the case
of the prosecution must fall. That evidence cannot be admitted, and should never
have been considered by the trial court for the simple fact is that the marijuana
was seized illegally. It is the fruit of the poisonous tree, to use Justice Holmes'
felicitous phrase. The search was not an incident of a lawful arrest because there
was no warrant of arrest and the warrantless arrest did not come under the
exceptions allowed by the Rules of Court. Hence, the warrantless search was also
illegal and the evidence obtained thereby was inadmissible.

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

168
FIRST DIVISION
[G.R. No. 79965. May 25, 1994.]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.
PABLO RODRIGUEZ y COTARIAN, accused-appellant.
SYLLABUS
1. REMEDIAL LAW; EVIDENCE; GUILT BEYOND REASONABLE DOUBT;
NOT PROVED IN CASE AT BAR. In his brief, the Solicitor General agreed
with appellant's posture that the prosecution failed to establish the act of
unlawfully selling, distributing and delivering marijuana as alleged in the
Information (Brief for Plaintiff-Appellee, p. 7; Rollo, p. 96). But he claimed that
the prosecution's evidence indubitably established that appellant, having been
caught in flagrante delicto in possession of marijuana committed the crime of
illegal possession of marijuana under Section 8, Article II of R.A. No. 6425, as
amended (Brief for Plaintiff-Appellee, p. 9; Rollo, p. 96). We agree with the
Solicitor General's assertion that the prosecution failed to establish that appellant
sold, distributed and delivered marijuana.
2. ID.; ID.; PRESUMPTION THAT EVIDENCE WITHHELD IS FOR
SINISTER MOTIVE. We have held that ". . ., when a party has it in his
possession or power to produce the best evidence of which the case in its nature is
susceptible and withholds it, the fair presumption is that the evidence is withheld
for some sinister motive and that its production would thwart his evil or
fraudulent purpose (Ching Sui Yong v. Intermediate Appellate Court, 191 SCRA
187 [1990]).
3. ID.; ID.; HEARSAY; SWORN STATEMENT OF AFFIANT WHO DID NOT
TESTIFY. The sworn statement executed by Abrera, (Exh. D) pointing to
appellant as the person who gave him a tinfoil of marijuana is inadmissible in
evidence and has no probative value. The failure of the prosecution to present
Abrera in court although he was named as one of the prosecution witnesses
deprived the accused the opportunity to cross-examine his accuser. ". . . [C]ross-
examination is an indispensable instrument of criminal justice to give substance
and meaning to the constitutional right of the accused to confront the witnesses
against him and to show that the presumption of innocence has remained steadfast
and firm (People v. Pido, 200 SCRA 45 [1991]).
4. ID.; CRIMINAL PROCEDURE; SEARCH; OBJECTS SEIZED UNDER AN
UNLAWFUL ARREST, INADMISSIBLE IN EVIDENCE; CASE AT BAR.
Admittedly, Pat. Gonzales searched appellant without a warrant. It is contended
however that the warrantless search was incidental to a lawful arrest. The arrest of
appellant itself was also made without a warrant of arrest. In such a case, the
arrest can be justified only if there was a crime committed in the presence of the
arresting officers. The marijuana supposedly confiscated from appellant is
therefore inadmissible in evidence for having been taken in violation of his
constitutional right against unreasonable searches and seizures.
5. ID.; ID.; ID.; WHEN MAY A PERSON BE SUBJECTED THERETO. The
cardinal rule is that no person may be subjected by the police to a search of his
house, body or personal belonging except by virtue of a search warrant or on the
occasion of a lawful arrest (People v. De la Cruz, 184 SCRA 416 [1990]).
6. ID.; ID.; ID.; EFFECTS OF ILLEGAL SEARCH ON OBJECTS SEIZED.
"If a person is searched without a warrant, or under circumstances other than those
justifying an arrest without warrant in accordance with law, merely on suspicion
that he is engaged in some felonious enterprise, and in order to discover if he has
indeed committed a crime, it is not only the arrest which is illegal but also, the
search on the occasion thereof as BEING 'the fruit of the poisonous tree'" (Guazon
v. De Villa, 181 SCRA 623 [1990]; People v. Aminnudin, 163 SCRA 402 [1988];
U.S. v. Santos, 36 Phil. 853 [1917]; U.S. v. Hachaw, 21 Phil. 514 [1912]). In that
event, any evidence taken, even if confirmatory of the initial suspicion, is
inadmissible "for any purpose in any proceeding" (Nolasco v. Pao, 147 SCRA
509 [1987]; People v. Burgos, 144 SCRA 1 [1986]).
DECISION
QUIASON, J p:
This is an appeal from the decision of the Regional Trial Court, Branch XVIII,
Tabaco, Albay, in Criminal Case No. T-1374, finding appellant guilty beyond
reasonable doubt of violating Section 4, Article II of the Dangerous Drugs Act of
1972 (R.A. No. 6425 as amended by B.P. No. 179). LLpr
I
169
The Information charged appellant as follows:
"That on or about the 21st day of June, 1984, at 3:30 o'clock
(sic) in the afternoon, more or less, at the ground floor of the
Tabaco Bus Terminal, Municipality of Tabaco, Province of
Albay, Philippines and within the jurisdiction of this
Honorable Court, the above-named accused, without being
authorized by law or any government agency, did then and
there willfully, unlawfully, feloniously and with deliberate
intent to violate the law had in his possession and control
dried Marijuana leaves and seeds, sell, deliver and distribute
sticks of Marijuana" (Rollo, p. 13).
On May 7, 1985, appellant assisted by his counsel, pleaded not guilty to the
information.
On July 8, 1986, the trial court rendered its decision, finding appellant guilty
beyond reasonable doubt of delivering, distributing and selling marijuana. The
dispositive portion of the decision reads as follows:
"WHEREFORE, judgment is hereby issued, sentencing the
accused, Pablo Rodriguez y Cotarian, to the penalty of life
imprisonment, to pay a fine of P20,000.00 and with costs"
(Rollo, p. 32).
Hence, this appeal.
II
The facts, as found by the trial court and presented by the Solicitor General, are as
follows:
"On July 21, 1981, at about 3:00 o'clock (sic) in the afternoon,
the Tabaco Police Station received a report from an
unidentified telephone caller that somebody was selling
marijuana inside the Wonder Dog Circus. Forthwith, Pats.
Rogelio Gonzales and Benito Bongalos proceeded to the
Wonder Dog Circus near the public market of Tabaco, to
On the other hand, appellant gave the following version of the incident:
verify the report. Arriving at the place, they spotted appellant
Pablo Rodriguez and Gregorio Abrera acting suspiciously.
Abrera was putting marijuana inside his pocket (tsn., June 11,
1985, pp. 3-4).
Accordingly, Pats. Gonzales and Bongalos approached
appellant and Abrera and, after introducing themselves as
police officers, placed the two under arrest. Pat. Gonzales
found a small pocket containing marijuana (Exhibit "B")
inside the right side pocket of appellant's pants (tsn., June 11,
1985, pp. 4-5). Upon the other hand, Abrera voluntarily
handed over a plastic tea bag containing marijuana (Exhibit
"C") to Pat. Gonzales (tsn., October 15, 1985, pp. 6, 8). llcd
Appellant and Abrera were then brought to the police station
where they, as well as the items confiscated from them, were
turned over to Cpl. Santos Colarina, Chief Investigator of the
Tabaco Police Station (tsn., June 11, 1985, p. 5).
When investigated, Abrera voluntarily admitted having
possessed the marijuana confiscated from him but pointed at
appellant as the one who gave him the marijuana and blamed
appellant for it (Exhibit "D"). Even as appellant heard Abrera
making said statements, appellant kept silent and failed to
react (tsn., October 15, 1988, p. 41).
Lt. Lorlie Arroyo, Forensic Chemist of the PC Crime
Laboratory, Camp Bagong Ibalon, Legaspi City, conducted an
examination on the items seized from the appellant and
Abrera and found them to be positive of marijuana (tsn., May
7, 1985, pp. 11, 28).
Consequently, appellant was charged with violating Section 4,
Article II, of R. A. No. 6425, as amended. Abrera, upon the
other hand, was not similarly charged presumably because he
was a user. Any way, it was allegedly the Station Commander
of the Tabaco Police Station who opted not to press charges
against Abrera (tsn., October 15, 1985, pp. 19-20)" (Brief for
Plaintiff-Appellee, pp. 3-5; Rollo, p. 96).
170
 ". . . . On June 21, 1984 at about 3:30 o'clock in the afternoon,
he and a certain Rogelio "Lilio" Cardano were at the "Wonder
Dog Circus" at the bus terminal of Tabaco, Albay, as they
were selling an amplifier. Suddenly, they were searched by
Patrolman Gonzales and Bongalos, without any warrant, due
to alleged information, that they were selling marijuana (TSN,
May 12, 1986, p. 4). But the policemen did not find any
marijuana. Instead, they found in his bag three (3) fifty-peso
bills (P150.00), the price of the amplifier, which was already
in the possession of the buyer, the owner of the circus (TSN,
id., p. 5). Pat. Gonzales took the amount and returned it to the
operator of the circus (TSN, id., p. 7). Subsequently, the
accused and Abrera were brought to the Police Station, where
the accused was locked-up and mauled inside the prison cell
(TSN., id., p. 5). While in prison, the accused was approached
by Pat. Gonzales who told him that he also had marijuana for
sale at P200.00 which he showed him (TSN, id., p. 6).
However, the accused refused the offer (TSN, id., p. 7). The
amplifier was brought to the police station and returned to the
accused by investigator Colarina (TSN, id., pp. 7-8). The
accused was detained for one-and-a-half months, while
Abrera was not (TSN, id., p. 6)" (Appellant's Brief, pp. 9-10).
prLL
Appellant contends that the trial court erred in convicting him of the offense
charged. He assigns the following errors:
THE TRIAL COURT ERRED IN CONVICTING THE
ACCUSED BASED ON THE CONJECTURAL AND
CONFLICTING TESTIMONIES OF THE PROSECUTION.
THE TRIAL COURT ERRED IN CONVICTING THE
ACCUSED BASED ON THE MARIJUANA SEIZED BY
THE ARRESTING OFFICERS WITHOUT WARRANT.
THE TRIAL COURT ERRED IN CONVICTING THE
ACCUSED BASED ON HIS SILENCE.
THE TRIAL COURT ERRED IN ADMITTING IN
EVIDENCE THE SWORN STATEMENT OF GREGORIO
ABRERA, WHO DID NOT TAKE THE WITNESS STAND,
DESPITE HAVING BEEN LISTED AS ONE OF THE
PROSECUTION WITNESSES.
THE TRIAL COURT ERRED IN CONVICTING THE
ACCUSED BASED ON THE PRESUMPTION THAT
OFFICIAL DUTY HAS BEEN REGULARLY
PERFORMED.
III
In his brief, the Solicitor General agreed with appellant's posture that the
prosecution failed to establish the act of unlawfully selling, distributing and
delivering marijuana as alleged in the Information (Brief for Plaintiff-Appellee, p.
7; Rollo p. 96). But he claimed that the prosecution's evidence indubitably
established that appellant, having been caught in flagrante delicto in possession of
marijuana committed the crime of illegal possession of marijuana under Section 8,
Article II of R. A. No. 6425, as amended (Brief for Plaintiff-Appellee, p. 9; Rollo,
p. 96).
We agree with the Solicitor General's assertion that the prosecution failed to
establish that appellant sold, distributed and delivered marijuana.
The records show that the two prosecution witnesses did not actually see appellant
transact any business dealing with marijuana. On cross examination, Pat.
Gonzales testified as follows:
ATTY. GONZAGA:
"Q: You mentioned of an investigation. There was actually no
selling or transacting of marijuana. Is that right?
A: I did not see them actually transacting. However we saw
them acting suspiciously.
Q: But you did not see Pablo Rodriguez giving any marijuana
to Abrera?
A: I did not. But when we were getting near them (accused),
they started to leave. (TSN, June 11, 1985, p. 10;
emphasis supplied).
Pat. Gonzales, upon further questioning by the trial court, said that:
171
 COURT:
"Q: But you did not see actually (sic) Rodriguez giving the
marijuana to Abrera?
A: No, Your Honor, I did not" (TSN, June 11,1985, p. 10,
emphasis supplied).
Pat. Bongalos also could not say whether appellant was selling, distributing or
delivering marijuana to Abrera when he was placed under arrest.
The person, who is in the best position to testify whether appellant sold marijuana
or not, was Abrera, as he was the person whom appellant allegedly dealt with. We
are placed at a quandary as to why Abrera was not prosecuted together with
appellant nor was he made to testify for the prosecution when he was named as
one of its witnesses. As testified to by the prosecution witnesses, Abrera was not
similarly charged with appellant because Abrera, when investigated, pointed to
appellant as the person who gave him the marijuana. The reliance made by the
police investigator on Abrera's word is simply puzzling.
We have held that ". . ., when a party has it in his possession or power to produce
the best evidence of which the case in its nature is susceptible and withholds it,
the fair presumption is that the evidence is withheld for some sinister motive and
that its production would thwart his evil or fraudulent purpose (Ching Sui Yong v.
Intermediate Appellate Court, 191 SCRA 187 [1990]).
The sworn statement executed by Abrera, (Exh. D) pointing to appellant as the
person who gave him a tinfoil of marijuana is inadmissible in evidence and has no
probative value. The failure of the prosecution to present Abrera in court although
he was named as one of the prosecution witnesses deprived the accused the
opportunity to cross-examine his accuser. ". . . [C]ross-examination is an
indispensable instrument of criminal justice to give substance and meaning to the
constitutional right of the accused to confront the witnesses against him and to
show that the presumption of innocence has remained steadfast and firm" (People
v. Pido, 200 SCRA 45 [1991]).
Having held that appellant is not guilty of the offense charged under Section 4,
Article II of the Dangerous Drugs Act, we shall now dwell on the question
whether appellant is guilty of possession of marijuana under Section 8, Article I of
the same Act. cdrep
After a careful review of the records and transcript of stenographic notes, we find
that appellant should likewise be acquitted of the offense of possession of
marijuana.
Admittedly, Pat. Gonzales searched appellant without a warrant. It is contended
however that the warrantless search was incidental to a lawful arrest. The arrest of
appellant itself was also made without a warrant of arrest. In such a case, the
arrest can be justified only if there was a crime committed in the presence of the
arresting officers.
The arresting officers went to the "Wonder Dog Circus" to verify a telephone call
that a person with a knapsack had marijuana in his possession. Pat. Gonzales
admitted that they arrested appellant because he acted suspiciously.
Part of his testimony is reproduced as follows:
ATTY. GONZAGA:
(CROSS EXAMINATION)
"Q: You said that at the premises of the Wonder Dogs circus,
you saw the accused acting suspiciously. Is that
right?
A: Yes, sir.
Q: But you were actually there?
A: Yes, sir.
Q: And you introduced yourselves as members of the INP?
A: Yes, sir.
Q: After which, you frisked Pablo Rodriguez?
A: Yes, sir.
Q: And in fact, you found inside his pocket this Exhibit "B".
Is that right?
172
 A: Yes, sir.
Q: You did the investigation per instruction from your police
headquarters. Is that right?
A: Yes, sir.
Q: So you acted merely from the information thru the
telephone and the suspicious acting of the accused.
A: Yes, sir.
Pat. Bongalos also admitted that he did not personally know whether appellant
was in possession of the prohibited drug. He testified as follows:
FISCAL VILLAMIN: (Continuing)
"Q: For what was he investigated of?
A: For the possession of marijuana.
Q: Why do you know that he was in possession of marijuana?
A: Because from (sic) the information received thru a
telephone call that a person with a knapsack was in
possession of marijuana" (TSN, October 15, 1985, p.
11; Emphasis supplied).
There is no evidence to show that appellant was committing any crime at the time
of his arrest.
The testimony of Pat. Gonzales on the arrest of appellant is reproduced as follows:
FISCAL VILLAMIN:
(DIRECT EXAMINATION)
"Q: How did you effect the apprehension?
A: While we were approaching the accused we saw them
putting something inside a bag.
Q: What did you do then?
A: We apprehended them.
Q: Whom did you apprehend?
A: Pablo Rodriguez and Abrera.
Q: What procedure did you observe in arresting Rodriguez?
A: Furnished with the necessary information, we arrested the
accused while he was transacting marijuana.
Q: While making the arrest, what did you do?
A: I asked the accused what he was placing inside his pocket,
and I found out that it was marijuana" (TSN, June
11, 1985, p. 4; Underscoring supplied).
To the question of the defense counsel as to whether he saw appellant selling
marijuana, Pat. Gonzales answered:
"I did not see them actually transacting. However, we saw
them acting suspiciously" (TSN, June 11, 1985; p. 10). cdll
To the same question of the trial court, Pat. Gonzales answered:
"No, Your Honor, I did not" (TSN, June 11, 1985, p. 10).
The cardinal rule is that no person may be subjected by the police to a search of
his house, body or personal belonging except by virtue of a search warrant or on
the occasion of a lawful arrest (People v. De la Cruz, 184 SCRA 416 [1990]).
"If a person is searched without a warrant, or under circumstances other than those
justifying an arrest without warrant in accordance with law, merely on suspicion
that he is engaged in some felonious enterprise, and in order to discover if he has
indeed committed a crime, it is not only the arrest which is illegal but also, the
173
search on the occasion thereof as being 'the fruit of the poisonous tree'" (Guazon FIRST DIVISION
v. De Villa, 181 SCRA 623 [1990]; People v. Aminnudin, 163 SCRA 402 [1988];
U. S. v. Santos, 36 Phil. 853 [1917]; U. S. v. Hachaw, 21 Phil. 514 [1912]. In that
event, any evidence taken, even if confirmatory of the initial suspicion, is [G.R. No. 87059. June 22, 1992.]
inadmissible "for any purpose in any proceeding" (Nolasco v. Pao, 147 SCRA
509 [1987]; People v. Burgos, 144 SCRA 1 [1986]). llcd THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs. ROGELIO MENGOTE Y TEJAS, accused-appellant.
The marijuana supposedly confiscated from appellant is therefore inadmissible in
evidence for having been taken in violation of his constitutional right against
unreasonable searches and seizures. The Solicitor General for plaintiff-appellee.

WHEREFORE, the Decision of the Regional Trial Court convicting appellant is Violeta C. Drilon counsel de oficio for accused-appellant.
REVERSED AND SET ASIDE. Appellant is ACQUITTED of the offense
charged for failure of the prosecution to prove his guilt beyond reasonable doubt.
llcd SYLLABUS

SO ORDERED. 1. CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHT AGAINST ILLEGAL

SEARCH AND SEIZURE; EVIDENCE OBTAINED IN VIOLATION
Davide, Jr. and Bellosillo, JJ., concur. THEREOF; EFFECT; CASE AT BAR. It is submitted in the Appellant's Brief
that the revolver should not have been admitted in evidence because of its illegal
Cruz and Kapunan, JJ., are on leave. seizure, no warrant therefor having been previously obtained. Neither could it
have been seized as an incident of a lawful arrest because the arrest of Mengote
was itself unlawful, having been also effected without a warrant. The defense also
contends that the testimony regarding the alleged robbery in Danganan's house
was irrelevant and should also have been disregarded by the trial court. There is
||| (People v. Rodriguez y Cotarian, G.R. No. 79965, May 25, 1994) no question that evidence obtained as a result of an illegal search or seizure is
inadmissible in any proceeding for any purpose. That is the absolute prohibition
of Article III, Section 3(2), of the Constitution. This is the celebrated exclusionary
rule based on the justification given by Judge Learned Hand that "only in case the
prosecution which itself controls the seizing officials, knows that it cannot profit
by their wrong will the wrong be repressed."

2. REMEDIAL LAW; CRIMINAL PROCEDURE; ARREST WITHOUT

WARRANT; WHEN LAWFUL; REQUISITES; NOT ESTABLISHED IN CASE
AT BAR. The Solicitor General, while conceding the rule, maintains that it is
not applicable in the case at bar. His reason is that the arrest and search of
Mengote and the seizure of the revolver from him were lawful under Rule 113,
Section 5, of the Rules of Court. We have carefully examined the wording of this
rule and cannot see how we can agree with the prosecution. Par. (c) of Section 5 is
obviously inapplicable as Mengote was not an escapee from a penal institution
when he was arrested. We therefore confine ourselves to determining the
lawfulness of his arrest under either Par. (a) or Par. (b) of this section. Par. (a)

174
requires that the person be arrested (1) after he has committed or while he is
actually committing or is at least attempting to commit an offense, (2) in the
presence of the arresting officer. These requirements have not been established in
the case at bar. At the time of the arrest in question, the accused-appellant was
merely "looking from side to side" and "holding his abdomen," according to the
arresting officers themselves. There was apparently no offense that had just been
committed or was being actually committed or at least being attempted by
Mengote in their presence. Par. (b) is no less applicable because its no less
stringent requirements have also not been satisfied. The prosecution has not
shown that at the time of Mengote's arrest an offense had in fact just been
committed and that the arresting officers had personal knowledge of facts
indicating that Mengote had committed it. All they had was hearsay information
from the telephone caller, and about a crime that had yet to be committed.
DECISION
CRUZ, J p:
Accused-appellant Rogelio Mengote was convicted of illegal possession of
firearms on the strength mainly of the stolen pistol found on his person at the
moment of his warrantless arrest. In this appeal, he pleads that the weapon was
not admissible as evidence against him because it had been illegally seized and
was therefore the fruit of the poisonous tree. The Government disagrees. It insists
that the revolver was validly received in evidence by the trial judge because its
seizure was incidental to an arrest that was doubtless lawful even if admittedly
without warrant.
The incident occurred shortly before noon of August 8, 1987, after the Western
Police District received a telephone call from an informer that there were three
suspicious-looking persons at the corner of Juan Luna and North Bay Boulevard
in Tondo, Manila. A surveillance team of plainclothesmen was forthwith
dispatched to the place. As later narrated at the trial by Patrolmen Rolando
Mercado and Alberto Juan, 1 they there saw two men "looking from side to side,"
one of whom was holding his abdomen. They approached these persons and
identified themselves as policemen, whereupon the two tried to run away but were
unable to escape because the other lawmen had surrounded them. The suspects
were then searched. One of them, who turned out to be the accused-appellant, was
found with a .38 caliber Smith and Wesson revolver with six live bullets in the
chamber. His companion, later identified as Nicanor Morellos, had a fan knife
secreted in his front right pants pocket. The weapons were taken from them.
Mengote and Morellos were then turned over to police headquarters for
investigation by the Intelligence Division. LLpr
On August 11, 1987, the following information was filed against the accused-
appellant before the Regional Trial Court of Manila:
The undersigned accuses ROGELIO MENGOTE y TEJAS of
a violation of Presidential Decree No. 1866, committed as
follows:
That on or about August 8, 1987, in the City of Manila,
Philippines, the said accused did then and there wilfully,
unlawfully and knowingly have in his possession and under
his custody and control a firearm, to wit:
one (1) cal. 38 "S & W" bearing
Serial No. 8720-T.
without first having secured the necessary license or permit
therefor from the proper authorities.
Besides the police officers, one other witness presented by the prosecution was
Rigoberto Danganan, who identified the subject weapon as among the articles
stolen from him during the robbery in his house in Malabon on June 13, 1987. He
pointed to Mengote as one of the robbers. He had duly reported the robbery to the
police, indicating the articles stolen from him, including the revolver. 2 For his
part, Mengote made no effort to prove that he owned the firearm or that he was
licensed to possess it and claimed instead that the weapon had been "planted" on
him at the time of his arrest. 3
The gun, together with the live bullets and its holster, were offered as Exhibits A,
B and C and admitted over the objection of the defense. As previously stated, the
weapon was the principal evidence that led to Mengote's conviction for violation
of P.D. 1866. He was sentenced to reclusion perpetua. 4
It is submitted in the Appellant's Brief that the revolver should not have been
admitted in evidence because of its illegal seizure, no warrant therefor having
been previously obtained. Neither could it have been seized as an incident of a
lawful arrest because the arrest of Mengote was itself unlawful, having been also
175
effected without a warrant. The defense also contends that the testimony regarding
the alleged robbery in Danganan's house was irrelevant and should also have been
disregarded by the trial court.
The following are the pertinent provision of the Bill of Rights:
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.
Sec. 3 (1). The privacy of communication and correspondence
shall be inviolable except upon lawful order of the court, or
when public safety or order requires otherwise as prescribed
by law.
(2) Any evidence obtained in violation of this or the
preceding section shall be inadmissible for any purpose in any
proceeding.
There is no question that evidence obtained as a result of an illegal search or
seizure is inadmissible in any proceeding for any purpose. That is the absolute
prohibition of Article III, Section 3(2), of the Constitution. This is the celebrated
exclusionary rule based on the justification given by Judge Learned Hand that
"only in case the prosecution, which itself controls the seizing officials, knows
that it cannot profit by their wrong will the wrong be repressed."
The Solicitor General, while conceding the rule, maintains that it is not applicable
in the case at bar. His reason is that the arrest and search of Mengote and the
seizure of the revolver from him were lawful under Rule 113, Section 5, of the
Rules of Court reading as follows:
Sec. 5. Arrest without warrant; when lawful. A peace
officer or private person may without a warrant, arrest a
person: Cdpr
(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 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 has
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.
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.
We have carefully examined the wording of this rule and cannot see how we can
agree with the prosecution.
Par. (c) of Section 5 is obviously inapplicable as Mengote was not an escapee
from a penal institution when he was arrested. We therefore confine ourselves to
determining the lawfulness of his arrest under either Par. (a) or Par. (b) of this
section.
Par. (a) requires that the person be arrested (1) after he has committed or while he
is actually committing or is at least attempting to commit an offense, (2) in the
presence of the arresting officer.
These requirements have not been established in the case at bar. At the time of the
arrest in question, the accused-appellant was merely "looking from side to side"
and "holding his abdomen," according to the arresting officers themselves. There
was apparently no offense that had just been committed or was being actually
committed or at least being attempted by Mengote in their presence.
The Solicitor General submits that the actual existence of an offense was not
necessary as long as Mengote's acts "created a reasonable suspicion on the part of
176
the arresting officers and induced in them the belief that an offense had been
committed and that the accused-appellant had committed it." The question is,
What offense? What offense could possibly have been suggested by a person
"looking from side to side" and "holding his abdomen" and in a place not exactly
forsaken?
These are certainly not sinister acts. And the setting of the arrest made them less
so, if at all. It might have been different if Mengote had been apprehended at an
ungodly hour and in a place where he had no reason to be, like a darkened alley at
3 o'clock in the morning. But he was arrested at 11:30 in the morning and in a
crowded street shortly after alighting from a passenger jeep with his companion.
He was not skulking in the shadows but walking in the clear light of day. There
was nothing clandestine about his being on that street at that busy hour in the
blaze of the noonday sun.
On the other hand, there could have been a number of reasons, all of them
innocent, why his eyes were darting from side to side and he was holding his
abdomen. If they excited suspicion in the minds of the arresting officers, as the
prosecution suggests, it has nevertheless not been shown what their suspicion was
all about. In fact, the policemen themselves testified that they were dispatched to
that place only because of the telephone call from the informer that there were
"suspicious-looking" persons in that vicinity who were about to commit a robbery
at North Bay Boulevard. The caller did not explain why he thought the men
looked suspicious nor did he elaborate on the impending crime. LLpr
In the recent case of People v. Malmstedt, 5 the Court sustained the warrantless
arrest of the accused because there was a bulge in his waist that excited the
suspicion of the arresting officer and, upon inspection, turned out to be a pouch
containing hashish. In People v. Claudio, 6 the accused boarded a bus and placed
the buri bag she was carrying behind the seat of the arresting officer while she
herself sat in the seat before him. His suspicion aroused, he surreptitiously
examined the bag, which he found to contain marijuana. He then and there made
the warrantless arrest and seizure that we subsequently upheld on the ground that
probable cause had been sufficiently established.
The case before us is different because there was nothing to support the arresting
officers' suspicion other than Mengote's darting eyes and his hand on his
abdomen. By no stretch of the imagination could it have been inferred from these
acts that an offense had just been committed, or was actually being committed, or
was at least being attempted in their presence.
This case is similar to People v. Aminnudin, 7 where the Court held that the
warrantless arrest of the accused was unconstitutional. This was effected while he
was coming down a vessel, to all appearances no less innocent than the other
disembarking passengers. He had not committed nor was he actually committing
or attempting to commit an offense in the presence of the arresting officers. He
was not even acting suspiciously. In short, there was no probable cause that, as the
prosecution incorrectly suggested, dispensed with the constitutional requirement
of a warrant.
Par. (b) is no less applicable because its no less stringent requirements have also
not been satisfied. The prosecution has not shown that at the time of Mengote's
arrest an offense had in fact just been committed and that the arresting officers
had personal knowledge of facts indicating that Mengote had committed it. All
they had was hearsay information from the telephone caller, and about a crime
that had yet to be committed.
The truth is that they did not know then what offense, if at all, had been
committed and neither were they aware of the participation therein of the accused-
appellant. It was only later, after Danganan had appeared at the police
headquarters, that they learned of the robbery in his house and of Mengote's
supposed involvement therein. 8 As for the illegal possession or the firearm found
on Mengote's person, the policemen discovered this only after he had been
searched and the investigation conducted later revealed that he was not its owners
nor was he licensed to possess it.
Before these events, the peace officers had no knowledge even of Mengote'
identity, let alone the fact (or suspicion) that he was unlawfully carrying a firearm
or that he was involved in the robbery of Danganan's house.
In the landmark case of People v. Burgos, 9 this Court declared:
Under Section 6(a) of Rule 113, the officer arresting a person
who has just committed, is committing, or is about to commit
an offense must have personal knowledge of the fact. The
offense must also be committed in is presence or within his
view. (Sayo v. Chief of Police, 80 Phil. 859). (Emphasis
supplied)
xxx xxx xxx
177
 In arrests without a warrant under Section 6(b), however, it is The Court feels that if the peace officers had been more mindful of the provisions
not enough that there is reasonable ground to believe that the of the Bill of Rights, the prosecution of the accused-appellant might have
person to be arrested has committed a crime. A crime must in succeeded. As it happened, they allowed their over-zealousness to get the better of
fact or actually have been committed first. That a crime has them, resulting in their disregard of the requirements of a valid search and seizure
actually been committed is an essential precondition. It is not that rendered inadmissible the vital evidence they had invalidly seized. LLpr
enough to suspect that a crime may have been committed. The
fact of the commission of the offense must be undisputed. The This should be a lesson to other peace officers. Their impulsiveness may be the
test of reasonable ground applies only to the identity of the very cause of the acquittal of persons who deserve to be convicted, escaping the
perpetrator. (Emphasis supplied) clutches of the law because, ironically enough, it has not been observed by those
who are supposed to enforce it.
This doctrine was affirmed in Alih v. Castro, 10 thus:
WHEREFORE, the appealed decision is REVERSED and SET ASIDE. The
If the arrest was made under Rule 113, Section 5, of the Rules accused-appellant is ACQUITTED and ordered released immediately unless he is
of Court in connection with a crime about to be committed, validly detained for other offenses. No costs.
being committed, or just committed, what was that crime?
There is no allegation in the record of such a justification. SO ORDERED.
Parenthetically, it may be observed that under the Revised
Rule 113, Section 5(b), the officer making the arrest must Grio-Aquino, Medialdea and Bellosillo, JJ ., concur.
have personal knowledge of the ground therefor as stressed in
the recent case of People v. Burgos. (Emphasis supplied)
||| (People v. Mengote y Tejas, G.R. No. 87059, June 22, 1992)
It would be a sad day, indeed, if any person could be summarily arrested and
searched just because he is holding his abdomen, even if it be possibly because of
a stomachache, or if a peace officer could clamp handcuffs on any person with a
shifty look on suspicion that he may have committed a criminal act or is actually
committing or attempting it. This simply cannot be done in a free society. This is
not a police state where order is exalted over liberty or, worse, personal malice on
the part of the arresting officer may be justified in the name of security.

There is no need to discuss the other issues raised by the accused-appellant as the
ruling we here make is sufficient to sustain his exoneration. Without the evidence
of the firearm taken from him at the time of his illegal arrest, the prosecution has
lost its most important exhibit and must therefore fail. The testimonial evidence
against Mengote (which is based on the said firearm) is not sufficient to prove his
guilt beyond reasonable doubt of the crime imputed to him.

We commend Atty. Violeta Calvo-Drilon for her able and spirited defense of the
accused-appellant not only in the brief but also in the reply brief, which she did
not have to file but did so just the same to stress the constitutional rights of her
client. The fact that she was acting only as a counsel de oficio with no expectation
of material reward makes her representation even more commendable.

178
THIRD DIVISION
[G.R. No. 120431. April 1, 1998.]
RODOLFO ESPANO, accused-petitioner, vs. COURT OF
APPEALS and PEOPLE OF THE PHILIPPINES,
respondents.
Ceferino Padua Law Office for petitioner.
The Solicitor General for respondents.
SYNOPSIS
This is a petition for review of the decision of the court of Appeals in CA G.R.
CR No. 13976 dated January 16, 1995 which affirmed in toto the judgment of the
Regional Trial Court of Manila, Branch 1, convicting petitioner Rodolfo Espano
for violation of Article II Section 8 of REPUBLIC ACT NO. 6425, as amended,
otherwise known as the Dangerous Drugs Act of 1972. The records of the case
reveal that herein petitioner was caught in possession of and under his custody
twelve plastic cellophane bags weighing 5.5 grams containing crushed flowering
tops, marijuana which is a prohibited drug. In his appeal before the Supreme
Court, petitioner contends that the trial and appellate courts erred in convicting
him because (1) the pieces of evidence seized were inadmissible; (2) the
superiority of his constitutional right to be presumed innocent over the doctrine of
presumption of regularity; (3) he was denied the constitutional right of
confrontation and to compulsory process; and (4) his conviction was based on
evidence which was irrelevant and not properly identified. CIScaA
The Supreme Court finds that there was no compelling reason to reverse the
decisions of the trial and appellate courts. In this case, the findings of the trial
court that the prosecution witnesses were more credible than those of the defense
must stand. Petitioner failed to show that Pat. Romeo Pagilagan, in testifying
against him, was motivated by reasons other than his duty to curb drug abuse and
had any intent to falsely impute to him such a serious crime as possession of
prohibited drugs. In the absence of such ill motive, the presumption of regularity
in the performance of his official duty must prevail. Furthermore, the defense of
alibi set up by petitioner deserved scant consideration. He simply contended that
he was in his house sleeping at the time of the incident. Lastly, the two cellophane
bags of marijuana seized were admissible in evidence because he was caught in
flagranti as a result of a buy-bust operation conducted by police officers.
However, as for the other ten cellophane bags of marijuana found at petitioner's
residence, the same are inadmissible in evidence considering that the said bags
were seized at petitioner's house after his arrest, hence, do not fall under the
exceptions provided under Article III, Section 2 of the 1987 Constitution. In view
thereof, the instant petition is denied and the challenged decision is affirmed with
modification as to the penalty.
SYLLABUS
1. REMEDIAL LAW; EVIDENCE; CREDIBILITY OF WITNESSES;
FINDINGS OF TRIAL COURTS ON THE CREDIBILITY OF WITNESSES
DESERVE A HIGH DEGREE OF RESPECT; CASE AT BAR. It is a well-
settled doctrine that findings of trial courts on the credibility of witness deserve a
high degree of respect. Having observed the deportment of witnesses during the
trial, the trial judge is in a better position to determine the issue of credibility and,
thus, his findings will not be disturbed during appeal in the absence of any clear
and showing that he had overlooked, misunderstood or misapplied some facts or
circumstances of weight and substance which could have altered the conviction of
the appellants. In this case, the findings of the trial court that the prosecution
witnesses were more credible that those of the defense must stand. Petitioner
failed to show that Pat. Pagilagan, in testifying against him, was motivated by
reasons other than his duty to curb drug abuse and had any intent to falsely impute
to him such a serious crime as possession of prohibited drugs. In the absence of
such ill motive, the presumption of regularity in the performance of his official
duty must prevail.
2. ID.; ID.; ID.; CLAIM OF FRAME-UP, LIKE ALIBI, IS A DEFENSE THAT
HAS BEEN INVARIABLY VIEWED BY THE COURT WITH DISFAVOR;
CASE AT BAR. The defense set up by petitioner does not deserve any
consideration. He simply contended that he was in his house sleeping at the time
of the incident. This court has consistently held that alibi is the weakest of all
defenses; and for it to prosper, the accused has the burden of proving that he was
not at the scene of the crime at the time of its commission and that it was
physically impossible for him to be there. Moreover, the "claim of 'frame-up,' like
alibi, is a defense that has been invariably viewed by the Court with disfavor for it
can just as easily be concocted but difficult to prove, and is a common and
standard line of defense in most prosecutions arising from violations of the
Dangerous Drugs Act." No clear and convincing evidence was presented by
petitioner to prove his defense of alibi.
179
3. ID.; CRIMINAL PROCEDURE; WARRANTLESS ARREST; THE
MARIJUANA SEIZED FROM PETITIONER'S HOUSE AFTER HIS ARREST
IS INADMISSIBLE IN EVIDENCE; CASE AT BAR. The 1987 Constitution
guarantees freedom against unreasonable searches and seizures under Article III,
Section 2 which 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." An exception to the said rule is a
warrantless search incidental to a lawful arrest of dangerous weapons or anything
which may be used as proof of the commission of an offense. It may extend
beyond the person of the one arrested to include the premises or surroundings
under his immediate control. In this case, the ten cellophane bags of marijuana
seized at petitioner's house after his arrest at Pandacan and Zamora Streets do not
fall under the said exceptions. . . . The articles seized from petitioner during his
arrest were valid under the doctrine of search made incidental to a lawful arrest.
The warrantless search made in his house, however, which yielded ten cellophane
bags of marijuana became unlawful since the police officers were not armed with
a search warrant at the time. Moreover, it was beyond the reach and control of
petitioner. HTScEI
4. CRIMINAL LAW; REPUBLIC ACT NO. 6425 AS AMENDED BY Republic
Act 7659; IF THE QUANTITY OF MARIJUANA INVOLVED IS LESS THAN
750 GRAMS, THE IMPOSABLE PENALTY RANGES FROM PRISION
CORRECTIONAL TO RECLUSION TEMPORAL; CASE AT BAR. This Court
finds petitioner Rodolfo Espano guilty beyond reasonable doubt of violating
Article II, Section 8, in relation to Section 2 (e-L)(I) of REPUBLIC ACT NO.
6425, as amended. Under the said provision, the penalty imposed is six years and
one day to twelve years and a fine ranging from six thousand to twelve thousand
pesos. With the passage of Republic Act No. 7659, which took effect on
December 31, 1993, the imposable penalty shall now depend on the quantity of
drugs recovered. Under the provisions of Republic Act No. 7659, Section 20, and
as interpreted in People v. Simon (234 SCRA 555 [1994]) and People v. Lara,
(236 SCRA 291 [1994]) if the quantity of marijuana involved is less than 750
grams, the imposable penalty ranges from prision correccional to reclusion
temporal. Taking into consideration that petitioner is not a habitual delinquent, the
amendatory provision is favorable to him and the quantity of marijuana involved
is less than 750 grams, the penalty imposed under Republic Act No. 7659 should
be applied.
5. ID.; ID.; PROPER PENALTY THEREOF; CASE AT BAR. There being no
mitigating nor aggravating circumstances, the imposable penalty shall be prision
correccional in its medium period. Applying the Indeterminate Sentence Law, the
maximum penalty shall be taken from the medium period of prision correccional,
which is two (2) years, four (4) months and one (1) day to four (4) years and two
(2) months, while the minimum shall be taken from the penalty next lower in
degree, which is one (1) month and one (1) day to six (6) months of arresto
mayor. cSDHEC
DECISION
ROMERO, J p:
This is a petition for review of the decision of the Court of Appeals in CA-G.R.
CR No. 13976 dated January 16, 1995, 1 which affirmed in toto the judgment of
the Regional Trial Court of Manila, Branch 1, convicting petitioner Rodolfo
Espano for violation of Article II, Section 8 of REPUBLIC ACT NO. 6425, as
amended, otherwise known as the Dangerous Drugs Act. aisadc
Petitioner was charged under the following information:
"That on or about July 14, 1991, in the City of Manila,
Philippines the said accused, not being authorized by law to
possess or use any prohibited drug, did then and there
wilfully, unlawfully and knowingly have in his possession
and under his custody and control twelve (12) plastic
cellophane (bags) containing crushed flowering tops,
marijuana weighing 5.5 grams which is prohibited drug.
Contrary to law." 2
The evidence for the prosecution, based on the testimony of Pat. Romeo
Pagilagan, shows that on July 14, 1991, at about 12:30 a.m., he and other police
officers, namely, Pat. Wilfredo Aquilino, Simplicio Rivera, and Erlindo Lumboy
of the Western Police District (WPD), Narcotics Division went to Zamora and
Pandacan Streets, Manila to confirm reports of drug pushing in the area. They saw
petitioner selling "something" to another person. After the alleged buyer left, they
approached petitioner, identified themselves as policemen, and frisked him. The
180
search yielded two plastic cellophane tea bags of marijuana . When asked if he
had more marijuana, he replied that there was more in his house. The policemen
went to his residence where they found ten more cellophane tea bags of
marijuana. Petitioner was brought to the police headquarters where he was
charged with possession of prohibited drugs. On July 24, 1991, petitioner posted
bail 3 and the trial court issued his order of release on July 29, 1991. 4
Annabelle Alip, forensic chemist of the WPD Criminal Investigation Laboratory
Section, testified that the articles sent to her by Pat. Wilfredo Aquino regarding
the apprehension of a certain Rodolfo Espano for examination tested positive for
marijuana, with total weight of 5.5 grams.
By way of defense, petitioner that on said evening, he was sleeping in house and
was awakened only when the policemen handcuffed him. He alleged that the
policemen were looking for his brother-in-law Lauro, and when they could not
find the latter, he was brought to the police station for investigation and later
indicted for possession of prohibited drugs. His wife Myrna corroborated his
story.
The trial court rejected petitioner's defense as a "mere afterthought" and found the
version of the prosecution "more credible and trustworthy."
Thus, on August 14, 1992, the trial court rendered a decision, convicting
petitioner of the crime charged, the dispositive portion of which reads:
"WHEREFORE there being proof beyond reasonable doubt,
the court finds the accused Rodolfo Espano y Valeria guilty
of the crime of violation of Section 8, Article II, in relation to
Section 2 (e-L) (I) of REPUBLIC ACT NO. 6425 as amended
by Batas Pambansa Blg. 179, and pursuant to law hereby
sentences him to suffer imprisonment of six (6) years and one
(1) day to twelve (12) years and to pay a fine of P6,000.00
with subsidiary imprisonment in case of default plus costs.
The marijuana is declared fortified in favor of government
and shall be turned over to the Dangerous Drugs Board
without delay.
SO ORDERED." 5
Petitioner appealed the decision to the Court of Appeals. The appellate court,
however, affirmed the decision of the trial court in toto.
Hence, this petition.
Petitioner contends that the trial and appellate courts erred in convicting him on
the basis of the following: (a) the pieces of evidence seized were inadmissible; (b)
the superiority of his constitutional right to be presumed innocent over the
doctrine of presumption of regularity; (c) he was denied the constitutional right of
confrontation and to compulsory process; and (d) his conviction was based on
evidence which was irrelevant and not properly identified.
After a careful examination of the records of the case, this Court finds no
compelling reason sufficient to reverse the decisions of the trial and appellate
courts.
First, it is a well settled doctrine that findings of trial courts on the credibility of
witnesses deserve a high degree of respect. Having observed the deportment of
witnesses during the trial, the trial judge is in a better position to determine the
issue of credibility and, thus, his findings will not be disturbed during appeal in
the absence of any clear showing that he had overlooked, misunderstood or
misapplied some facts or circumstances of weight and substance which could have
altered the conviction of the appellants. 6
In this case, the findings of the trial court that the prosecution witnesses were
more credible than those of the defense must stand. Petitioner failed to show that
Pat. Pagilagan, in testifying against him, was motivated by reasons other than his
duty to curb drug abuse and had any intent to falsely impute to him such a serious
crime as possession of prohibited drugs. In the absence of such ill motive, the
presumption of regularity of his official duty must prevail.
In People v. Velasco, 7 this Court reiterated the doctrine of presumption of
regularity in the performance of official duty which provides:
". . . Appellant failed to establish that Pat. Godoy and the
other members of the buy-bust team are policemen engaged in
mulcting or other unscrupulous activities who where
motivated either by the desire to extort money or exact
personal vengeance, or by sheer whim and caprice, when they
entrapped her. And in the absence of proof of any intent on
the part of the police authorities to falsely impute such a
181
 serious crime against appellant, as in this case, the
presumption of regularity in the performance of official duty,
. . ., must prevail over the self-serving and uncorroborated
claim of appellant that she had been framed." 8
Furthermore, the defense set up by petitioner does not deserve any consideration.
He simply contended that he was in his house sleeping at the time of the incident.
This Court has consistently held that alibi is the weakest of all defenses; and for it
to prosper, the accused has the burden of proving that he was not at the scene of
the crime of its commission and that it was physically impossible for him to be
there. Moreover, the "claim of a 'frame-up', like alibi, is a defense that has been
invariably viewed by the Court with disfavor for it can just as easily be concocted
but difficult to prove, and is a common and standard line of defense in most
prosecutions arising from violations of the Dangerous Drugs Act." 9 No clear and
convincing evidence was presented by petitioner to prove his defense of alibi.
Second, petitioner contends that the prosecution's failure to present the alleged
informant in court cast a reasonable doubt which warrants his acquittal. This is
again without merit, since failure of the prosecution to produce the informant in
court is of no moment especially when he is not even the best witness to establish
the fact that a buy-bust operation had indeed been conducted. In this case, Pat.
Pagilagan, one of the policemen who apprehended petitioner, testified on the
actual incident of July 14, 1991, and identified him as the one they caught in
possession of prohibited drugs. Thus,
"We find that the prosecution had satisfactorily proved its
case against appellants. There is no compelling reason for us
to overturn the finding of the trial court that the testimony of
Sgt. Gamboa, the lone witness for the prosecution, was
straightforward, spontaneous and convincing. The testimony
of a sole witness, if credible and positive and satisfies the
court beyond reasonable doubt, is sufficient to convict." 10
Thus on the basis of Pat. Pagilagan's testimony, the prosecution was able to prove
that petitioner indeed committed the crime charged; consequently, the finding of
conviction was proper.
Lastly, the issue on the admissibility of the marijuana seized should likewise be
ruled upon. Rule 113 Section 5(a) of the Rules of Court provides:
"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;
xxx xxx xxx."
Petitioner's arrest falls squarely under the aforecited rule. He was caught in
flagranti as a result of a buy-bust operation conducted by police officers on the
basis of information received regarding the illegal trade of drugs within the area of
Zamora and Pandacan Streets, Manila. The police officer saw petitioner handing
over something to an alleged buyer. After the buyer left, they searched him and
discovered two cellophanes of marijuana. His arrest was, therefore, lawful and the
two cellophane bags of marijuana seized were admissible in evidence, being the
fruits of the crime.
As for the ten cellophane bags of marijuana found at petitioner's residence,
however, the same inadmissible in evidence.
The 1987 Constitution guarantees freedom against unreasonable searches and
seizures under Article III, Section 2 which 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 purposes 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."
An exception to the said rule is a warrantless search incidental to a lawful arrest
for dangerous weapons or anything which may be used as proof of the
commission of an offense. 11 It may extend beyond the person of the one arrested
to include the premises or surroundings under his immediate control. In this case,
the ten cellophane bags of marijuana seized at petitioner's house after his arrest at
Pandacan and Zamora Streets do not fall under the said exceptions.
In the case of People v. Lua, 12 this Court held:
182
 "As regards the brick of marijuana found inside the
appellant's house, the trial court correctly ignored it
apparently in view of its inadmissibility. While initially the
arrest as well as the body search was lawful, the warrantless
search made inside the appellant's house became unlawful
since the police operatives were not armed with a search
warrant. Such search cannot fall under "search made
incidental to a lawful arrest," the same being limited to body
search and to that point within reach or control of the person
arrested, or that which may furnish him with the means of
committing violence or of escaping. In the case at bar,
appellant was admittedly outside his house when he was
arrested. Hence, it can hardly be said that the inner portion of
his house was within his reach or control."
WHEREFORE, the instant petition is hereby DENIED. The decision of the Court
of Appeals in C.A.-G.R. CR No. 13976 dated January 16, 1995 is AFFIRMED
with the MODIFICATION that petitioner Rodolfo Espano is sentenced to suffer
an indeterminate penalty of TWO (2) months and ONE (1) day of arresto mayor,
as minimum of TWO (2) years, FOUR (4) months and ONE (1) day of prision
correccional, as minimum.
SO ORDERED.
Narvasa, C .J ., Kapunan and Purisima, JJ ., concur. aisadc
||| (Espano v. Court of Appeals, G.R. No. 120431, April 01, 1998)

The articles seized from petitioner during his arrest were valid under the doctrine
of search made incidental to a lawful arrest. The warrantless search made in his
house, however, which yielded ten cellophane bags of marijuana became unlawful
since the police officers were not armed with a search warrant at the time.
Moreover, it was beyond the reach and control of petitioner.

In sum, this Court finds petitioner Rodolfo Espano guilty beyond reasonable
doubt of violating Article II, Section 8, in relation to Section 2 (e-L) (I) of
REPUBLIC ACT NO. 6425, as amended. Under the said provision, the penalty
imposed is six years and one day to twelve years and a fine ranging from six
thousand to twelve thousands pesos. With the passage of Republic Act No. 7659,
with took effect on December 31, 1993, the imposable penalty shall now depend
on the quantity of drugs recovered. Under the provisions of Republic Act No.
7659, Section 20, and as interpreted in People v. Simon 13 and People v. Lara, 14
if the quantity of marijuana involved is less than 750 grams, the imposable penalty
ranges from prision correccional to reclusion temporal. Taking into consideration
that petitioner is not a habitual delinquent, the amendatory provision is favorable
to him and the quantity of marijuana involved is less than 750 grams, the penalty
imposed under Republic Act No. 7659 should be applied. There being no
mitigating nor aggravating circumstances, the imposable penalty shall be prision
correccional in its medium period. Applying the Indeterminate Sentence Law, the
maximum penalty shall be taken from the medium period of prision correccional,
which is two (2) years, four (4) months and one (1) day to four (4) years and two
(2) months, while the minimum shall be taken from the penalty next lower in
degree, which is one (1) month and one (1) day six (6) months of arresto mayor.

183
THIRD DIVISION
[G.R. No. 97143. October 2, 1995.]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.
ARTURO FIGUEROA, accused-appellant.
The Solicitor General for plaintiff-appellee. cdlex
Public Attorney's Office for accused-appellant.
SYLLABUS
1. REMEDIAL LAW; EVIDENCE; ADMISSIBILITY; ARTICLES SEIZED
INCIDENTAL TO A LAWFUL ARREST; ADMISSIBLE IN EVIDENCE.
The .45 caliber pistol, magazine and rounds of ammunition were not unlawfully
obtained. While we might concede difficulty in readily accepting the statement of
the prosecution that the search was conducted with consent freely given by
appellant and members of his household, it should be pointed out, in any case, that
the search and seizure was done admittedly on the occasion of a lawful arrest. A
significant exception from the necessity for a search warrant is when the search
and seizure is effected as an incident to a lawful arrest and so, in People vs. Musa,
(217 SCRA 597) this Court elaborated; thus "The warrantless search and seizure,
as an incident to a suspect's lawful arrest, may extend beyond the person of the
one arrested to include the premises or surrounding under his immediate control.
Objects in the 'plain view' of an officer who has the right to be in the position to
have that view are subject to seizure and may be presented as evidence."
2. ID.; ID.; TESTIMONY OF WITNESSES; CREDIBILITY THEREOF; NOT
AFFECTED BY INCONSISTENCIES ON MINOR DETAILS; CASE AT BAR.
Appellant faults the trial court for giving credence to the testimony given by
witnesses for the prosecution despite what he claims to be inconsistencies in their
declarations. Appellant particularly calls attention to the assertion of prosecution
witness Sgt. Atas, to the effect that appellant was with a companion inside a room
when arrested and that the seized firearm was found under the cushion of the bed,
against the statement of Capt. Rosario, another prosecution witness, that appellant
was alone when arrested and that the gun was found under appellant's bed. We do
not consider these discrepancies to be so major as to warrant a complete rejection
of their questioned testimony. It is not unnatural for witnesses of the same
incident to somehow perceive differently and to thereby vary in their respective
accounts of the event. The contradiction of witnesses on minor details is nothing
unusual and should be expected. We see no cogent reason for not according due
respect to the findings of the trial court on the credibility of the witnesses.
3. ID.; ID.; PRESUMPTION THAT OFFICIAL DUTY HAS BEEN
REGULARLY PERFORMED; APPLICABLE IN CASE AT BAR. It is
claimed that appellant was just "framed-up." The conduct of the appellant
following his arrest would belie this allegation. Appellant himself admitted that he
failed to complain about this matter when he was apprehended. Neither did he
report the so called "planting of the gun" to the police authorities nor did he bring
it up before the Metropolitan Trial Judge when he appeared for preliminary
investigation. In fact, it would seem that the only time appellant mentioned the
alleged "frame-up" was when he testified at the trial of this case. No plausible
reason was given by appellant that would have prompted police authorities to
falsely impute a serious crime against him. Absent a strong showing to the
contrary, we must accept the presumption of regularity in the performance of
official duty. cdlex
DECISION
VITUG, J p:
Arturo Figueroa was charged with Illegal Possession of Firearm and
Ammunition in an information that read:
"The undersigned Assistant City Prosecutor accuses
ARTURO FlGUEROA of the crime of Illegal Possession of
the Firearm and Ammunition, committed as follows:
"That on or about the 10th day of November 1989 at San
Francisco Subdivision, Brgy. San Juan, Municipality of Gen.
Trias, Province of Cavite, Philippines and within the
jurisdiction of this Honorable Court, the above-named
accused, did, then and there, willfully, unlawfully and
feloniously have in his possession and control one (1) pistol
cal. 45 with defaced serial number with one magazine and
seven (7) live ammunitions for the said firearm without first
184
 having obtained the necessary permit or license from
competent authority to possess the same." 1
When arraigned, the accused entered a plea of "Not Guilty";
thereupon, trial ensued.
It would appear that on 10 November 1989, at around seven o'clock
in the morning, Captain Lodivino Rosario, the Executive Officer of the 215th
PC Company, and his men arrived at the residence of accused Arturo
Figueroa at Barangay San Juan, San Francisco Subdivision, General Trias,
Cavite, to serve a warrant for his arrest issued by the Regional Trial Court of
Makati, Branch 56, in Criminal Case No. 411 and Criminal Case No. 412 (for
the crime of Illegal Possession of Ammunitions and for Violation of Section
16, Art. III, Republic Act 6425). While serving the warrant of arrest, the
officers noticed, strewn around, aluminum foil packages of different sizes in
the sala. Suspecting thus the presence of "shabu" in the premises, the
arresting officers requested appellant, as well as his brother and sister, to
acquiesce to a search of the house. The search yielded a .45 caliber pistol, a
magazine, seven live ammunitions, and a match box containing an aluminum
foil package with "shabu." Confronted, Figueroa denied ownership of the
items. An inventory was conducted by the PC team, attested to by Barangay
Captain Bigornia, of the seized items.
The accused, besides assailing the credibility of the witnesses for the
prosecution, questioned the admissibility in evidence of the firearm and
rounds of ammunition which, he claims, were discovered and taken during
warrantless search.
On 30 October 1990, the trial court rendered a decision finding the
accused Arturo Figueroa guilty.
From the judgment, the decretal portion of which reads
"WHEREFORE, the Court finds the accused guilty beyond
reasonable doubt of the crime charged and is hereby
sentenced to suffer the penalty of reclusion perpetua (life
imprisonment) and to pay the costs.
"The firearm and ammunitions are confiscated and forfeited
in favor of the government.
"Capt. Lodivino Rosario, Executive Officer, 215th PC Coy, is
hereby ordered to return to Arturo Figueroa the motorcycle
with Motor Engine No. KIE 073574 taken from the house of
the Figueroas on November 10. 1989." 2
this appeal is interposed by Arturo Figueroa (a) reiterating his argument
against the admissibility against him of evidence seized following a
warrantless search and (b) challenging anew the credibility of the prosecution
witnesses.
The appeal cannot be sustained. cdll
The .45 caliber pistol, magazine and rounds of ammunition were not unlawfully
obtained. While we might concede difficulty in readily accepting the statement of
the prosecution that the search was conducted with consent freely given by
appellant and members of his household, it should be pointed out, in any case, that
the search and seizure was done admittedly on the occasion of a lawful arrest. 3
A significant exception from the necessity for a search warrant is
when the search and seizure is effected as an incident to a lawful arrest 4 and
so, in People vs. Musa, 5 this Court elaborated; thus
"The warrantless search and seizure, as an incident to a
suspect's lawful arrest, may extend beyond the person of the
one arrested to include the premises or surrounding under his
immediate control. Objects in the 'plain view' of an officer
who has the right to be in the position to have that view are
subject to seizure and may be presented as evidence."
Appellant faults the trial court for giving credence to the testimony
given by witnesses for the prosecution despite what he claims to be
inconsistencies in their declarations. Appellant particularly calls attention to
the assertion of prosecution witness Sgt. Atas, to the effect that appellant was
with a companion inside a room when arrested and that the seized firearm
was found under the cushion of the bed, against the statement of Capt.
Rosario, another prosecution witness, that appellant was alone when arrested
and that the gun was found under appellant's bed. We do not consider these
discrepancies to be so major as to warrant a complete rejection of their
questioned testimony. It is not unnatural for witnesses of the same incident to
somehow perceive differently and to thereby vary in their respective accounts
of the event. 6 The contradiction of witnesses on minor details is nothing
unusual and should be expected. 7 We see no cogent reason for not according
due respect to the findings of the trial court on the credibility of the witnesses.
185
 Finally, it is claimed that appellant was just "framed-up." The EN BANC
conduct of the appellant following his arrest would belie this allegation.
Appellant himself admitted that he failed to complain about this matter when
he was apprehended. Neither did he report the so-called "planting of the gun" [G.R. No. 80508. January 30, 1990.]
to the police authorities nor did he bring it up before the Metropolitan Trial
Judge when he appeared for preliminary investigation. In fact, it would seem EDDIE GUAZON, JOSEFINA CABRERA, YOLANDA
that the only time appellant mentioned the alleged "frame-up" was when he DACUNES, VIOLETA SEVILLA, QUERUBIN BILLONES,
testified at the trial of this case. No plausible reason was given by appellant ESTELITA BILLONES, GORGONIA MACARAEG,
that would have prompted police authorities to falsely impute a serious crime LAUREANA JOAQUIN, CRESTITA LICUP, SOLIDAD
against him. Absent a strong showing to the contrary, we must accept the ABURDO, ROSALINA VILLARDA, CONRADA HOBALANE,
presumption of regularity in the performance of official duty. 8 ERLINDA RESTORAN, VERIDIAN FLORA, ROSELA
WHEREFORE, the appealed decision is AFFIRMED in toto. Costs CONDE, SOSIMA COSTO, JOSEFINA ALDIANO,
against accused-appellant. ROSALINA DOMINGO, ARESTIO YANGA, MILAGROS
GONZALES, ESTRELITA ESTARES, BONIFACIA ANTIVO,
SO ORDERED. LexLibris PATRIA VALLES, ERLINDA LEE, MELANIO GAROFIL,
ERIBERTO MATEO, FRANCISCO HORTILLANO,
Feliciano and Romero, JJ., concur. ANATALIA PESIMO, LOSENDO GARBO, VIRGINIA
LORESTO, LYDIA ELA, RAFAEL VILLABRILLE, MA.
Melo, J., is on leave. RECHILDA SABALZA, EDITHA MAAMO, ELENIETA
BANOSA, ALEXANDER LABADO, ANDREW GO,
||| (People v. Figueroa, G.R. No. 97143, October 02, 1995) WYNEFREDO REYES, ROSARIO SESPENE, ROSA
MARTIN and JAIME BONGAT, petitioners, vs. MAJ. GEN.
RENATO DE VILLA, BRIG. GEN ALEXANDER AGUIRRE,
BRIG. GEN. RAMON MONTANO, BRIG. GEN. ALFREDO
LIM, and COL. JESUS GARCIA, respondents.

SYLLABUS

1. CONSTITUTIONAL LAW; SATURATION DRIVE; CONSIDERED

UNLAWFUL IN CASE AT BAR. The facts that on twelve occasions between
March and November, 1987 the military conducted the saturation drives in
question is a fact open to no question. The Solicitor General admits that they, the
saturation drives, had been done, except that they had been done "with due regard
to human rights." "Not only that," so he states: . . . they were intelligently and
carefully planned months ahead of the actual operation. They were executed in
coordination with barangay officials who pleaded with their constituents to submit
themselves voluntarily for character and personal verification. Local and foreign
correspondents, who had joined these operations, witnessed, and reported the
events that transpired relative thereto. (After Operation Reports: November 5,
1987, Annex 12; November 20, 1987, Annex 13; November 24, 1987, Annex 14).
That is why in all the drives so far conducted, the alleged victims who numbered

186
thousands had not themselves complained. The question, then, is purely one of
law: Are the saturation drives in question lawful and legitimate? It is also a
question that is nothing novel: No, because the arrests were not accompanied by a
judicial warrant. Therefore, the fact that they had been carefully planned, executed
in coordination with Tondo's barangay officials, and undertaken with due courtesy
and politeness (which I doubt), will not validate them. The lack of a warrant
makes them, per se, illegal. I find allusions to the last aborted coup d'etat inapt. In
that case, our men in uniform had all the right to act amidst crimes being
committed in flagrante. The instant case is quite different. There are no offenses
being committed, but rather, police officers fishing for evidence of offenses that
may have been committed. As I said, in that event, a court warrant is
indispensable.
2. ID.; ID.; "SHOW OF FORCE" IN THE ABSENCE OF JUDICIAL
WARRANT; CONSIDERED A VIOLATION OF HUMAN RIGHT.
According to the majority, "the remedy is not to stop all police actions, including
the essential and legitimate ones . . . [w]e see nothing wrong in police making
their presence visibly felt in troubled areas . . . " But the petitioners have not come
to court to "stop all police actions" but rather, the saturation drives, which are,
undoubtedly, beyond police power. That "[a] show of force is sometimes
necessary as long as the rights of people are protected and not violated" is a
contradiction in terms. A "show of force" (by way of saturation drives) is a
violation of human rights because it is not covered by a judicial warrant. In all
candor, I can not swallow what I find is a complete exaggeration of the issues: . . .
A show of force is sometimes necessary as long as the rights of people are
protected and not violated. A blanket prohibition such as that sought by the
petitioners would limit all police actions to one on one confrontations where
search warrants and warrants of arrests against specific individuals are easily
procured. Anarchy may reign if the military and the police decide to sit down in
their offices because all concerted drives where a show of force is present are
totally prohibited. As a general rule, a peace officer can not act unless he is
possessed of the proper arrest or search warrant. The exception is when a criminal
offense is unfolding before him, in which case, action is justified and necessary.
The majority would have the exception to be simply, the general rule.
3. ID.; ID.; ID.; FALLS WITHIN THE JURISDICTION OF SUPREME COURT.
That "the problem is not initially for the Supreme Court" is to me, an
abdication of judicial duty. As I indicated, the controversy is purely one of law
the facts being undisputed. Law, needless to say, is the problem of the Supreme
Court, not the Executive. Worse, it is passing the buck. The petitioners, precisely,
have a grievance to raise, arising from abuses they pinpoint to the lower offices of
the Executive (which presumably has its imprimatur). To make it an executive
problem, so I hold, is to make the Executive judge and jury of its own acts, and
hardly, a neutral arbiter. I am also taken aback by references to "[w]ell meaning
citizens with only second hand knowledge of the events . . . keep[ing] on
indiscriminately tossing problems of the Executive, the military, and the police to
the Supreme Court as if we are the repository of all remedies for all evils." First,
the facts are not "second-hand", they are undisputed: There had been saturation
drives. Second, the petitioners have trooped to the highest court with a legitimate
grievance against the Executive (and military).
DECISION
GUTIERREZ, JR., J p:
This is a petition for prohibition with preliminary injunction to prohibit the
military and police officers represented by public respondents from conducting
"Areal Target Zonings" or "Saturation Drives" in Metro Manila.
The forty one (41) petitioners state that they are all of legal age, bonafide residents
of Metro Manila and taxpayers and leaders in their respective communities. They
maintain that they have a common or general interest in the preservation of the
rule of law, protection of their human rights and the reign of peace and order in
their communities. They claim to represent "the citizens of Metro Manila who
have similar interests and are so numerous that it is impracticable to bring them all
before this Court."
The public respondents, represented by the Solicitor General, oppose the petition
contending inter alia that petitioners lack standing to file the instant petition for
they are not the proper parties to institute the action. prcd
According to the petitioners, the following "saturation drives" were conducted in
Metro Manila:
1. March 5, 1987 at about 9:30 PM in Tindalo, Kagitingan,
and Magdalena Streets, Tondo, Manila.
2. June 19, 1987 at about 10:00 PM in Mata Street, Panday
Pira Extension and San Sebastian Street, Tondo,
Manila.
187
 3. July 20, 1987 at about 8:00 AM in Bangkusay Street,
Tondo, Manila.
4. August 11 to 13, 1987 between 11:00 PM and 2:00 AM in
six blocks along Aroma Beach up to Happy Land,
Magsaysay Village, Tondo, Manila.
5. August 19, 1987 at 9:00 PM in Herbosa Extension, Quirino
Street, and Pacheco Street, Tondo, Manila.
6. August 28, 1987 at 10:30 PM, in Block 34, Dagat-dagatan,
Navotas, Metro Manila.
7. August 30, 1987 at 9:30 PM at Paraiso Extension,
Magsaysay Village, Tondo, Manila.
8. October 12, 1987 at 12:00 midnight in Apelo Cruz
Compound, Quezon City.
9. October 17, 1987 at 11:00 PM in Quirino Street, Tondo,
Manila.
10. October 23, 1987 at 2:30 A.M. in Sun Valley Drive,
Manila International Airport, Pasay City.
11. November 1, 1987 at 4:00 A.M. in Cordillera Street, Sta.
Mesa, Manila.
12. November 3, 1987 at 5:00 A.M. in Lower Maricaban,
Pasay City, Metro Manila.
According to the petitioners, the "areal target zonings" or "saturation drives" are
in critical areas pinpointed by the military and police as places where the
subversives are hiding. The arrests range from seven (7) persons during the July
20 saturation drive in Bangkusay, Tondo to one thousand five hundred (1,500)
allegedly apprehended on November 3 during the drive at Lower Maricaban,
Pasay City. The petitioners claim that the saturation drives follow a common
pattern of human rights abuses. In all these drives, it is alleged that the following
were committed:
"1. Having no specific target house in mind, in the dead of the
night or early morning hours, police and military units
without any search warrant or warrant of arrest cordon an area
of more than one residence and sometimes whole barangay or
areas of barangay in Metro Manila. Most of them are in
civilian clothes and without nameplates or identification
cards.
"2. These raiders rudely rouse residents form their sleep by
banging on the walls and windows of their homes, shouting,
kicking their doors open (destroying some in the process), and
then ordering the residents within to come out of their
respective residences.
"3. The residents at the point of high-powered guns are
herded like cows, the men are ordered to strip down to their
briefs and examined for tattoo marks and other imagined
marks.
"4. While the examination of the bodies of the men are being
conducted by the raiders, some of the members of the raiding
team force their way into each and every house within the
cordoned off area and then proceed to conduct search of the
said houses without civilian witnesses from the neighborhood.
"5. In many instances, many residents have complained that
the raiders ransack their homes, tossing about the residents'
belongings without total regard for their value. In several
instances, walls are destroyed, ceilings are damaged in the
raiders' illegal effort to 'fish' for incriminating evidence.
"6. Some victims of these illegal operations have complained
with increasing frequency that their money and valuables
have disappeared after the said operations.
"7. All men and some women who respond to these illegal
and unwelcome intrusions are arrested on the spot and hauled
off to waiting vehicles that take them to detention centers
where they are any warrants of arrest duly issued by a judge,
nor under the conditions that will authorize warrantless arrest.
Some hooded men are used to fingerpoint suspected
subversives.
188

"8. In some instances, arrested persons are released after the
expiration of the period wherein they can be legally detained
without any charge at all. In other instances, some arrested
persons are released without charge after a few days of
arbitrary detention.
"9. The raiders almost always brandish their weapons and
point them at the residents during these illegal operations.
"10. Many have also reported incidents of 'on-the-spot
beatings', maulings and maltreatment.
"11. Those who are detained for further 'verification' by the
raiders are subjected to mental and physical torture to extract
confessions and tactical information." (Rollo, pp. 2-4)
The public respondents stress two points in their Comment which was also
adopted as their Memorandum after the petition was given due course.
First, the respondents have legal authority to conduct saturation drives. And
second, they allege that the accusations of the petitioners about a deliberate
disregard for human rights are total lies.
Insofar as the legal basis for saturation drives is concerned, the respondents cite
Article VII, Section 17 of the Constitution which provides:
"The President shall have control of all the executive
departments, bureaus and offices. He shall ensure that the
laws be faithfully executed. (Emphasis supplied by the
respondents.)
They also cite Section 18 of the same Article which provides:
"The President shall be the Commander-in-Chief of all armed
forces of the Philippines and whenever it becomes necessary,
he may call out such armed forces to prevent or suppress
lawless violence, invasion or rebellion. . . . ."
There can be no question that under ordinary circumstances, the police action of
the nature described by the petitioners would be illegal and blantantly violative of
the express guarantees of the Bill of Rights. If the military and the police must
conduct concerted campaigns to flush out and catch criminal elements, such
drives must be consistent with the constitutional and statutory rights of all the
people affected by such actions. llcd
There is, of course, nothing in the Constitution which denies the authority of the
Chief Executive, invoked by the Solicitor General, to order police actions to stop
unabated criminality, rising lawlessness, and alarming communist activities. The
Constitution grants to Government the power to seek and cripple subversive
movements which would bring down constituted authority and substitute a regime
where individual liberties are suppressed as a matter of policy in the name of
security of the State. However, all police actions are governed by the limitations
of the Bill of Rights. The Government cannot adopt the same reprehensible
methods of authoritarian systems both of the right and of the left, the enlargement
of whose spheres of influence it is trying hard to suppress. Our democratic
institutions may still be fragile but they are not in the least bit strengthened
through violations of the constitutional protections which are their distinguishing
features.
In Roan v. Gonzales (145 SCRA 687; 690-691 [1986], the Court stated:
"One of the most precious rights of the citizen in a free
society is the right to be left alone in the privacy of his own
house. That right has ancient roots, dating back through the
mists of history to the mighty English kings in their fortresses
of power. Even then, the lowly subject had his own castle
where he was monarch of all he surveyed. This was his
humble cottage from which he could bar his sovereign lord
and all the forces of the Crown.
"That right has endured through the ages albeit only in a few
libertarian regimes. Their number, regrettably, continues to
dwindle against the onslaughts of authoritarianism. We are
among the fortunate few, able again to enjoy this right after
the ordeal of the past despotism. We must cherish and protect
it all the more now because it is like a prodigal son returning.
"That right is guaranteed in the following provisions of article
IV of the 1973 Constitution:
189
 "SEC. 3. 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 not be
violated, and no search warrant or warrant of arrest
shall issue except upon probable cause to be
determined by the judge, or such other responsible
officer as may be authorized by law, 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."
xxx xxx xxx
Only last year, the Court again issued this reminder in 20th Century Fox Film
Corporation v. Court of Appeals (164 SCR 650, 660-661 [1988]):
"This constitutional right protects a citizen against wanton
and unreasonable invasion of his privacy and liberty as to his
person, papers and effects. We have explained in the case of
People vs. Burgos (144 SCRA 1) citing Villanueva v.
Querubin (48 SCRA 345) why the right is so important:
"'It is deference to one's personality that lies at the core of this
right, but it could be also looked upon as a recognition of a
constitutionally protected area, primarily one's home, but not
necessarily thereto confined. (Cf. Hoffa v. United States, 385
US 293 [1966]) What is sought to be guarded is a man's
prerogative to choose who is allowed entry to his residence.
In that haven of refuge, his individuality can assert itself not
only in the choice of who shall be welcome but likewise in
the kind of objects he wants around him. There the state,
however powerful, does not as such have access except under
the circumstances above noted, for in the traditional
formulation, his house, however humble, is his castle. Thus is
outlawed any unwarranted intrusion by government, which is
called upon to refrain from any invasion of his dwelling and
to respect the privacies of his life. (Cf. Schmerber v.
California, 384 US 757 [1966], Brennan, J. and Boyd v.
United States, 116 630 [1886]). In the same vein, Landynski
in his authoritative work (Search and Seizure and the
Supreme Court [1966]), could fitly characterize constitutional
right as the embodiment of a 'spiritual concept: the belief that
to value the privacy of home and person and to afford its
constitutional protection against the long reach of government
is no less than to value human dignity, and that his privacy
must not be disturbed except in case of overriding social need,
and then only under stringent procedural safeguards.' (ibid, p.
74.)"
The decision of the United States Supreme Court in Rochin v. California, (342 US
165; 96 L. Ed. 183 [1952]) emphasizes clearly that police actions should not be
characterized by methods that offend a sense of justice. The court ruled:
"Applying these general considerations to the circumstances
of the present case, we are compelled to conclude that the
proceedings by which this conviction was obtained do more
than offend some fastidious squeamishness or private
sentimentalism about combatting crime too energetically.
This is conduct that shocks the conscience. Illegally breaking
into the privacy of the petitioner, the struggle to open his
mouth and remove what was there, the forcible extraction of
his stomach's contents this course of proceeding by agents
of government to obtain evidence is bound to offend even
hardened sensibilities. They are methods too close to the rack
and the screw to permit of constitutional differentiation."
It is significant that it is not the police action per se which is impermissible and
which should be prohibited. Rather, it is the procedure used or in the words of the
court, methods which "offend even hardened sensibilities." In Breithaupt v.
Abram (352 US 432, 1 L. Ed. 2nd 448 [1957]), the same court validated the use of
evidence, in this case blood samples involuntarily taken from the petitioner, where
there was nothing brutal or offensive in the taking. The Court stated:
"Basically the distinction rests on the fact that there is nothing
'brutal' or 'offensive' in the taking of a sample of blood when
done, as in this case, under the protective eye of a physician.
To be sure, the driver here was unconscious when the blood
was taken, but the absence of conscious consent, without
more, does not necessarily render the taking a violation of a
constitutional right; and certainly the rest was administered
here would not be considered offensive by even the most
delicate. Furthermore, due process is not measured by the
190
 yardstick of personal reaction or the sphygmogram of the
most sensitive person, but by that whole community sense of
'decency and fairness' that has been woven by common
experience into the fabric of acceptable conduct. . . . ."
The individual's right to immunity from such invasion of his body was considered
as "far outweighed by the value of its deterrent effect" on the evil sought to be
avoided by the police action. LexLib
It is clear, therefore, that the nature of the affirmative relief hinges closely on the
determination of the exact facts surrounding a particular case.
The violations of human rights alleged by the petitioners are serious. If an orderly
procedure ascertains their truth, not only a writ of prohibition but criminal
prosecutions would immediately issue as a matter of course. A persistent pattern
of wholesale and gross abuse of civil liberties, as alleged in the petition, has no
place in civilized society.
On the other hand, according to the respondents, the statements made by the
petitioners are a complete lie.
The Solicitor General argues:
"This is a complete lie.
Just the contrary, they had been conducted with due regard to
human rights. Not only that, they were intelligently and
carefully planned months ahead of the actual operation. They
were executed in coordination with barangay officials who
pleaded with their constituents to submit themselves
voluntarily for character and personal verification. Local and
foreign correspondents, who had joined these operations,
witnessed and recorded the events that transpired relative
thereto. (After Operation Reports: November 5, 1987, Annex
12; November 20, 1987, Annex 13; November 24, 1987,
Annex 14). That is why in all the drives so far conducted, the
alleged victims who numbered thousands had not themselves
complained.
"In her speech during turn-over rites on January 26, 1987 at
Camp Aguinaldo, President Aquino branded all accusations
of deliberate disregard for human rights as 'total lies.' Here are
excerpts from her strongest speech yet in support of the
military:
"'All accusations of a deliberate disregard
for human rights have been shown up to be total lies.
"' . . . To our soldiers, let me say go out and
fight, fight with every assurance that I will stand by
you through thick and thin to share the blame,
defend your actions, mourn the losses and enjoy with
you the final victory that I am certain will be ours.
"'You and I will see this through together.
"'I've sworn to defend and uphold the
Constitution.
"'We have wasted enough time answering
their barkings for it is still a long way to lasting
peace. . . . . The dangers and hardships to our men in
the field are great enough as it is without having
them distracted by this worthless carping at their
backs.
"'Our counter-insurgency policy remains the
same: economic development to pull out the roots
and military operations to slash the growth of the
insurgency.
"'The answer to terror is force now.
"'Only feats of arms can buy us the time
needed to make our economic and social initiatives
bear fruit. . . . . Now that the extreme Right has been
defeated, I expect greater vigor in the prosecution of
the war against the communist insurgency, even as
we continue to watch our backs against attacks from
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 the Right. (Philippine Star, January 27, 1988, p. 1,
Annex 15; emphasis ours.)'
"Viewed in the light of President Aquino's observation on the
matter, it can be said that petitioners misrepresent as human
nights violations the military and police zealous vigilance
over the people's right to live in peace and safety." (Rollo, pp.
36-38)
Herein lies the problem of the Court. We can only guess the truth. Everything
before us consists of allegations. According to the petitioners, more than 3,407
persons were arrested in the saturation drives covered by the petition. No
estimates are given for the drives in Block 34, Dagat-dagatan, Navotas; Apelo
Cruz Compound, Pasig; and Sun Valley Drive near the Manila International
Airport area. Not one of the several thousand persons treated in the illegal and
inhuman manner described by the petitioners appears as a petitioner or has come
before a trial court to present the kind of evidence admissible in courts of justice.
Moreover, there must have been tens of thousands of nearby residents who were
inconvenienced in addition to the several thousand allegedly arrested. None of
those arrested has apparently been charged and none of those affected has
apparently complained.
A particularly intriguing aspect of the Solicitor General's comments is the
statement that local and foreign correspondents actually joined the saturation
drives and witnessed and recorded the events. In other words, the activities sought
to be completely proscribed were in full view of media. The sight of hooded men
allegedly being used to fingerpoint suspected subversives would have been good
television copy. If true, this was probably effected away from the ubiquitous eye
of the TV cameras or, as the Solicitor General contends, the allegation is a
"complete lie." LLjur
The latest attempt to stage a coup d'etat where several thousand members of the
Armed Forces of the Philippines sought to overthrow the present Government
introduces another aspect of the problem and illustrates quite clearly why those
directly affected by human rights violations should be the ones to institute court
actions and why evidence of what actually transpired should first be developed
before petitions are filed with this Court.
Where there is large scale mutiny or actual rebellion, the police or military may go
in force to the combat areas, enter affected residences or buildings, round up
suspected rebels and otherwise quell the mutiny or rebellion without having to
secure search warrants and without violating the Bill of Rights. This is exactly
what happened in the White Plains Subdivision and the commercial center of
Makati during the first week of December, 1989.
The aerial target zonings in this petition were intended to flush out subversives
and criminal elements particularly because of the blatant assassinations of public
officers and police officials by elements supposedly coddled by the communities
where the "drives" were conducted.
It is clear from the pleadings of both petitioners and respondents, however, that
there was no rebellion or criminal activity similar to that of the attempted coup d'
etats. There appears to have been no impediment to securing search warrants or
warrants of arrest before any houses were searched or individuals roused from
sleep were arrested. There is no strong showing that the objectives sought to be
attained by the "areal zoning' could not be achieved even as the rights of squatter
and low income families are fully protected.
Where a violation of human rights specifically guaranteed by the Constitution is
involved, it is the duty of the court to stop the transgression and state where even
the awesome power of the state may not encroach upon the rights of the
individual.
It is the duty of the court to take remedial action even in cases such as the present
petition where the petitioners do not complain that they were victims of the police
actions, where no names of any of the thousands of alleged victims are given, and
where the prayer is a general one to stop all police "saturation drives," as long as
the Court is convinced that the event actually happened.
The Court believes it highly probable that some violations were actually
committed. This is so inspite of the alleged pleas of barangay officials for the
thousands of residents "to submit themselves voluntarily for character and
personal verification." We cannot imagine police actions of the magnitude
described in the petitions and admitted by the respondents, being undertaken
without some undisciplined soldiers and policemen committing certain abuses.
However, the remedy is not to stop all police actions, including the essential and
legitimate ones. We see nothing wrong in police making their presence visibly felt
in troubled areas. Police cannot respond to riots or violent demonstrations if they
do not move in sufficient numbers. A show of force is sometimes necessary as
long as the rights of people are protected and not violated. A blanket prohibition
such as that sought by the petitioners would limit all police actions to one on one
confrontations where search warrants and warrants of arrests against specific
individuals are easily procured. Anarchy may reign if the military and the police
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decide to sit down in their offices because all concerted drives where a show of
force is present are totally prohibited. LibLex
The remedy is not an original action for prohibition brought through a taxpayers'
suit. Where not one victim complains and not one violator is properly charged, the
problem is not initially for the Supreme Court. It is basically one for the executive
departments and for trial courts. Well meaning citizens with only second hand
knowledge of the events cannot keep on indiscriminately tossing problems of the
executive, the military, and the police to the Supreme Court as if we are the
repository of all remedies for all evils. The rules of constitutional litigation have
been evolved for an orderly procedure in the vindication of rights. They should be
followed. If our policy makers sustain the contention of the military and the police
that occasional saturation drives are essential to maintain the stability of
government and to insure peace and order, clear policy guidelines on the behavior
of soldiers and policemen must not only be evolved, they should also be enforced.
A method of pinpointing human rights abuses and identifying violators is
necessary.
Copies of this decision are likewise forwarded to the Commission on Human
Rights, the Secretary of Justice, the Secretary of National Defense, and the
Commanding General PC-INP for the drawing up and enforcement of clear
guidelines to govern police actions intended to abate riots and civil disturbances,
flush out criminal elements, and subdue terrorist activities.
In the meantime, the acts violative of human rights alleged by the petitioners as
committed during the police actions are ENJOINED until such time as permanent
rules to govern such actions are promulgated.
SO ORDERED.
Fernan, C.J., Narvasa, Melencio-Herrera, Paras, Feliciano, Gancayco, Bidin,
Cortes, Medialdea and Regalado, JJ., concur.
||| (Guazon v. De Villa, G.R. No. 80508, January 30, 1990)

The problem is appropriate for the Commission on Human Rights. A high level
conference should bring together the heads of the Department of Justice,
Department of National Defense and the operating heads of affected agencies and
institutions to devise procedures for the prevention of abuses.

Under the circumstances of this taxpayers' suit, there is no erring soldier or

policeman whom we can order prosecuted. In the absence of clear facts
ascertained through an orderly procedure, no permanent relief can be given at this
time. Further investigation of the petitioners' charges and a hard look by
administration officials at the policy implications of the prayed for blanket
prohibition are also warranted:

In the meantime and in the face of a prima facie showing that some abuses were
probably committed and could be committed during future police actions, we have
to temporarily restrain the alleged banging on walls, the kicking in of doors, the
herding of half-naked men to assembly areas for examination of tattoo marks, the
violation of residences even if these are humble shanties of squatters, and the
other alleged acts which are shocking to the conscience.

WHEREFORE, the petition is hereby REMANDED to the Regional Trial Courts

of Manila, Malabon, and Pasay City where the petitioners may present evidence
supporting their allegations and where specific erring parties may be pinpointed
and prosecuted.

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