A. Search and Seizures (Sec. 2, Art.

III)

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

i. Some scope of protection

ii. Some procedural rules
iii. Only judge may issue warrant
iv. Requisites for valid warrant of arrest
1. Placer v. Villanueva, 126 SCRA 463 (G.R. Nos. L-60349-62,
December 29,1983)
2. Soliven v. Makasiar, 167 SCRA 393 (G.R. Nos. 82585,
November 14, 1988)
3. Cruz v. Judge Pedro Areola, 428 Phil 373 (A.M. No. RTJ-
01-1642, March 6, 2002)
 1. Placer v. Villanueva, 126 SCRA 463 (G.R. Nos. L-60349-62,
December 29,1983)

SECOND DIVISION

[ G.R. Nos. 60349-62, December 29, 1983 ]

CITY FISCAL NESTORIO M. PLACER, ASST. CITY FISCALS AGELIO L.

BRINGAS, ERNESTO M. BROCOY, RAFAEL V. FLORES, FELIXBERTO L.
GUIRITAN, MACARIO B. BALANSAG AND ROSARITO F. DABALOS, ALL
OF BUTUAN CITY, AND THE PEOPLE OF THE PHILIPPINES,
PETITIONERS, VS. HON. JUDGE NAPOLEON D. VILLANUEVA, IN HIS
CAPACITY AS CITY JUDGE OF BUTUAN, RESPONDENT.

DECISION

ESCOLIN, J.:

The legal question raised in this petition is whether the certification of the
investigating fiscal in the information as to the existence of probable cause
obligates respondent City Judge to issue a warrant of arrest.

The antecedent facts are not disputed.  During the period from March 30
to April 14, 1982, petitioners, the City Fiscal of Butuan City and his
assistants filed in the City Court of Butuan the following informations, to wit:

CRIMINAL CAS TITLE
E NO.  

12209 People vs. Jimmy Tan Slight Phy. Inj.

12210 People vs. Carlito Fortun Violation of P.D.

1306

12211 People vs. Jarail Majini -do?

12212 People vs. Amelita Dy Violation of B.P. 22

12213 People vs. Angelito Dy -do?

12214 People vs. Jesus Aloyan Estafa

12215 People vs. Bebot Lauron Mal. Mischief

12216 People vs. Usurpation

Mariano Trani Antonio Monghit of authority

12217 People vs. Elorde Subingbing, Alarm & Scandal

Fernando Sagay

12218 People vs. Perla Trasga Grave oral

 defamation

12219 People vs. Renato Dayan Estafa

12220 People vs. Edgardo Dayan Estafa

12221 People vs. Benito Sy Ibañez Viol. of B.P. 22

12222 People vs. Benito Sy Ibañez -do?

These informations, except the last four, docketed as Criminal Cases Nos.

12219, 12220, 12221 and 12222, were certified to by the respective
investigating fiscals as follows:  "that a preliminary examination has been
conducted by me in this case, having examined the complainant and his
witnesses; that on the basis of the sworn statements and other evidence
submitted before this Office, there is reasonable ground to believe that the
crime charged has been committed and that herein accused is probably
guilty thereof." The informations in Criminal Cases Nos. 12219 and 12220
bore the certification of 3rd Assistant Fiscal Felixberto Guiritan "that I am
filing this information upon directive of the Minister of Justice, who upon
review of the resolution of the undersigned investigating fiscal has
found prima facie case against herein accused",[1] while the informations in
Criminal Cases Nos. 12221 and 12222 were certified to by 2nd Assistant
Fiscal Ernesto M. Brocoy in this wise:  "I am filing this information upon
directive of the City Fiscal pursuant to the provisions of P.D. No. 911, who,
upon review of the resolution of the investigating fiscal now on temporary
detail with the office of the Provincial Fiscal of Surigao del Sur, has
found prima facie case against the herein accused."[2]

Following receipt of said informations, respondent judge issued an order

setting on April 5, 1982 the hearing of said criminal cases for the purpose of
determining the propriety of issuing the corresponding warrants of
arrest.  After said hearing, respondent issued the questioned orders dated
April 13, 15, 16 and 19, 1982, requiring petitioners to submit to the court
the affidavits of the prosecution witnesses and other documentary evidence
in support of the informations to aid him in the exercise of his power of
judicial review of the findings of probable cause by petitioners. [3]

Petitioners filed two separate motions for reconsideration of said orders,

contending that under P.D. Nos. 77 and 911, they are authorized to
determine the existence of a probable cause in a preliminary
examination/investigation, and that their findings as to the existence thereof
constitute sufficient basis for the issuance of warrants of arrest by the court.
[4]
 On April 28, 1982, respondent judge denied said motions and reiterated
his order to petitioners to submit the supporting affidavits and other
documents within five (5) days from notice.[5]

Hence, petitioners filed this petition for certiorari and mandamus to set aside

the aforesaid orders and to compel respondent to issue the warrants of
arrest in Criminal Cases Nos. 12209-12222.

Meanwhile, the respondent, in addition to his duties as presiding judge of

Branch I of the City Court of Butuan, was also assigned to preside over
Branch II of said court, as Judge Jesus Ruiz, presiding judge of said sala,
had retired from the service.  The informations filed by petitioners in Branch
II likewise remained dormant because of respondent's firm refusal to issue
the corresponding warrants of arrest for want of affidavits of the
witnesses.  Thus, as disclosed by petitioner's urgent motion, [6] no warrants
had been issued in 113 informations as of July 15, 1982.

On July 12, 1982, respondent judge received Our May 19, 1982 Resolution

requiring him to comment on the petition.  However, interpreting the same
as a denial of the petition itself, respondent issued on the following day, July
13, an Omnibus Order directing petitioners to submit immediately the
supporting affidavits and other evidence in Criminal Cases Nos. 12209-
12222.  Having failed to secure a reconsideration of said Omnibus Order,
petitioners finally submitted the required affidavits and documents on July
15, 1982 in order to avoid further delay in the prosecution of these cases.

This move on the part of the petitioners would have rendered the instant
petition moot and academic.  But while respondent gave due course to some
of said cases either by issuing the warrants of arrest or taking some other
appropriate action,[7] he refused to issue the warrants in Criminal Cases Nos.
12417, 12418, 12419, 12420 and 12422, and instead ordered the records
thereof remanded to the City Fiscal "for further preliminary investigation or
reinvestigation," for on the bases of said affidavits, respondent found
no prima facie case against the accused.

Petitioners therefore filed a motion with this Court to restrain respondent

from enforcing the orders subject of the main petition and to compel him to
accept, and take cognizance of, all the informations filed in his court.  They
contend that the fiscal's certification in the information of the existence of
probable cause constitutes sufficient justification for the judge to issue a
warrant of arrest; and that such certification binds the judge, it being
supported by the presumption that the investigating fiscal had performed his
duties regularly and completely.

Upon the other hand, respondent justifies his order as an exercise of his
judicial power to review the fiscal's findings of probable cause.  He further
maintains that the failure of petitioners to file the required affidavits
destroys the presumption of regularity in the performance of petitioners'
official duties, particularly in the light of the long standing practice of the
Office of the City Fiscal of Butuan of attaching to the informations filed with
the court the affidavits of prosecution witnesses and other documentary
evidence presented during the preliminary investigation.

The issue to be resolved is whether or not the respondent city judge may,
for the purpose of issuing a warrant of arrest, compel the fiscal to submit to
the court the supporting affidavits and other documentary evidence
presented during the preliminary investigation.

We sustain the position of respondent judge.

The primary requirement for the issuance of a warrant of arrest is the

existence of probable cause.  Section 3, Article IV of the 1973 Constitution
provides that -

"x x x 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 recognized by law, after examination under oath
or affirmance of the complainant and the witnesses he may produce x x x."

P.D. No. 911 authorizes the fiscal or state prosecutor to determine the
existence of probable cause.  Thus,

"If on the basis of complainant's sworn statements and documents

submitted, the investigating fiscal or state prosecutor finds no probable
cause to conduct a preliminary investigation, he shall dismiss the case.  If
probable cause is established by complainant's evidence, he shall notify the
respondent by issuing a subpoena x x x.  (Sec. 1 [b], RA 5180, as amended
by P.D. Nos. 77 and 911).

"The fiscal or state prosecutor shall certify under oath in the information to
be filed by him that he has examined the complainant and his witnesses;
that on the basis of the sworn statements and other evidence submitted
before him there is reasonable ground to believe that a crime has been
committed and that the accused is probably guilty thereof, x x x" (Sec. 1
[d], id.).

There is thus no dispute that the judge may rely upon

the fiscal's certification of the existence of probable cause and, on the basis
thereof, issue a warrant of arrest.  But does such certification bind the judge
to come out with the warrant?  We answer this query in the negative.  The
issuance of a warrant is not a mere ministerial function; it calls for the
exercise of judicial discretion on the part of the issuing magistrate.  This is
clear from the following provisions of Section 6, Rule 112 of the Rules of
Court:

"Warrant of arrest, when issued. - If the judge be satisfied from the

preliminary examination conducted by him or by the investigating officer
that the offense complained of has been committed and that there is
reasonable ground to believe that the accused has committed it, he must
issue a warrant or order for his arrest."

Under this section, the judge must satisfy himself of the existence of
probable cause before issuing a warrant or order of arrest.  If on the face of
the information the judge finds no probable cause, he may disregard
the fiscal's certification and require the submission of the affidavits of
witnesses to aid him in arriving at a conclusion as to the existence of a
probable cause.  This has been the rule
since U.S. vs. Ocampo[8] and Amarga vs. Abbas[9].  And this evidently is the
reason for the issuance by respondent of the questioned orders of April 13,
15, 16, 19, 1982 and July 13, 1982.  Without the affidavits of the
prosecution witnesses and other evidence which, as a matter of long-
standing practice had been attached to the informations filed in his sala,
respondent found the informations inadequate bases for the determination
of probable cause.  For as the ensuing events would show, after petitioners
had submitted the required affidavits, respondent wasted no time in issuing
the warrants of arrest in the cases where he was satisfied that probable
cause existed.
Germane to the issue at hand is the Rule on Summary Procedure in Special
Cases[10] applicable to the following, to wit:

"I.    B. Criminal Cases:

(1.)   Violation of traffic laws, rules and regulations;

(2)    Violations of the rental laws;

(3)    Violations of municipal or city ordinances;

(4)    All other criminal cases where the penalty prescribed by law

for the offense charged does not exceed six (6) months
imprisonment, or a fine of One Thousand Pesos [P1,000.00],
or both, irrespective of other imposable penalties, accessory
or otherwise, or of the civil liability arising therefrom;
Provided, however, that in offenses involving damage to
property through reckless negligence, this Rule shall govern
where the imposable fine does not exceed Ten Thousand
Pesos [P10,000.00]."

In said cases, the filing of the affidavits of witnesses with the court is
mandatory.  Section 9, par. 2 of said Rule prescribes that "the complaint or
information must be accompanied by the affidavits of the complainant and of
his witnesses in such number of copies as there are defendants plus two (2)
copies for the court's files."

Section 10 of the Summary Rule provides:

"On the basis of the complaint or information and the affidavits

accompanying the same, the court shall make a preliminary determination
whether to dismiss the case outright for being patently without basis or
merit, or to require further proceedings to be taken.  In the latter case, the
court may set the case for immediate arraignment of an accused under
custody, and if he pleads guilty, may render judgment forthwith.  If he
pleads not guilty, and in all other cases, the court shall issue an order,
accompanied by copies of all the affidavits submitted by the complainant,
directing the defendant(s) to appear and submit his counter-affidavit and
those of his witnesses at a specified date not later than ten (10) days from
receipt thereof.

"Failure on the part of the defendant to appear whenever required, shall

cause the issuance of a warrant for his arrest if the court shall find that a
probable cause exists after an examination in writing and under oath or
affirmation of the complainant and his witnesses.

The obvious purpose of requiring the submission of affidavits of the

complainant and of his witnesses is to enable the court to determine whether
to dismiss the case outright or to require further proceedings.

One last point.  It appears that after petitioners had submitted the required
affidavits of witnesses, the respondent judge ordered Criminal Cases Nos.
12417, 12418, 12419, 12420 and 12420 remanded to the City Fiscal for
further preliminary investigation or reinvestigation.  We hold that respondent
did not abuse his discretion in doing so.  From the informations and
affidavits presented to him, he found the charges patently without basis or
merit.  For respondent to issue the warrants of arrest and try the accused
would only expose the latter to unnecessary harrassment, anxiety and
expense.  And as already pointed out, under the Rule on Summary
Procedure in Special Cases, the respondent judge has the power to order the
outright dismissal of the charge if, from the information and the affidavits
attached thereto, he finds the same to be patently without basis or merit.

WHEREFORE, the petition is hereby dismissed.  No costs.

SO ORDERED.

Makasiar (Chairman), Concepcion, Jr., Guerrero, Abad Santos, and De

Castro, JJ., concur.
Aquino, J., no part.

[1]
 Annexes K and L, pp. 33-34, 35-36, Rollo.
[2]
 Annexes M and N, pp. 38-40, Rollo.
[3]
 Annexes 2, AA, BB and CC, pp. 69-74, Rollo.
[4]
 Annexes DD and EE, pp. 75-77, Rollo.
[5]
 Annexes FF, p. 82, Rollo.
[6]
 Dated July 15, 1982, p. 103, Rollo.
[7]
 Certification of the Clerk of Court dated August 20, 1982, p. 136, Rollo.
[8]
 18 Phil. 1.
[9]
 98 Phil. 739.
[10]
 This Summary Rule took effect on August 1, 1983.

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Supreme Court E-Library

2. Soliven v. Makasiar, 167 SCRA 393 (G.R. Nos. 82585, November

14, 1988)

249 Phil. 394

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 ORDONEZ,
UNDER SECRETARY OF JUSTICE SILVESTRE BELLO HI, THE CITY
FISCAL OF MANILA JESUS F. GUERRERO, AND JUDGE RAMON P.
MAKASIAR, PRESIDING JUDGE OF BRANCH 35 OF THE REGIONAL
TRIAL COURT, AT MANILA, RESPONDENTS.

DECISION

PER CURIAM:

In these consolidated cases, three principal issues were raised: (1) whether
or not petitioners were denied due process when informations for libel were
filed against them although the finding of the existence of a prima 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) 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 Proceedings Closed," in effect waiving his right to refute the
complaint by filing counter-affidavits. Due process of law does not require
that the respondent in a criminal case actually file his counter-affidavits
before the preliminary investigation is deemed completed.

All that is required is that the respondent be given the opportunity to submit
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 in his determination
of probable cause for the issuance of warrants of arrest. This is not an
accurate interpretation.

What the Constitution underscores is the exclusive and personal

responsibility of the issuing judge to satisfy himself of the existence of
probable cause. In satisfying himself of the existence of probable cause for
the issuance of a warrant of arrest, the judge is not required to personally
examine the complainant and his witnesses. Following established doctrine
and procedure, he shall: (1) personally evaluate the report and the
supporting documents submitted by the fiscal regarding the existence of
probable cause and, on the basis thereof, issue a warrant of arrest; or (2) if
on the basis thereof he finds no probable cause, he may disregard the
fiscal's report and require the submission of supporting affidavits of
witnesses to aid him in arriving at a conclusion as to the existence of
probable cause.

Sound policy dictates this procedure, otherwise judges would e Unttoly laden
with the preliminary examination and investigation of criminal complaints
instead of concentrating on hearing and deciding cases filed before their
courts.
On June 30, 1987, the Supreme Court unanimously adopted Circular No. 12,
setting down guidelines for the issuance of warrants of arrest. The procedure
therein provided is reiterated and clarified in this resolution.

It has not been shown that respondent judge has deviated from the
prescribed procedure. Thus, with regard to the issuance of the warrants of
arrest, a finding of grave abuse of discretion amounting to lack or excess of
jurisdiction cannot be sustained.

Anent the third issue, petitioner Beltran argues that "the reasons which
necessitate presidential immunity from suit impose a correlative disability to
file suit." He contends that if criminal proceedings ensue by virtue of the
President's filing of her complaint-affidavit, she may subsequently have to be
a witness for the prosecution, bringing her under the trial court's jurisdiction.
This, continues Beltran, would in an indirect way defeat her privilege of
immunity from suit, as by testifying on the witness stand, she would be
exposing herself to possible contempt of court or perjury.

The rationale for the grant to the President of the privilege of immunity from
suit is to assure the exercise of Presidential duties and functions free from
any hindrance or distraction, considering that being the Chief Executive of
the Government is a job that, aside from requiring all of the office-holder's
time, also demands undivided attention.

But this privilege of immunity from suit, pertains to the President by virtue
of the office and may be invoked only by the holder of the office; not by any
other person in the President's behalf. Thus, an accused in a criminal case in
which the President is complainant cannot raise the presidential privilege as
a defense to prevent the case from proceeding against such accused.

Moreover, there is nothing in our laws that would prevent the President from
waiving the privilege. Thus, if so minded the President may shed the
protection afforded by the privilege and submit to the court's jurisdiction.
The choice of whether to exercise the privilege or to waive it is solely the
President's prerogative. It is a decision that cannot be assumed and imposed
by any other person.

As regards the contention of petitioner Beltran that he could not be held

liable for libel because of the privileged character of the publication, the
Court reiterates that it is not a trier of facts and that such a defense is best
left to the trial court to appreciate after receiving the evidence of the parties.

As to petitioner Beltran's claim that to allow the libel case to proceed would
produce a "chilling effect" on press freedom, the Court finds no basis at this
stage to rule on the point.

The petitions fail to establish that public respondents, through their separate
acts, gravely abused their discretion as to amount to lack of jurisdiction.
Hence, the writs of certiorari and prohibition prayed for cannot issue.

WHEREFORE, finding no grave abuse of discretion amounting to excess or

lack of jurisdiction on the part of the public respondents, the Court Resolved
to DISMISS the petitions in G. R. Nos. 82585, 82827 and 83979. The Order
to maintain the status quo contained in the Resolution of the Court en bane
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, Grino-Aquino, Medialdea, and Regalado,
JJ., concur.

Gutierrez, Jr., J., please see separate opinion

SEPARATE OPINION

GUTIERREZ, JR., J.,

I concur with the majority opinion insofar as it resolves 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 Paño (134 SCRA 438

[1985]), the Court should not hesitate to quash a criminal prosecution in the
interest of more enlightened and substantial justice where it is not alone the
criminal liability of an accused in a seemingly minor libel case which is
involved but broader considerations of governmental power versus a
preferred freedom.

We have in these four petitions the unusual situation where the highest
official of the Republic and one who enjoys unprecedented public support
asks for the prosecution of a newspaper columnist, the publisher and
chairman of the editorial board, the managing editor, and the business
manager in a not too indubitable a case for alleged libel.

I am fully in accord with an all out prosecution if the effect will be limited to
punishing a newspaperman who, instead of observing accuracy and fairness,
engages in unwarranted personal attacks, irresponsible twisting of facts, or
malicious distortions of half-truths which tend to cause dishonor, discredit,
or contempt of the complainant. However, this case is not a simple
prosecution for libel. We have as complainant a powerful and popular
President who heads the investigation and prosecution service and appoints
members of appellate courts but who feels so terribly maligned that she has
taken the unorthodox step of going to court inspite of the invocations of
freedom of the press which would inevitably follow.

I believe that this Court should have acted on this issue now instead of
leaving the matter to fiscals and defense lawyers to argue before a trial
judge.
There is always bound to be harassment inherent in any criminal
prosecution. Where the harassment goes beyond the usual difficulties
encountered by any accused and results in an unwillingness of media to
freely criticize government or to question government handling of sensitive
issues and public affairs, this Court and not a lower tribunal should draw the
demarcation line.

As early as March 8, 1918, the decision in United States v. Bustos (37 Phil.

731) stated that "(c)omplete liberty to comment on the conduct of public
men is a scalpel in the case of free speech. The sharp incision of its probe
relieves the abscesses of officialdom. Men in public life may suffer under a
hostile and unjust accusation; the wound can be assuaged with the balm of
a clear conscience." The Court pointed out that while defamation is not
authorized, criticism is to be expected and should be borne for the common
good.

In People v. Perfecto (43 Phil. 887 [1922]), the Court stated:

xxx   xxx   xxx

"x x x 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 (76SCRA448 [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 tor 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 potently inhibiting
factor on the willingness of newspapermen, especially editors and
publishers-to courageously perform their critical role in society. t> 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
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 risks 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 counsels is good
ones. Believing in the power of reason as applied through public discussion,
they eschewed silence coerced by law — the argument of force n its worst
form x x x. 

"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, x x x. " (at pp. 700-701)

Shunting aside the individual liability of Mr. Luis Beltran, is there a prima
facie showing that Messrs. Maximo Soliven, Antonio V. Roces, Frederick K.
Agcaoili, and Godofredo L. Manzanas knowingly participated in a wilful
purveying of falsehood? Considering the free speech aspects of these
petitions, should not a differentiated approach to their particular liabilities be
taken instead of lumping up everybody with the offending columnist? I
realize that the law includes publishers and editors but perhaps the "chilling
effect" issue applies with singular effectivity to publishers and editors vis-a-
vis newspaper columnists. There is no question that, ordinarily, libel is not
protected by the free speech clause but we have to understand that some
provocative words, which if taken literally may appear to shame or disparage
a public figure, may really be intended to provoke debate on public issues
when uttered or written by a media personality. Will not a criminal
prosecution in the type of case now before us dampen the vigor and limit the
variety of public debate? There are many other questions arising from this
unusual case which have not been considered.

I, of course, concur with the Court's opinion because it has decided to limit
the issues to narrowly drawn ones. I see no reason to disagree with the way
the Court has resolved them. The first issue on prematurity is moot. The
second issue discusses a procedure now embodied in the recently amended
Rules of Court on how a Judge should proceed before he issues a warrant of
arrest. Anent the third issue, considerations of public policy dictate that an
incumbent President should not be sued. At the same time, the President
cannot stand by helplessly bereft of legal remedies if somebody vilifies or
maligns him or her.

The Court has decided to deter the "chilling effect" issue for a later day. To
this, I take exception. I know that most of our tiscals 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 issues involving
government power and freedom of expression.

However, since we have decided to defer the "chilling effect" issue for a later
day, I limit myself to reiterating the dissenting words of Mr. Justice Jackson
in the American case of Beaurnhais v. Illinois (343 U. S. 250) when he said: 

"If one can claim to announce the judgment of legal history on any subject,
it is that criminal libel laws are consistent with the concept of ordered liberty
only when applied with safeguards evolved to prevent their invasion of
freedom of expression."

In the trial of the libel case against the petitioners, the safeguards in the
name of freedom of expression should be faithfully applied.

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3. Cruz v. Judge Pedro Areola, 428 Phil. 373

FIRST DIVISION

[ A.M. No. RTJ-01-1642 (formerly OCA IPI No. 00-921-RTJ), March

06, 2002 ]

P/SUPT. SEVERINO CRUZ AND FRANCISCO MONEDERO,

COMPLAINANTS, VS. JUDGE PEDRO M. AREOLA AND BRANCH CLERK
 OF COURT JANICE YULO-ANTERO, RESPONDENTS.

DECISION

PUNO, J.:

This is an administrative complaint filed by P/Supt. Severino Cruz and

Francisco Monedero against Judge Pedro M. Areola of Regional Trial Court,
Branch 85, Quezon City and his Branch Clerk of Court for Ignorance of the
Law relative to Criminal Case No. Q-99-80446 entitled “People of the
Philippines vs. Marilyn A. Carreon” for Estafa pending before the sala of the
respondent Judge.

The records show that on November 26, 1998, the Evaluation and
Preliminary Investigation Bureau of the Office of the Ombudsman issued a
Resolution[1] recommending the filing of an Information for Estafa as defined
and penalized under Art. 315, par.1(b) of the Revised Penal Code against
Marilyn Carreon, an employee of the Land Transportation Office based on
the complaint filed by herein complainants. Upon the filing of the
Information, the case was docketed  as Criminal Case No. Q-99-80446 and
was raffled to Branch 85.

On January 19, 1999, accused Marilyn Carreon filed with the trial court an
Urgent Motion for Reinvestigation. In his Order dated January 25, 1999, the
respondent Judge considered the said motion a mere scrap of paper for non-
compliance with Sections 4 and 5, Rule 15 of the 1997 Rules of Civil
Procedure. On the same date, a Warrant of Arrest was issued by the
respondent Judge and released by respondent Branch Clerk of Court.

On February 10, 1999, respondent Judge issued another Order deferring the
implementation of the Warrant of Arrest against the accused pending the
resolution of her Motion for Reinvestigation. On June 16, 1999, respondent
Judge granted Carreon’s Motion for Reconsideration and directed the Branch
Trial Prosecutor to conduct a reinvestigation of the case. [2]

The Office of the City Prosecutor issued a Resolution finding no cogent

reason to reverse, modify, or alter the resolution of the Office of the
Ombudsman and recommended that the case be set for trial.

On September 20, 1999, Carreon filed an Urgent Ex-Parte Motion to

Suspend Proceedings and to Hold in Abeyance the Issuance of Warrant of
Arrest as she intended to file a Motion for Reconsideration of the Resolution
of the Reinvestigation or a petition for review before the Secretary of Justice.
In his Order dated September 27, 1999, respondent Judge granted Carreon's
motion and suspended further proceedings in the said case. [3]

On the basis of the foregoing Orders issued by the respondent Judge,

complainants filed the instant complaint[4] charging both respondent Judge
and his Branch Clerk of Court with ignorance of the law.

In their Joint Comment,[5] respondent Judge manifests that the issuance of a

warrant of arrest is not a ministerial function of a judge as he is mandated to
determine the existence of probable cause before issuing a warrant.
Respondent Branch Clerk of Court, on the other hand, claims that it is a
ministerial duty on her part to release duly signed orders, resolutions and
decisions of the presiding judge of her branch.

The sole issue in this case is whether or not the orders of respondent Judge
and the release thereof by respondent Branch Clerk of Court constitute
ignorance of the law.

On August 6, 2001, we referred the administrative complaint to Justice

Romeo A. Brawner of the Court of Appeals for investigation, report and
recommendation.[6]

In compliance with the Court's Resolution, Justice Brawner submitted his

Report and Recommendation dated February 5, 2002. In recommending the 
dismissal of the complaint against the respondents, Justice Brawner
elucidates, thus:
“Complainants take issue of the fact that although respondent Judge already
issued a warrant of arrest, he still deferred its implementation to give way to
a reinvestigation of the case on motion of the accused.

Moreover, complainants argued, the Office of the City Prosecutor already

resolved the issue of the existence of probable cause against the accused
three times but respondent Judge still suspended the proceedings pending
the petition for review filed by the accused.

It must be stressed that the 1987 Constitution requires the judge to

determine probable cause ‘personally,’ making it the exclusive and personal
responsibility of the issuing judge to satisfy himself of the existence of
probable cause. In satisfying himself of the existence of probable cause for
the issuance of a warrant of arrest, the judge is not required to personally
examine the complainant and his witnesses. Following established doctrine
and procedure, he shall: (1) personally evaluate the report and the
supporting documents submitted by the fiscal regarding the existence of
probable cause and, on the basis thereof, issue a warrant of arrest; or (2) if
on the basis thereof he finds no probable cause, he may disregard the
prosecutor’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 (Mayor Abdula vs. Judge Guiani, G.R. No. 118821, February
18, 2000, 326 SCRA 1).

What complainants believe is that there is no longer any reason why the
respondent Judge should withhold the issuance of a warrant of arrest
considering that the Office of the City Prosecutor already made a finding that
there exists probable cause to indict the accused.

The determination of probable cause by the prosecutor is for a purpose

different from that which is to be made by the judge. Whether there is
reasonable ground to believe that the accused is guilty of the offense
charged and should be held for trial is what the prosecutor passes upon. The
judge, on the other hand,  determines whether a warrant of arrest should be
issued against the accused, i.e., whether there is a necessity for placing him
under immediate custody in order not to frustrate the ends of justice. Thus,
even if both should base their findings on one and the same proceeding or
evidence, there should be no confusion as to their distinct objectives.

Second, since their objectives are different, the judge cannot rely solely on
the report of the prosecutor in finding probable cause to justify the issuance
of a warrant of arrest. Obviously and understandably, the contents of the
prosecutor's report will support his own conclusion that there is reason to
charge the accused for an offense and hold him for trial. However, the judge
must decide independently. Hence, he must have supporting evidence, other
than the prosecutor's bare report, upon which to legally sustain his own
findings on the existence (or nonexistence) of probable cause to issue an
arrest order. This responsibility of determining personally and independently
the existence or nonexistence of probable cause is lodged in him by no less
than the most basic law of the land.

Although the prosecutor enjoys the legal presumption of regularity in the

performance of his official duties, which in turn gives his report the
presumption of accuracy, nothing less than the fundamental law of the land
commands the judge to personally determine probable cause in the issuance
of warrants of arrest. A judge fails in this constitutionally mandated duty if
he relies merely on the certification or report of the investigating officer
(Mayor Abdula vs. Judge Guiani, supra).

As it could not be determined beforehand how cursory or exhaustive a

judge's examination of the records should be, the extent of his examination
depends on the exercise of his sound discretion as the circumstances of the
case require.

In the case at bar, the fact that the respondent Judge ordered the re-
investigation of the case does not in any way make him liable for ignorance
of the law. In the exercise of his discretion, he believed that a re-
investigation was called for and thus held in abeyance the implementation of
the warrant of arrest. There is no showing that he abused such discretion as
it was part of the performance of his duty under the Constitution and he
could not be faulted for it. Much more could we find fault with respondent
Branch Clerk of Court who acts under the direction of the presiding Judge
and whose only role in this complaint charged against her was to release the
duly signed orders of the respondent Judge.”[7]
We agree with the findings and recommendation of the investigating Justice.

The 1987 Constitution provides that no 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.[8] In numerous instances,[9] this Court had ruled that:
“x x x Judges and Prosecutors alike should distinguish the preliminary
inquiry which determines probable cause for the issuance of a warrant of
arrest from the preliminary investigation proper which ascertains whether
the offender should be held for trial or released... The determination of
probable cause for the warrant of arrest is made by the judge. The
preliminary investigation proper-whether or not there is reasonable ground
to believe that the accused is guilty of the offense charged and, therefore,
whether or not he should be subjected to the expense, rigors and
embarrassment of trial-is the function of the Prosecutor.

x x x       x x x       x x x

We reiterate that preliminary investigation should be distinguished as to

whether it is an investigation for the determination of a sufficient ground for
the filing of the information or it is an investigation for the determination of
a probable cause for the issuance of a warrant of arrest. The first kind of
preliminary investigation is executive in nature. It is part of the prosecution's
job. The second kind of preliminary investigation which is more properly
called preliminary examination is judicial in nature and is lodged with the
judge.”[10]
In making the required personal determination, a judge is not precluded
from relying on the evidence earlier gathered by responsible officers. The
extent of the reliance depends on the circumstances of each case and is
subject to the judge's sound discretion. [11]

The arrest of the accused can be ordered only in the event the prosecutor
files the case and the judge of the Regional Trial Court finds probable cause
for the issuance of a warrant of arrest. It is not obligatory, but merely
discretionary, upon the investigating judge to issue a warrant for the arrest
of the accused, even after having personally examined the complainant and
his witnesses in the form of searching questions and answers, for the
determination of whether a probable cause exists and whether it is
necessary to arrest the accused in order not to frustrate the ends of
justice, is left to his sound judgment or discretion. [12]

It appears from the records that the challenged Orders issued by the
respondent Judge were not at all baseless. The respondent Judge merely
exercised his sound discretion in not immediately issuing the warrant of
arrest and in suspending further proceedings pending reinvestigation of the
case. On her part, respondent Branch Clerk of Court cannot be faulted for
performing a ministerial function, that is, releasing Orders duly signed by the
respondent Judge.

IN VIEW WHEREOF, the administrative complaint against respondents

Judge Pedro M. Areola and Branch Clerk of Court Janice Yulo-Antero is
DISMISSED for lack of merit.

SO ORDERED.

Davide, Jr., C.J., (Chairman), Kapunan, and Ynares-Santiago, JJ., concur.

[1]
Rollo, pp. 15-17.

[2]
Id., p. 33.

[3]
Id., p. 39.
[4]
Id., pp. 1-4.

[5]
Id., pp. 92-93.

[6]
Id., p. 106.

[7]
Report and Recommendation, pp. 4-8.

[8]
Sec. 2, Art. III.

[9]
Ho vs. People, 280 SCRA 365 (1997); Gozos vs. Tac-an, 300 SCRA 265
(1998); People vs. CA, 301 SCRA 475 (1999).

[10]
People vs. Inting, 187 SCRA 788 (1990), pp. 792-794.

[11]
Lim, Sr. vs. Felix, 194 SCRA 292 (1991).

[12]
Flores vs. Sumaljag, 290 SCRA 568 (1998); Samulde vs. Salvani, Jr., 165
SCRA 734 (1988).

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V. Requisites of a valid warrant of arrest

1. Sec. 4, Rule 126, Rules of Court

Sec. 4 Requisites for issuing search warrant. – 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.

2. Burgos v. Chief of Staff, 133 SCRA 800 (G.R. Nos. L-64261, Dec. 26,
1984)

3. Pangandaman v. Casar, 159 SCRA 599 (G.R. Nos. 71782, April 14,
1988)

4. Kho v. Judge Makalintal, 365 Phil 511 (G.R. Nos. 94902-06, April 21,
1999)

5. People v. Salanguit, 408 Phil. 817, (G.R. Nos. 133254-55, April 19,
2001)

6. Paper Industries Corp. v. Asuncion, 307 SCRA 253

3. Burgos v. Chief of Staff, 133 SCRA 800 (G.R. Nos. L-64261, Dec.
26, 1984)

218 Phil. 754

 EN BANC

[ G.R. No. L-64261, December 26, 1984 ]

JOSE BURGOS, SR., JOSE BURGOS, JR., BAYANI SORIANO AND

J.BURGOS MEDIA SERVICES, INC., PETITIONERS, VS. THE CHIEF OF
STAFF, ARMED FORCES OF THE PHILIPPINES, THE CHIEF
PHILIPPINE CONSTABULARY, THE CHIEF LEGAL OFFICER,
PRESIDENTIAL SECURITY COMMAND, THE JUDGE ADVOCATE
GENERAL, ET AL., RESPONDENTS.

DECISION

ESCOLIN, J.:

Assailed in this petition for certiorari, prohibition and mandamus with

preliminary mandatory and prohibitory injunction is the validity of two[2]
search warrants issued on December 7, 1982 by respondent Judge Ernani
Cruz-Pano, Executive Judge of the then Court of First Instance of Rizal
[Quezon City], under which the premises known as No. 19, Road 3, Project
6, Quezon City, and 784 Units C & D, RMS Building, Quezon Avenue, Quezon
City, business addresses of the "Metropolitan Mail" and "We Forum"
newspapers, respectively, were searched, and office and printing machines,
equipment, paraphernalia, motor vehicles and other articles used in the
printing, publication and distribution of the said newspapers, as well as
numerous papers, documents, books and other written literature alleged to
be in the possession and control of petitioner Jose Burgos, Jr. publisher-
editor of the "We Forum" newspaper, were seized. 

Petitioners further pray that a writ of preliminary mandatory and prohibitory

injunction be issued for the return of the seized articles, and that
respondents, "particularly the Chief Legal Officer, Presidential Security
Command, the Judge Advocate General, AFP, the City Fiscal of Quezon City,
their representatives, assistants, subalterns, subordinates, substitute or
successors" be enjoined from using the articles thus seized as evidence
against petitioner Jose Burgos, Jr. and the other accused in Criminal Case
No. Q-022782 of the Regional Trial Court of Quezon City, entitled
"People vs. Jose Burgos, Jr. et al."[1] 

In our Resolution dated June 21, 1983, respondents were required to answer
the petition. The plea for preliminary mandatory and prohibitory injunction
was set for hearing on June 28, 1983, later reset to July 7, 1983, on motion
of the Solicitor General in behalf of respondents. 

At the hearing on July 7, 1983, the Solicitor General, while opposing

petitioners' prayer for a writ of preliminary mandatory injunction, manifested
that respondents "will not use the aforementioned articles as evidence in the
aforementioned case until final resolution of the legality of the seizure of the
aforementioned articles, x x x." [2]   With this manifestation, the prayer for
preliminary prohibitory injunction was rendered moot and academic. 
Respondents would have this Court dismiss the petition on the ground that
petitioners had come to this Court without having previously sought the
quashal of the search warrants before respondent judge. Indeed, petitioners,
before impugning the validity of the warrants before this Court, should have
filed a motion to quash said warrants in the court that issued them. [3]  But
this procedural flaw notwithstanding, we take cognizance of this petition in
view of the seriousness and urgency of the constitutional issues raised, not
to mention the public interest generated by the search of the "We Forum"
offices, which was televised in Channel 7 and widely publicized in all
metropolitan dailies. The existence of this special circumstance justifies this
Court to exercise its inherent power to suspend its rules. In the words of the
revered Mr. Justice Abad Santos in the case of C. Vda. de Ordoveza vs.
Raymundo, [4] "it is always in the power of the court [Supreme Court] to
suspend its rules or to except a particular case from its operation, whenever
the purposes of justice require it x x x." 

Respondents likewise urge dismissal of the petition on ground of laches.

Considerable stress is laid on the fact that while said search warrants were
issued on December 7, 1982, the instant petition impugning the same was
filed only on June 16, 1983 or after the lapse of a period of more than
six[6]   months. 

Laches is failure or negligence for an unreasonable and unexplained length

of time to do that which, by exercising due diligence, could or should have
been done earlier. It is negligence or omission to assert a right within a
reasonable time, warranting a presumption that the party entitled to assert
it either has abandoned it or declined to assert it. [5] 

Petitioners, in their Consolidated Reply, explained the reason for the delay in
the filing of the petition thus:

"Respondents should not find fault, as they now do [p. 1, Answer, p. 3,

Manifestation] with the fact that the Petition was filed on June 16, 1983,
more than half a year after the petitioners' premises had been raided. 

"The climate of the times has given petitioners no other choice. If they had
waited this long to bring their case to court, it was because they tried at first
to exhaust other remedies. The events of the past eleven[11] years had
taught them that everything in this country, from release of public funds to
release of detained persons from custody, has become a matter of executive
benevolence or largesse. 

"Hence, as soon as they could, petitioners, upon suggestion of persons close

to the President, like Fiscal Flaminiano, sent a letter to President Marcos,
through counsel Antonio Coronel asking the return at least of the printing
equipment and vehicles. And after such a letter had been sent, through Col.
Balbino V. Diego, Chief Intelligence and Legal Officer of the Presidential
Security Command, they were further encouraged to hope that the latter
would yield the desired results. 

"After waiting in vain for five[5] months, petitioners finally decided to come
to Court." [pp. 123-124, Rollo] 
Although the reason given by petitioners may not be flattering to our judicial
system, We find no ground to punish or chastise them for an error in
judgment. On the contrary, the extrajudicial efforts exerted by petitioners
quite evidently negate the presumption that they had abandoned their right
to the possession of the seized property, thereby refuting the charge of
laches against them. 

Respondents also submit the theory that since petitioner Jose Burgos, Jr.
had used and marked as evidence some of the seized documents in Criminal
Case No. Q-022872, he is now estopped from challenging the validity of the
search warrants. We do not follow the logic of respondents. These
documents lawfully belong to petitioner Jose Burgos, Jr. and he can do
whatever he pleases with them, within legal bounds. The fact that he has
used them as evidence does not and cannot in any way affect the validity or
invalidity of the search warrants assailed in this petition. 

Several and diverse reasons have been advanced by petitioners to nullify the
search warrants in question. 

Petitioners fault respondent judge for his alleged failure to conduct an

examination under oath or affirmation of the applicant and his witnesses, as
mandated by the above-quoted constitutional provision as well as Sec. 4,
Rule 126 of the Rules of Court.[6]   This objection, however, may properly be
considered moot and academic, as petitioners themselves conceded during
the hearing on August 9, 1983, that an examination had indeed been
conducted by respondent judge of Col. Abadilla and his witnesses. 

Search Warrants No. 20-82[a] and No. 20-82lb] were used to search two
distinct places: No. 19, Road 3, Project 6, Quezon City and 784 Units C & D,
RMS Building, Quezon Avenue, Quezon City, respectively. Objection is
interposed to the execution of Search Warrant No. 20-82 [b] at the latter
address on the ground that the two search warrants pinpointed only one
place where petitioner Jose Burgos, Jr. was allegedly keeping and concealing
the articles listed therein, i.e., No. 19, Road 3, Project 6, Quezon City. This
assertion is based on that portion of Search Warrant No. 20-82[b] which
states: 

"Which have been used, and are being used as instruments and means of
committing the crime of subversion penalized under P.D. 885 as amended
and he is keeping and concealing the same at 19 Road 3, Project 6, Quezon
City." 

The defect pointed out is obviously a typographical error. Precisely, two

search warrants were applied for and issued because the purpose and intent
were to search two distinct premises. It would be quite absurd and illogical
for respondent judge to have issued two warrants intended for one and the
same place. Besides, the addresses of the places sought to be searched
were specifically set forth in the application, and since it was Col. Abadilla
himself who headed the team which executed the search warrants, the
ambiguity that might have arisen by reason of the typographical error is
more apparent than real. The fact is that the place for which Search Warrant
No. 20- 82[b] was applied for was 728 Units C & D, RMS Building, Quezon
Avenue, Quezon City, which address appeared in the opening paragraph of
the said warrant.[7]   Obviously, this is the same place that respondent judge
had in mind when he issued Warrant No. 20-82 fb]. 

In the determination of whether a search warrant describes the premises to

be searched with sufficient particularity, it has been held 'that the executing
officer's prior knowledge as to the place intended in the warrant is relevant.
This would seem to be especially true where the executing officer is the
affiant on whose affidavit the warrant had issued, and when he knows that
the judge who issued the warrant intended the building described in the
affidavit. And it has also been said that the executing officer may look to the
affidavit in the official court file to resolve an ambiguity in the warrant as to
the place to be searched." [8]

3. Another ground relied upon to annul the search warrants is the fact that
although the warrants were directed against Jose Burgos, Jr. alone, articles
belonging to his co-petitioners Jose Burgos, Sr., Bayani Soriano and the J.
Burgos Media Services, Inc. were seized. 

Section 2, Rule 126 of the Rules of Court, enumerates the personal

properties that may be seized under a search warrant, to wit: 

"SEC. 2. Personal Property to be seized.— A search warrant may be issued

for the search and seizure of the following personal property: 

Property subject of the offense; 

Property stolen or embezzled and other proceeds or fruits of the offense;

and 

Property used or intended to be used as the means of committing an

offense. 

The above rule does not require that the property to be seized should be
owned by the person against whom the search warrant is directed. It may or
may not be owned by him. In fact, under subsection [b] of the above-quoted
Section 2, one of the properties that may be seized is stolen property.
Necessarily, stolen property must be owned by one other than the person in
whose possession it may be at the time of the search and seizure.
Ownership, therefore, is of no consequence, and it is sufficient that the
person against whom the warrant is directed has control or possession of the
property sought to be seized, as petitioner Jose Burgos, Jr. was alleged to
have in relation to the articles and property seized under the warrants. 

4. Neither is there merit in petitioners' assertion that real properties were

seized underthe disputed warrants. Under Article 415[5] of the Civil Code of
the Philippines, "machinery, receptacles, instruments or implements
intended by the owner of the tenement for an industry or works which may
be carried on in a building or on a piece of land and which tend directly to
meet the needs of the said industry or works" are considered immovable
property. In Davao Sawmill Co. vs. Castillo [9]   where this legal provision
was invoked, this Court ruled that machinery which is movable by nature
becomes immobilized when placed by the owner of the tenement, property
or plant, but not so when placed by a tenant, usufructuary, or any other
person having only a temporary right, unless such person acted as the agent
of the owner. 

In the case at bar, petitioners do not claim to be the owners of the land
and/or building on which the machineries were placed. This being the case,
the machineries in question, while in fact bolted to the ground remain
movable property susceptible to seizure under a search warrant. 

5. The questioned search warrants were issued by respondent judge upon

application of Col. Rolando N. Abadilla, Intelligence Officer of the P.C.
Metrocom.[10]   The application was accompanied by the Joint Affidavit of
Alejandro M. Gutierrez and Pedro U. Tango[11] , members of the Metrocom
Intelligence and Security Group under Col. Abadilla which conducted a
surveillance of the premises prior to the filing of the application for the
search warrants on December 7, 1982. 

It is contended by petitioners, however, that the above-mentioned

documents could not have provided sufficient basis for the finding of a
probable cause upon which a warrant may validly issue in accordance with
Section 3, Article IV of the 1973 Constitution which provides: 

"SEC. 3. x x x 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." 

We find petitioners' thesis impressed with merit. Probable cause for a search
is defined as such facts and circumstances which would lead a reasonably
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. And when the search warrant applied for is directed
against a newspaper publisher or editor in connection with the publication of
subversive materials, as in the case at bar, the application and/or its
supporting affidavits must contain a specification, stating with particularity
the alleged subversive material he has published or is intending to publish.
Mere generalization will not suffice. Thus, the broad statement in Col.
Abadilla's application that petitioner "is in possession or has in his control
printing equipment and other paraphernalia, news publications and other
documents which were used and are all continuously being used as a means
of committing the offense of subversion punishable under Presidential
Decree 885, as amended x x x"[12]   is a mere conclusion of law and does not
satisfy the requirements of probable cause. Bereft of such particulars as
would justify a rinding of the existence of probable cause, said allegation
cannot serve as basis for the issuance of a search warrant and it was a
grave error for respondent judge to have done so. 

Equally insufficient as basis for the determination of probable cause is the

statement contained in the joint affidavit of Alejandro M. Gutierrez and
Pedro U. Tango, "that the evidence gathered and collated by our unit clearly
shows that the premises above- mentioned and the articles and things
above-described were used and are continuously being used for subversive
activities in conspiracy with, and to promote the objective of, illegal
organizations such as the Light-a-Fire Movement, Movement for Free
Philippines, and April 6 Movement."[13] 

In mandating that "no warrant shall issue except upon probable cause to be
determined by the judge, x x x after examination under oath or affirmation
of the complainant and the witnesses he may produce; [14]   the Constitution
requires no less than personal knowledge by the complainant or his
witnesses of the facts upon which the issuance of a search warrant may be
justified. In Alvarez vs. Court of First Instance,[15]   this Court ruled that "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." As couched, the quoted averment in said joint affidavit filed
before respondent judge hardly meets the test of sufficiency established by
this Court in Alvarez case. 

Another factor which makes the search warrants under consideration

constitutionally objectionable is that they are in the nature of general
warrants. The search warrants describe the articles sought to be seized in
this wise: 

"1] All printing equipment, paraphernalia, paper, ink, photo equipment,

typewriters, cabinets, tables, communications/recording equipment, tape
recorders, dictaphone and the like used and/or connected in the printing of
the "WE FORUM' newspaper and any and all documents, communications,
letters and facsimile of prints related to the 'WE FORUM" newspaper. 

2] Subversive documents, pamphlets, leaflets, books, and other publications

to promote the objectives and purposes of the subversive organizations
known as Movement for Free Philippines, Light-a-Fire Movement and April 6
Movement; and, 

3] Motor vehicles used in the distribution/circulation of the 'WE FORUM' and

other subversive materials and propaganda, more particularly, 

1] Toyota-Corolla, colored yellow with Plate No. NKA 892; 2] DATSUN pick-
up colored white with Plate No. NKV 969; 3] A delivery truck with Plate No.
NBS 542; 

4] TOYOTA-TAMARAW, colored white with Plate No. PBP 665; and, 

5] TOYOTA Hi-Lux, pick-up truck with Plate No. NGV 472 with marking
'Bagong Silang.' 

In Stanford vs. State of Texas,[16]   the search warrant which authorized the

search for "books, records, pamphlets, cards, receipts, lists, memoranda,
pictures, recordings and other written instruments concerning the
Communist Parties of Texas, and the operations of the Communist Party in
Texas," was declared void by the U.S. Supreme Court for being too general.
In like manner, directions to "seize any evidence in connection with the
violation of SDC 13-3703 or otherwise" have been held too general, and that
portion of a search warrant which authorized the seizure of any
''paraphernalia which could be used to violate Sec. 54-197 of the
Connecticut General Statutes [the statute dealing with the crime of
conspiracy]" was held to be a general warrant, and therefore invalid. [17] The
description of the articles sought to be seized under the search warrants in
question cannot be characterized differently. 

In the Stanford case, the U.S. Supreme Court calls to mind a notable
chapter in English history: the era of disaccord between the Tudor
Government and the English Press, when ''officers of the Crown were given
roving commissions to search where they pleased in order to suppress and
destroy the literature of dissent both Catholic and Puritan." Reference herein
to such historical episode would not be relevant for it is not the policy of our
government to suppress any newspaper or publication that speaks with "the
voice of non-conformity" but poses no clear and imminent danger to state
security. 

As heretofore stated, the premises searched were the business and printing
offices of the "Metropolitan Mail" and the "We Forum" newspapers. As a
consequence of the search and seizure, these premises were padlocked and
sealed, with the further result that the printing and publication of said
newspapers were discontinued. 

Such closure is in the nature of previous restraint or censorship abhorrent to

the freedom of the press guaranteed under the fundamental law, [18] and
constitutes a virtual denial of petitioners' freedom to express themselves in
print. This state of being is patently anathematic to a democratic framework
where a free, alert and even militant press is essential for the political
enlightenment and growth of the citizenry. 

Respondents would justify the continued sealing of the printing machines on

the ground that they have been sequestered under Section 8 of Presidential
Decree No. 885, as amended, which authorizes "the sequestration of the
property of any person, natural or artificial, engaged in subversive activities
against the government and its duly constituted authorities x x x in
accordance with implementing rules and regulations as may be issued by the
Secretary of National Defense." It is doubtful, however, if sequestration
could validly be effected in view of the absence of any implementing rules
and regulations promulgated by the Minister of National Defense. 

Besides, in the December 10, 1982 issue of the Daily Express, it was

reported that no less than President Marcos himself denied the request of
the military authorities to sequester the property seized from petitioners on
December 7, 1982. Thus, 

"The President denied a request filed by government prosecutors for

sequestration of the WE FORUM newspaper and its printing presses,
according to Information Minister Gregorio S. Cendaña. 

"On the basis of court orders, government agents went to the We Forum
offices in Quezon City and took a detailed inventory of the equipment and all
materials in the premises. 

"Cendana said that because of the denial, the newspaper and its equipment
remain at the disposal of the owners, subject to the discretion of the
court."[19] 
That the property seized on December 7, 1982 had not been sequestered is
further confirmed by the reply of then Foreign Minister Carlos P. Romulo to
the letter dated February 10, 1983 of U. S. Congressman Tony P. Hall
addressed to President Marcos, expressing alarm over the "WE FORUM"
case.[20]  In this reply dated February 11, 1983, Minister Romulo stated:

"2. Contrary to reports, President Marcos turned down the recommendation

of our authorities to close the paper's printing facilities and confiscate
theequipment and materials it uses."[21]

IN VIEW OF THE FOREGOING, Search Warrants Nos. 20- 82[a] and 20-
82[b] issued by respondent judge on December 7, 1982 are hereby declared
null and void and are accordingly set aside. The prayer for a writ of
mandatory injunction for the return of the seized articles is hereby granted
and all articles seized thereunder are hereby ordered released to petitioners.
No costs. 

SO ORDERED. 

Fernando, C.J., Makasiar, Conception Jr., Melencio-Herrera, Pland, Relova,

Gutierrez, Jr., De la Fuente and Cuevas, JJ., concur. 

Teehankee, J., I concur with the main opinion of Mr. Justice Escolin and the
concurrence of Mr. Justice Abad Santos. 

Abad Santos, J., see concurring opinion. 

Aquino, J., took no part.

[1] 
  Petition, P.44, Rollo. 
[2] 
  Manifestation and Opposition, P.75, Rollo. 
[3] 
  Templo vs. Dela Cruz, 60 SCRA 295. 
[4] 
  63 Phil. 275. 
[5] 
  Tijam vs. Sibonghanoy, 23 SCRA 29. 
[6] 
  Sec. 4, Rule 126, Rules of Court provides: 

Sec. 4, Examination of the Applicant.-- The municipal or city judge must,

before issuing the warrant, personally examine on oath or affirmation the
complainant and any witnesses he may produce and take their deposition in
writing and attach them to the record, in addition to any affidavits presented
to them. 
[7] 
  The Opening paragraph of Search Warrant No. 20-82[b] reads: 

"It appearing to the satisfaction of the undersigned after examination under

oath of Maj. Alejandro M. Gutierrez and Lt. Pedro U. Tango, that there are
good and sufficient reason to believe that Jose Burghos, Jr. Publisher-Editor
of 'WE FORUM' with office address at 784 Units C & D, RMS Building, Quezon
Avenue, Quezon City, has in his possession and control at said address the
following: xxx." 
[8] 
  68 Am. Jur. 2d., 729. 
[9] 
  61 Phil. 709. 
[10] 
  Annex "C", Petition, pp. 51-52, Rollo. 
[11] 
  Annex "B", Petition, pp. 53-54, Rollo. 
[12] 
  Annex "C", Petition, p. 51, Rollo. 
[13] 
  Annex "D", Petition, p. 54, Rollo. 
[14] 
  Sec. 3, Art. IV, 1973 Constitution. 
[15] 
  64 Phil. 33. 
[16] 
  379 U.S. 476, 13 L Ed 2nd 431. 
[17] 
  68 Am. Jur. 2d, pp. 736-737. 
[18] 
  Sec. 9, Art IV of the Constitution. 
[19] 
  Annex "K", Consolidated Reply, p. 175, Rollo. 
[20] 
  Annex "L", Consolidated Reply, p. 178, Rollo. 
[21] 
  Annex "M", Consolidated Reply, p. 179, Rollo.

  CONCURRING 

ABAD SANTOS, J.: 

I am glad to give my concurrence to the ponencia of Mr. Justice Escolin. At

the same time I wish to state my own reasons for holding that the search
warrants which are the subject of the petition are utterly void. 

The action against WE FORUM was a naked suppression of press freedom for
the search warrants were issued in gross violation of the Constitution. 

The Constitutional requirement which is expressed in Section 3, Article IV,

stresses two points, namely: "(1) that no warrant shall issue but upon
probable cause, to be determined by the judge in the manner set forth in
said provision; and (2) that the warrant shall particularly describe the things
to be seized." (Stonehill vs. Diokno, 126 Phil. 738, 747; 20 SCRA
383[1967] .) 

Any search which is conducted in disregard of the points mentioned above

will result in wiping "out completely one of the most fundamental rights
guaranteed in our Constitution, for it would place the sanctity of the domicile
and the privacy of communication and correspondence at the mercy of the
whims, caprice or passion of peace officers." (Ibid., p.748.) 

The two search warrants were issued without probable cause. To satisfy the
requirement of probable cause a specific offense must be alleged in the
application; abstract averments will not suffice. In the case at bar nothing
specifically subversive has been alleged; stated only is the claim that certain
objects were being used as instruments and means of committing the
offense of subversion punishable under P.D. No. 885, as amended. There is
no mention of any specific provision of the decree. In the words of Chief
Justice Concepsion, "It would be legal heresy, of the highest order, to
convict anybody" of voilating the decree without reference to any
determinate provision thereof. 

The search warrants are also void for lack of particularity. Both search
warrants authorize Col. Rolando Abadilla to seize and take possession,
among other things, of the following: 

"Subversive documents, pamphlets, leaflets, books and other publication to

promote the objectives and purposes of the subversive organizations known
as Movement for Free Philippines, Light-a-Fire Movement and April 6
Movement." 

The obvious questions is: Why were documents, pamphlets, leaflets, books,
etc. subversive?What did they contain to make them subversive?There is
nothing in the applications nor in the warrants which answers the questions.
I must, therefore, conclude that the warrants are general warrants which are
obnoxious to the Constitution. 

In point of fact, there was nothing subversive published in the WE FORUM

just as there is nothing subversive which has been published in MALAYA
which has replaced the former and has the same content but against which
no action has been taken. 

Conformably with existing jurisprudence everything seized pursuant to the

warrants should be returned to the owners and all of the items are subject
to the exclusionary rule of evidence. 
 Source: Supreme Court E-Library | Date created: November 25, 2014
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3.Pangandaman v. Casar, 159 SCRA 599 (G.R. Nos. 71782, April 14,
1988)
 243 Phil. 142

FIRST DIVISION

[ G.R. No. 71782, April 14, 1988 ]

HADJI IBRAHIM SOLAY PANGANDAMAN, MAGAMBAAN

PANGANDAMAN, MACARIAN PANGANDAMAN, MAMINTAL
PANGANDAMAN, PACALUNDO PANGANDAMAN, MANGORAMAS
PANGANDAMAN, MACADAOB P. PANGORANGAN, KILATUN
PANGANDAMAN, MARIO PANGANDAMAN, MACABIDAR
PANGANDAMAN, PUYAT P. ROMAMPAT, SANTORANI P.
DIMAPENGEN, NASSER P. DIMAPENGEN AND DIAMA OPAO,
PETITIONERS, VS. DIMAPORO T. CASAR, AS MUNICIPAL CIRCUIT
TRIAL JUDGE OF POONABAYABAO, TAMPARAN AND MASIU, LANAO
DEL SUR AND THE PEOPLE OF THE PHILIPPINES, RESPONDENTS.

DECISION

NARVASA, J.:

The petitioners ask this Court:

1) to annul the warrant for their arrest issued by respondent Judge

Dimaporo T. Casar of the Municipal Circuit Court of Masiu, Lanao del Sur,
in Criminal Case No. 1748 entitled “People vs. Hadji Ibrahim Solay
Pangandaman, et al.”;

2) to prohibit the Judge from taking further cognizance of said Criminal

Case No. 1748; and

3) to compel the Judge to forward the entire record of Criminal Case No.
1748 to the Provincial Fiscal of Lanao del Sur for proper disposition. [1]

Their plea is essentially grounded on the claim that the warrant for their
arrest was issued by the respondent Judge without a proper preliminary
investigation.[2] The Solicitor General agrees and recommends that their
petition be granted and the warrant of arrest voided.[3]

On July 27, 1985, a shooting incident occurred in Pantao, Masiu, Lanao del
Sur, which left at least five persons dead and two others wounded. What in
fact transpired is still unclear. According to one version, armed men had
attacked a residence in Pantao, Masiu, with both attackers and defenders
suffering casualties.[4] Another version has it that a group that was on its
way to another place, Lalabuan, also in Masiu, had been ambushed. [5]
On the following day, Atty. Mangurun Batuampar, claiming to represent the
widow of one of the victims, filed a letter-complaint with the Provincial Fiscal
at Marawi City, asking for a “full blast preliminary investigation” of the
incident.[6] The letter adverted to the possibility of innocent persons being
implicated by the parties involved on both sides -- none of whom was,
however, identified -- and promised that supporting affidavits would shortly
be filed. Immediately the Provincial Fiscal addressed a “1st indorsement” to
the respondent Judge, transmitting Atty. Batuampar’s letter and requesting
that “all cases that may be filed relative ** (to the incident) that happened
in the afternoon of July 27, 1985,” be forwarded to his office, which “has
first taken cognizance of said cases.”[7]

No case relative to the incident was, however, presented to the respondent

Judge until Saturday, August 10, 1985, when a criminal complaint for
multiple murder was filed before him by P.C. Sgt. Jose L. Laru-an, which was
docketed as Case No. 1748.[8] On that same day, the respondent Judge
“examined personally all (three) witnesses (brought by the sergeant) under
oath thru * * (his) closed and direct supervision,” reducing to writing the
questions to the witnesses and the latter’s answers.[9] Thereafter the Judge
“approved the complaint and issued the corresponding warrant of arrest”
against the fourteen (14) petitioners (who were named by the witnesses)
and fifty (50) “John Does.”[10]

An “ex-parte” motion for reconsideration was filed on August 14, 1985 by

Atty. Batuampar (joined by Atty. Pama L. Muti), seeking recall of the
warrant of arrest and subsequent holding of a “thorough investigation” on
the ground that the Judge’s initial investigation had been “hasty and
manifestly haphazard” with “no searching questions” having been
propounded.[11] The respondent Judge denied the motion for “lack of basis”;
[12]
 hence the present petition.

While they concede the authority of the respondent Judge to conduct a

preliminary investigation of the offenses involved, which are cognizable by
Regional Trial Courts, the petitioners and the Solicitor General argue that the
Judge in the case at bar failed to conduct the investigation in accordance
with the procedure prescribed in Section 3, Rule 112 of the Rules of Court;
[13]
 and that that failure constituted a denial to petitioners of due process
which nullified the proceedings leading to the issuance of the warrant for the
petitioners’ arrest.[14] It is further contended that August 10, 1985 was a
Saturday during which “Municipal Trial Courts are open from 8:00 a.m. to
1:00 p.m. only, * * *” and “* * * it would hardly have been possible for
respondent Judge to determine the existence of probable cause against
sixty-four (64) persons whose participations were of varying nature and
degree in a matter of hours and issue the warrant of arrest in the same
day;”[15] and that there was undue haste and an omission to ask searching
questions by the Judge who relied “mainly on the supporting affidavits which
were obviously prepared already when presented to him by an enlisted PC
personnel as investigator.”[16]

The petitioners further assert that the respondent Judge conducted the
preliminary investigation of the charges “* * * in total disregard of the
Provincial Fiscal * * *” who, as said respondent well knew, had already
taken cognizance of the matter twelve (12) days earlier and was poised to
conduct his own investigation of the same;[17] and that issuance of a warrant
of arrest against fifty (50) “John Does” transgressed the Constitutional
provision requiring that such warrants should particularly describe the
persons or things to be seized.[18]

There can be no debate about the proposition that in conducting a

preliminary investigation of any crime cognizable by the Regional Trial
Courts, a judge of an inferior court (other than in Metro-Manila or the
chartered cities, where no authority to conduct preliminary investigation is
vested in such officials) must observe the procedure prescribed in Section 3
of Rule 112, 1985 Rules on Criminal Procedure. And although not specifically
so declared, the procedure mandated by the Rule actually consists of two
phases or stages.

The first phase consists of an ex-parte inquiry into the sufficiency of the
complaint and the affidavits and other documents offered in support thereof.
And it ends with the determination by the Judge either: (1) that there is no
ground to continue with the inquiry, in which case he dismisses the
complaint and transmits the order of dismissal, together with the records of
the case, to the provincial fiscal; or (2) that the complaint and the
supporting documents show sufficient cause to continue with the inquiry and
this ushers in the second phase.

This second phase is designed to give the respondent notice of the

complaint, access to the complainant’s evidence and an opportunity to
submit counter-affidavits and supporting documents. At this stage also, the
Judge may conduct a hearing and propound to the parties and their
witnesses questions on matters that, in his view, need to be clarified. The
second phase concludes with the Judge rendering his resolution, either for
dismissal of the complaint or holding the respondent for trial, which shall be
transmitted, together with the record, to the provincial fiscal for appropriate
action.

The procedure above described must be followed before the complaint or

information is filed in the Regional Trial Court. Failure to do so will result in a
denial of due process.[19]

Here, no information has as yet been filed with the Regional Trial Court.
There is no pretense that the preliminary investigation has been completed,
insofar as the respondent Judge is concerned, and that he does not intend to
undertake the second phase. In this situation, it cannot be said that he has
failed to observe the prescribed procedure. What has happened is simply
that after receiving the complaint and examining the complainant’s
witnesses, and having come to believe, on the basis thereof, that the
offenses charged had been committed, the respondent Judge issued the
warrant now complained of against the fourteen (14) respondents (now
petitioners) named and identified by the witnesses as the perpetrators of the
killings and injuries, as well as against 50 “John Does.”

The real question, therefore, is whether or not the respondent Judge had the
power to issue the warrant of arrest without completing the entire prescribed
procedure for preliminary investigation. Stated otherwise, is completion of
the procedure laid down in Section 3 of Rule 112 a condition sine qua non
for the issuance of a warrant of arrest?

There is no requirement that the entire procedure for preliminary

investigation must be completed before a warrant of arrest may be issued.
What the Rule[20] provides is that no complaint or information for an offense
cognizable by the Regional Trial Court may be filed without completing that
procedure. But nowhere is it provided that the procedure must be completed
before a warrant of arrest may issue. Indeed, it is the contrary that is true.
The present Section 6 of the same Rule 112 clearly authorizes the municipal
trial court to order the respondent’s arrest even before opening the second
phase of the investigation if said court is satisfied that a probable cause
exists and there is a necessity to place the respondent under immediate
custody in order not to frustrate the ends of justice.

“Sec. 6. When warrant of arrest may issue. --

***
(b) By the Municipal Trial Court. -- If the municipal trial judge conducting the
preliminary investigation is satisfied after an examination in writing and
under oath of the complainant and his witnesses in the form of searching
questions and answers, that a probable cause exists and that there is a
necessity of placing the respondent under immediate custody in order not to
frustrate the ends of justice, he shall issue a warrant of arrest.” [21]

This was equally true under the former rules, where the first phase of the
investigation was expressly denominated “preliminary examination” to
distinguish it from the second phase, or preliminary investigation proper.
Thus, the former Section 6 of Rule 112 provided:

“SEC. 6. Warrant of arrest, when issued. -- If the judge be satisfied from the
preliminary examination conducted by him or by the investigating officer
that the offense complained of has been committed and that there is
reasonable ground to believe that the accused has committed it, he must
issue a warrant or order for his arrest.”
In Mayuga vs. Maravilla,[22] this Court found occasion to dwell in some detail
on the process of preliminary investigation and, incidentally, to affirm the
power of a justice of the peace or municipal judge conducting a preliminary
investigation to order the arrest of the accused after the first stage
(preliminary examination), saying:

“Appellant should bear in mind that a preliminary investigation such as was

conducted by the Justice of the Peace has for its purpose only the
determination of whether a crime has been committed and whether there is
probable cause to believe the accused guilty thereof, and if so, the issuance
of a warrant of arrest. And it should not be forgotten that a preliminary
investigation has two stages: First, a preliminary examination of the
complainant and his witnesses prior to the arrest of the accused; and,
second, the reading to the accused after his arrest of the complaint or
information filed against him, and his being informed of the substance of the
evidence against him, after which he is allowed to present evidence in his
favor, if he so desires. Probable cause, in regard to the first stage of
preliminary investigation, depends on the discretion of the judge or
magistrate empowered to issue the warrant of arrest. It suffices that facts
are presented to him to convince him, not that a person has committed the
crime, but that there is probable cause to believe that such person
committed the crime charged. The proceeding is generally ex parte unless
the defendant desires to be present and while under the old Rules the
Justice of the Peace or investigating officer must take the testimony of the
complainant and the latter’s witnesses under oath, only the testimony of the
complainant shall be in writing and only an abstract of the testimony of the
other is required. Regarding preliminary investigation, it has thus been ruled
that ‘the occasion is not for the full and exhaustive display of the parties’
evidence; it is for the presentation of such evidence only as may engender
well-grounded belief that an offense has been committed and that the
accused is probably guilty thereof.’ * * *”[23]

The rule on arrest after preliminary examination has, of course, been

modified somewhat since the occurrence of the facts upon which Mayuga
was decided, but not to abrogate the authority of the investigating judge to
order such arrest, and only to prescribe the requirement that before he may
do so, he must examine the witnesses to the complaint, the examination to
be under oath and reduced to writing in the form of searching questions and
answers. This modification was introduced by Republic Act 3838, approved
June 22, 1963, amending Section 87 of the Judiciary Act of 1948, and the
“searching questions and answers” requirement is incorporated in the
present Section 6 of Rule 112 already quoted.

The argument, therefore, must be rejected that the respondent Judge acted
with grave abuse of discretion in issuing the warrant of arrest against
petitioners without first completing the preliminary investigation in
accordance with the prescribed procedure. The rule is and has always been
that such issuance need only await a finding of probable cause, not the
completion of the entire procedure of preliminary investigation.

Also without appreciable merit is petitioners’ other argument that there was
scarcely time to determine probable cause against sixty-four persons (the
fourteen petitioners and fifty “Does”) within a matter of hours on a Saturday
when municipal trial courts are open only from 8:00 a.m. to 1:00 p.m. That
argument founders upon the respondent Judge’s positive affirmations that
he had personally and closely examined under oath the three witnesses to
the complaint[24] and that he had issued the warrant of arrest “believing that
the offense thus filed had been committed.”[25] Nothing in the record before
this Court belies or discredits those affirmations which have, besides, the
benefit of the legal presumption that official duty has been regularly
performed.[26] The contention that the witnesses to the complaint had merely
sworn before the respondent Judge to statements prepared beforehand and
submitted by a military investigator[27] must, in view of the foregoing
considerations and for lack of any support in the record, be dismissed as
mere speculation.

The same argument also unwarrantedly assumes that the respondent Judge
limited the proceedings on preliminary examination to the usual Saturday
office hours of 8:00 a.m. to 1:00 p.m., in addition to not making any
persuasive showing that such proceedings could not have been completed
within that time-frame. For all that appears, said respondent could have put
off the 1:00 p.m. adjournment until he had finished interrogating the
witnesses to his satisfaction. And there is really nothing unusual in
completing within a three-hour period the questioning of three witnesses in a
preliminary examination to determine the existence of probable cause.

The record which, lacking proof to the contrary, must be accepted as an

accurate chronicle of the questioned proceedings, shows prima facie that the
respondent Judge had personally examined the witnesses to the complaint,
and a consideration of the latter’s sworn answers to his questions satisfies
this Court that the finding of probable cause against the petitioners was
neither arbitrary nor unfounded.

The three witnesses to the complaint, Misandoning Monasprang, a student,

Lawandato Ripors, an engineering graduate, and Sanny Monib, a farmer,
gave mutually corroborative accounts of the incident. Under separate
questioning, they declared that they were members of a party that was
passing by Pantao on its way to Lalabuan from Talaguian, all in Masiu, Lanao
del Sur, at about 10:00 a.m. on July 27, 1985, when they were ambushed
and fired upon by an armed group which included the petitioners and about
fifty other unidentified persons; that five of the party had been killed and
two (the witnesses Lawandato Ripors and Sanny Monib) wounded; that even
after they had killed their victims, the ambushers had continued to fire at
the dead bodies; that the witnesses managed to escape their attackers and
return to Talaguian, where they informed their relatives about what had
happened, and thence went to the municipal hall in Masiu to report to the
authorities; that the dead victims were recovered only late in the afternoon
of that day because the authorities could not “penetrate” the area and the
ambushers refused to release the bodies; and that the ambush was an
offshoot of a grudge between the families of the ambushers and those of the
victims.[28]

The witnesses named and identified the dead victims as Cadar Monasprang,
Macacrao Guiling, Macrang Hadji Alawi, Alicman Ripors and Malabato Diator.
All of them also identified by name each of the fourteen petitioners as
members of the ambush group. The respondent Judge can hardly be faulted
for finding enough cause to hold the petitioners named in the statements of
three eyewitnesses to killings perpetrated in broad daylight.

In Luna vs. Plaza,[29] this Court ruled that the term “searching questions and
answers” means -

“* * * only, taking into consideration the purpose of the preliminary

examination which is to determine “whether there is a reasonable ground to
believe that an offense has been committed and the accused is probably
guilty thereof so that a warrant of arrest may be issued and the accused
held for trial,” such questions as have tendency to show the commission of a
crime and the perpetuator thereof. What would be searching questions
would depend on what is sought to be inquired into, such as: the nature of
the offense, the date, time, and place of its commission, the possible
motives for its commission; the subject, his age, education, status, financial
and social circumstances, his attitude toward the investigation, social
attitudes, opportunities to commit the offense; the victim, his age, status,
family responsibilities, financial and social circumstances, characteristics,
etc. The points that are the subject of inquiry may differ than case to case.
The questions, therefore must to a great degree depend upon the Judge
making the investigation. * * *”

Upon this authority, and considering what has already been stated above,
this Court is not prepared to question the propriety of the respondent
Judge’s finding of probable cause or substitute its judgment for his in the
matter of what questions to put to the witnesses during the preliminary
examination.

Upon the facts and the law, therefore, the warrant of arrest in question
validly issued against the petitioners, such issuance having been ordered
after proceedings, to which no irregularity has been shown to attach, in
which the respondent Judge found sufficient cause to commit the petitioners
to answer for the crime complained of.

Insofar, however, as said warrant is issued against fifty (50) “John Does” not
one of whom the witnesses to the complaint could or would identify, it is of
the nature of a general warrant, one of a class of writs long proscribed as
unconstitutional and once anathematized as “totally subversive of the liberty
of the subject.”[30] Clearly violative of the constitutional injunction that
warrants of arrest should particularly describe the person or persons to be
seized,[31] the warrant must, as regards its unidentified subjects, be voided.

The fact that the Provincial Fiscal may have announced his intention of
investigating the incident himself did not, in the view of the Court, legally
inhibit the respondent Judge from conducting his own inquiry into the matter
if, as is made to appear here, it was regularly brought before him and no
formal complaint was filed before the Fiscal. Courtesy may have dictated
that in those circumstances he leave the investigation to the Fiscal and
simply endorse to the latter the complaint filed with him; duty did not, and if
he nonetheless chose to conduct his own investigation, nothing in the rules
states or implies that he could not do so.

Be that as it may, since the action and final resolution of the respondent
Judge after completing the second stage of the preliminary investigation are
subject to review by the Provincial Fiscal, practical considerations of
expediency and the avoidance of duplication of work dictate that the latter
official be permitted to take over the investigation even in its present stage.

WHEREFORE, the warrant complained of is upheld and declared valid

insofar as it orders the arrest of the petitioners. Said warrant is voided to
the extent that it is issued against fifty (50) “John Does.” The respondent
Judge is directed to forward to the Provincial Fiscal of Lanao del Sur the
record of the preliminary investigation of the complaint in Criminal Case No.
1748 of his court for further appropriate action. Without pronouncement as
to costs.

SO ORDERED.

Teehankee, C.J., Cruz, Gancayco, and Griño-Aquino, JJ., concur.

[1]
 Rollo, pp. 2, 16

[2]
 Rollo, pp. 7-15

[3]
 Id., pp. 93-95, 117

[4]
 Petition; Rollo, p. 4

[5]
 Annexes C-1, C-2, C-3, Petition; Rollo, pp. 22-24

[6]
 Rollo, pp. 4, 19
[7]
 Rollo, p. 20

[8]
 Id., p. 21

[9]
 Id., p. 21 (overleaf)

[10]
 Id., pp. 25, 28

[11]
 Id., pp. 26-27

[12]
 Id., p. 28

[13]
 The new rules on criminal procedure which became effective on January
1, 1985.

[14]
 Rollo, pp. 8-10, 89-91

[15]
 Id., p. 94

[16]
 Id., p. 14

[17]
 Rollo, pp. 6, 11-12

[18]
 Sec. 3, Art. IV; Rollo, pp. 6, 12-13

[19]
 Mariñas vs. Siochi, 104 SCRA 423; Tabil vs. Ong, 91 SCRA 451; Banzon
vs. Cabato, etc., 64 SCRA 419; People vs. Paras, 56 SCRA 248; People vs.
Abejuela and Endan, 38 SCRA 324; People vs. Oandasan, 25 SCRA
277; Luna vs. Plaza, 26 SCRA 311; San Diego vs. Hernandez, 24 SCRA
110; People vs. Monton, 23 SCRA 1024.

[20]
 Section 3, first paragraph, of Rule 112, Rules of Court, which also excepts
cases where a lawful arrest without warrant has been made (Sec. 7 of the
same Rule).

[21]
 Sec. 6, and Sec. 9(b), Rule 112, Rules of Court, effective January 1,
1985; Sec. 37, B.P. 129; Sec. 3, Art. IV, Constitution.

[22]
 18 SCRA 1115

[23]
 Supra; citing Rule 108, Secs. 1, 6 and 11, of the old Rules of Court (now
Secs. 1, 5 and 12 of Rule 112, with modifications); Lozada vs.
Hernandez, 92 Phil. 1051; Biron vs. Cea, 78 Phil. 673; Rodriguez vs.
Arellano, 96 Phil. 954; U.S. vs. Ocampo, 18 Phil. 1; People vs. Moreno, 77
Phil. 548; Hashim vs. Boncan, 71 Phil. 216.

[24]
 Annex “C”, Petition; Rollo, p. 21 (overleaf); the certification written
thereon reads: “A PRELIMINARY EXAMINATION has been conducted in this
case, having examined personally all witnesses under oath thru my closed
and direct supervision.”

[25]
 Annex “F”, Petition; Rollo, p. 28

[26]
 Sec. 5(m), Rule 131, Rules of Court

[27]
 Rollo, pp. 9-10

[28]
 Annexes C-1, C-2, C-3, Petition

[29]
 26 SCRA 310

[30]
 Bouvier’s Law Dictionary, 3rd Rev., Vol 1, p. 1349 citing May, Const. Hist.
of England

[31]
 Art. IV, Sec. 3, Constitution

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4. Kho v. Judge Makalintal, 365 Phil 511 (G.R. No. 94902-06, April 21,
1999)

EN BANC
 [ G.R. No. 94902-06, April 21, 1999 ]

BENJAMIN V. KHO AND ELIZABETH ALINDOGAN, PETITIONERS, VS.

HON. ROBERTO L. MAKALINTAL AND NATIONAL BUREAU OF
INVESTIGATION, RESPONDENTS.

DECISION

PURISIMA, J.:

This is a petition for certiorari assailing the Order, dated July 26, 1990, of
Branch LXXVII of the Metropolitan Trial Court of Paranaque, which denied
petitioners' Motion to Quash Search Warrants emanating from the same
Court. Petitioners sought to restrain the respondent National Bureau of
Investigation (NBI) from using the objects seized by virtue of such warrants
in any case or cases filed or to be filed against them and to return
immediately the said items, including the firearms, ammunition and
explosives, radio communication equipment, hand sets, transceivers, two
units of vehicles and motorcycle.

The antecedent facts are as follows:

On May 15, 1990, NBI Agent Max B. Salvador applied for the issuance of
search warrants by the respondent Judge against Banjamin V. Kho, now
petitioner, in his residence at No. 45 Bb. Ramona Tirona St., BF Homes,
Phase I, Paranaque. On the same day, Eduardo T. Arugay, another NBI
agent, applied with the same court for the issuance of search warrants
against the said petitioner in his house at No. 326 McDivitt St., Bgy.
Moonwalk, Paranaque. The search warrants were applied for after teams of
NBI agents had conducted a personal surveillance and investigation in the
two houses referred to on the basis of confidential information they received
that the said places were being used as storage centers for unlicensed
firearms and "chop-chop" vehicles. Respondent NBI sought for the issuance
of search warrants in anticipation of criminal cases to be instituted against
petitioner Kho.

On the same day, the respondent Judge conducted the necessary

examination of the applicants and their witnesses, after which he issued
Search Warrant Nos. 90-11, 90-12, 90-13, 90-14, and 90-15.

On the following day, May 16, 1990, armed with Search Warrant Nos. 90-11
and 90-12, NBI agents searched subject premises at BF Homes, Paranaque,
and they recovered various high-powered firearms and hundreds of rounds
of ammunition. Meanwhile, another search was conducted at the house at
No. 326 McDivitt St. Bgy. Moonwalk, Paranaque, by another team of NBI
agents using Search Warrant Nos. 90-13, 90-14 and 90-15. The said second
search yielded several high-powered firearms with explosives and more than
a thousand rounds of ammunition. The simultaneous searches also resulted
in the confiscation of various radio and telecommunication equipment, two
units of motor vehicles (Lite-Ace vans) and one motorcycle. Upon verification
with the Firearms and Explosives Unit in Camp Crame, the NBI agents found
out that no license has ever been issued to any person or entity for the
confiscated firearms in question. Likewise, the radio agents found out that
no license has ever been issued to any person or entity for the confiscated
firearms in question. Likewise, the radio tranceivers recovered and motor
vehicles seized turned out to be unlicensed and unregistered per records of
the government agencies concerned.

On May 22, 1990, the raiding teams submitted separate returns to the
respondent Judge requesting that the items seized be in the continued
custody of the NBI (Annexes "O", "P", and "Q", Petition).

On May 28, 1990, the petitioners presented a Motion to Quash the said
Search Warrants, contending that:

1. The subject search warrants were issued without probable cause;

2. The same search warrants are prohibited by the Constitution for being
general warrants;

3. The said search warrants were issued in violation of the procedural

requirements set forth by the Constitution;

4. The search warrants aforesaid were served in violation of the Revised

Rules of Court; and

5. The objects seized were all legally possessed and issued.

On July 26, 1990, respondent Judge issued the assailed Order denying the
said Motion To Quash interposed by petitioners.

Petitioners question the issuance of subject search warrants, theorizing upon

the absence of any probable cause therefor. They contend that the
surveillance and investigation conducted by NBI agents within the premises
involved, prior to the application for the search warrants under controversy,
were not sufficient to vest in the applicants personal knowledge of facts and
circumstances showing or indicating the commission of a crime by them
(petitioners).

Petitioners' contention is untenable. Records show that the NBI agents who
conducted the surveillance and investigation testified unequivocably that
they saw guns being carried to and unloaded at the two houses searched,
and motor vehicles and spare parts were stored therein. In fact, applicant
Max B. Salvador declared that he personally attended the surveillance
together with his witnesses (TSN, May 15, 1990, pp. 2-3), and the said
witnesses personally saw the weapons being unloaded from motor vehicles
and carried to the premises referred to. NBI Agent Ali Vargas testified that
he actually saw the firearms being unloaded from a Toyota Lite-Ace van and
brought to the aformentioned house in BF Homes, Paranaque because he
was there inside the compound posing as an appliance agent (TSN, May 15,
1990, pp. 4-5). It is therefore decisively clear that the application for the
questioned search warrants was based on the personal knowledge of the
applicants and their witnesses.

In the case of Central Bank v. Morfe (20 SCRA 507), this Court ruled that
the question of whether or not a probable cause exists is one which must be
determined in light of the conditions obtaining in given situations. In Luna v.
Plaza (26 SCRA 310), it held that the existence of a probable cause depends
to a large extent upon the finding or opinion of the judge who conducted the
required examination of the applicants and the witnesses.

After a careful study, the Court discerns no basis for disturbing the findings
and conclusions arrived at by the respondent Judge after examining the
applicants and witnesses. Respondent judge had the singular opportunity to
assess their testimonies and to find out their personal knowledge of facts
and circumstances enough to create a probable cause. The Judge was the
one who personally examined the applicants and witnesses and who asked
searching questions vis-a-vis the applications for search warrants. He was
thus able to observe and determine whether subject applicants and their
witnesses gave accurate accounts of the surveillance and investigation they
conducted at the premises to be searched. In the absence of any showing
that respondent judge was recreant of his duties in connection with the
personal examination he so conducted on the affiants before him, there is no
basis for doubting the reliability and correctness of his findings and
impressions.

Petitioners brand as fatally defective and deficient the procedure followed in

the issuance of subject search warrants, reasoning out that the same did not
comply with constitutional and statutory requirements. They fault
respondent Judge for allegedly failing to ask specific questions they deem
particularly important during the examination of the applicants and their
witnesses. To buttress their submission, petitioners invite attention to the
following question, to wit:

"How did you know that there are unlicensed firearms being kept by
Benjamin Kho at No. 45 Bb. Ramona Tirona St., Phase I, BF Homes,
Paranaque, Metro Manila?" (TSN, Ali Vargas, May 15, 1990, p. 4)

Petitioners argue that by propounding the aforequoted question, the

respondent Judge assumed that the firearms at the premises to be searched
were unlicensed, instead of asking for a detailed account of how the NBI
agents came to know that the firearms being kept thereat were unlicensed.

This stance of petitioners is similarly devoid of any sustainable basis.

Nothing improper is perceived in the manner the respondent Judge
conducted the examination of subject applicants for search warrants and
their witnesses. He personally examined them under oath, and asked them
searching questions on the facts and circumstances personally known to
them, in compliance with prescribed procedure and legal requirements. It
can be gleaned that the sworn statements and affidavits submitted by the
witnesses were duly attached to the pertinent records of the proceedings. It
was within the discretion of the examining Judge to determine what
questions to ask the witnesses so long as the questions asked are germane
to the pivot of inquiry - the existence or absence of a probable cause.

Petitioners claim that subject search warrants are general warrants

proscribed by the Constitution. According to them, the things to be seized
were not described and detailed out, i.e. the firearms listed were not
classified as to size or make, etc.

Records on hand indicate that the search warrants under scrutiny specifically
describe the items to be seized thus:

Search Warrant No. 90-11

"Unlicensed radio communications equipments such as transmitters,
transceivers, handsets, scanners, monitoring device and the like."
Search Warrant No. 90-13
"Unlicensed radio communications equipments such as transmitters,
transceivers, handsets, radio communications equipments, scanners,
monitoring devices and others."
The use of the phrase "and the like" is of no moment. The same did not
make the search warrants in question general warrants. In Oca v. Maiquez
(14 SCRA 735), the Court upheld the warrant although it described the
things to be seized as "books of accounts and allied papers."

Subject Search Warrant Nos. 90-12 and 90-15 refer to:

"Unlicensed firearms of various calibers and ammunitions for the said
firearms."
Search Warrant No. 90-14 states:
"Chop-chop vehicles and other spare parts."
The Court believes, and so holds, that the said warrants comply with
Constitutional and statutory requirements. The law does not require that the
things to be seized must be described in precise and minute detail as to
leave no room for doubt on the part of the searching authorities. Otherwise,
it would be virtually impossible for the applicants to obtain a warrant as they
would not know exactly what kind of things they are looking for. Since the
element of time is very crucial in criminal cases, the effort and time spent in
researching on the details to be embodied in the warrant would render the
purpose of the search nugatory.

In the case under consideration, the NBI agents could not have been in a
position to know before hand the exact caliber or make of the firearms to be
seized. Although the surveillance they conducted did disclose the presence of
unlicensed firearms within the premises to be searched, they could not have
known the particular type of weapons involved before seeing such weapons
at close range, which was of course impossible at the time of the filing of the
applications for subject search warrants.

Verily, the failure to specify detailed descriptions in the warrants did not
render the same general. Retired Justice Ricardo Francisco's book on
Criminal Procedure has this useful insight:
"A description of the property to be seized need not be technically accurate
nor necessarily precise; and its nature will necessarily vary according to
whether the identity of the property, or its character, is the matter of
concern. Further, the description is required to be specific only so far as the
circumstances will ordinarily allow. x x x"
In People v. Rubio (57 Phil 384), the Court held that, "... But where, by the
nature of the goods to be seized, their description must be rather general, it
is not required that a technical description be given, for this would mean
that no warrant could issue."

It is indeed understandable that the agents of respondent Bureau have no

way of knowing whether the guns they intend to seize are a Smith and
Wesson or a Beretta. The surveillance conducted could not give the NBI
agents a close view of the weapons being transported or brought to the
premises to be searched. Thus, they could not be expected to know the
detailed particulars of the objects to be seized. Consequently, the list
submitted in the applications for subject search warrants should be adjudged
in substantial compliance with the requirements of law.

Petitioners contend that the searching agents grossly violated the procedure
in enforcing the search warrants in question. The petition avers supposedly
reprehensible acts perpetrated by the NBI agents. Among the irregularities
alluded to, are:

1. "The raiding team failed to perform the following before breaking into
the premises:

a. Properly identify themselves and showing necessary credentials

including presentation of the Search Warrants;

b. Furnishing of Search Warrants and allowing the occupants of the

place to scrutinize the same;

c. Giving ample time to the occupants to voluntarily allow the

raiders entry into the place and to search the premises.

2. The team entered the premises by climbing the fence and by forcing
open the main door of the house.

3. Once inside the house, the raiders herded the maids and the sixteen
year-old son of defendant Kho into the dining room where they were
confined for the duration of the raid. In the case of the son, he was
gagged with a piece of cloth, his hands were tied behind his back and
he was made to lie face down.

4. Defendant Kho's hands were immediately tied behind his back (initially
with a rag and later with the electric cord of a rechargeable lamp) and
was restrained in a kneeling position with guns pointed at him
throughout the duration of the search. It was only after the search was
completed and the seized items stuffed in carton boxes (and a T-bag)
that his hands were untied so he can sign the search warrants which
he was forced to do.

5. All throughout the search, defendant Kho and his companions were
kept in the dining room and continuously intimidated of being shot
while the raiders search all the rooms all by themselves and without
anybody seeing whatever they were doing."

The question of whether there was abuse in the enforcement of the

challanged search warrants is not within the scope of a Motion to Quash. In
a Motion to Quash, what is assailed is the validity of the issuance of the
warrant. The manner of serving the warrant and of effecting the search are
not an issue to be resolved here. As aptly opined and ruled by the
respondent Judge, petitioners have remedies under pertinent penal, civil and
administrative laws for their problem at hand, which cannot be solved by
their present motion to quash.

According to petitioner Kho, the premises searched and objects seized

during the search sued upon belong to the Economic Intelligence and
Investigation Bureau (EIIB) of which he is an agent and therefore, the NBI
agents involved had no authority to search the aforesaid premises and to
confiscate the objects seized.

Whether the places searched and objects seized are government properties
are questions of fact outside the scope of the petition under consideration.
The Court does not see its way clear to rule on such issues lest it preempts
the disposition of the cases filed by the respondent NBI against the herein
petitioners.

Considering that cases for Illegal Possession of Firearms and Explosives and
Violation of Section 3 in relation to Section 14 of Republic Act No. 6539,
otherwise known as the Anti-Carnapping Act of 1972, have been instituted
against the petitioners, the petition for mandamus with preliminary and
mandatory injunction to return all objects seized and to restrain respondent
NBI from using the said objects as evidence, has become moot and
academic.

WHEREFORE, for want of merit and on the ground that it has become moot
and academic, the petition at bar is hereby DISMISSED. No pronoucement
as to costs.

SO ORDERED.

Davide, Jr., C.J., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza,
Panganiban, Quisumbing, Pardo, Buena, Gonzaga-Reyes, and Ynares-
Santiago, JJ., concur.

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5. People v. Salanguit, 408 Phil. 817, (G.R. Nos. 133254-55, April 19,
2001)

408 Phil. 817

 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.:

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.

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, Dasmariñas, 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. Español.

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]

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

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:

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. ESPAÑOL

                                                                                                   J u d g e

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 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?
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 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.

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 ¾ 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 ¾ 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.

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 depostion, 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.

Third.  Accused-appellant claims that undue and unnecessary force was

employed by the searching party in effecting the raid.

Rule 126, §7 of the Revised Rules on Criminal Procedure [42] provides:

Right to break door or window to effect search. ¾ The officer, if refused

admittance to the place of directed search after giving notice of his purpose
and authority, may break open any outer or inner door or window of a house
or any part 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.  However, the confiscation of the 1,254 grams of marijuana, as
well as the 11.14 grams of methamphetamine hydrochloride, and its
disposition as ordered by the trial court is AFFIRMED.

SO ORDERED.

Bellosillo, (Chairman), Quisumbing, Buena, and De Leon, Jr., JJ., concur.

[1]
Per Judge Lucas P. Bersamin.

[2]
Rollo, p. 13.

[3]
Id., p. 14.

[4]
RTC Records (Criminal Case No. Q-95-64358), p. 50.

[5]
RTC Records for Search Warrant No. 160, "A," p. 4.

[6]
TSN, p. 4, Oct.  29, 1996.

[7]
Id., pp. 5-6.

[8]
Id., p. 6.
[9]
TSN, p. 22, June 9, 1997.

[10]
Id., p. 7.

[11]
RTC Records (Crim. Case No. Q-95-64358),  p. 10.

[12]
TSN, June 9, 1997, p. 8.

[13]
Id., p. 9.

[14]
Decision, p.3; Rollo, p. 24.

[15]
TSN, pp. 1-4, Nov. 24, 1997.

[16]
Id., pp. 5-6.

[17]
Id., p. 9.

[18]
Id.

[19]
TSN, Oct. 6, 1997.

[20]
Rollo, pp. 40-41.

[21]
Formerly Rule 126, §3 of the 1985 Rules on Criminal Procedure.

[22]
Nolasco v. Paño, 139 SCRA 152 (1985) citing Mata v. Bayona, 128 SCRA
388 (1984).

[23]
Rollo, p. 29.

[24]
RTC Records for Proceedings of Search Warrant No. 160, p. 5.

[25]
55 Cal.2d 789, 13 Cal.Rptr. 415, 362 P.2d 47 (1961) cited in WAYNE R.
LAFAVE, SEARCH AND SEIZURE, A TREATISE ON THE FOURTH AMENDMENT
258 (2d ed. 1987).

[26]
LAFAVE, supra at 28.

[27]
SEC. 8, Possession or Use 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 possess or use any prohibited drug subject to the provisions of
Section 20 hereof.

SEC. 16.  Possession or Use of Regulated Drugs. - The penalty of reclusion

perpetua to death and 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.  (As amended by Sec. 16, RA No.
7659).
[28]
Olaes v. People, 155 SCRA 486, 490-491 (1987).

[29]
223 SCRA 174 (1993).

[30]
Id., pp. 184-185.

[31]
Prudente v. Dayrit, 180 SCRA 69 (1989).

[32]
Appellee's Brief, pp. 8-9; Rollo, pp. 140-141.

[33]
Prudente v. Dayrit, supra.

[34]
Commonwealth v. Todisco, Mass., 294 N.E. 2d 860 (1973).

[35]
People v. Musa, 217 SCRA 597 (1993) citing Harris v. United States, 390
U.S. 234, 19 L.Ed. 2d 1067 (1968).

[36]
People v. Musa, supra citing Coolidge v. New Hampshire, 403 U.S. 433,
29 L. Ed. 2d 564 (1971).

[37]
Coolidge v. New Hampshire, supra.

[38]
People v. Musa, supra, citing Robbins v. California, 453 U.S. 420, 69 L.
Ed. 2d 744 (1981).

[39]
Supra.

[40]
Id., p. 612.

[41]
Nolasco v. Paño, supra.

[42]
Formerly Rule 126, §6 of the 1985 Rules on Criminal Procedure.

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6. Paper Industries v. Asuncion, 307 SCRA 253

366 Phil. 717

THIRD DIVISION
 [ G.R. No. 122092, May 19, 1999 ]

PAPER INDUSTRIES CORPORATION OF THE PHILIPPINES, EVARISTO

M. NARVAEZ JR., RICARDO G. SANTIAGO, ROBERTO A. DORMENDO,
REYDANDE D. AZUCENA, NICEFORO V. AVILA, FLORENTINO M. MULA,
FELIX O. BAITO, HAROLD B. CELESTIAL, ELMEDENCIO C. CALIXTRO,
CARLITO S. LEGACION, ALBINO T. LUBANG, JEREMIAS I. ABAD AND
HERMINIO V. VILLAMIL, PETITIONERS, VS. JUDGE MAXIMIANO C.
ASUNCION, PRESIDING JUDGE, BRANCH 104, REGIONAL TRIAL
COURT OF QUEZON CITY; STATE PROSECUTOR LEO B. DACERA III;
AND THE SPECIAL OPERATIONS UNIT OF THE PNP TRAFFIC
MANAGEMENT COMMAND, RESPONDENTS.

DECISION

PANGANIBAN, J.:
To preserve and to uphold the constitutional right against unreasonable searches
and seizures, the requisites for the issuance of a search warrant must be followed
strictly. Where the judge fails to personally examine the applicant for a search
warrant and the latter's witnesses, or where the witnesses testify on matters not of
their own personal knowledge, the search warrant must be struck down.
The Case

Before us is a Petition for Certiorari and Prohibition[1] praying for (1) the
nullification of Search Warrant No. 799 (95) and the Orders dated March 23, 1993
and August 3, 1995, issued by the Regional Trial Court (RTC), Branch 104, of
Quezon City;[2] and (2) the issuance of a temporary restraining order (TRO) or an
injunction against State Prosecutor Leo B. Dacera III, ordering him to desist from
proceeding with IS No. 95-167.

In its October 23, 1995 Resolution,[3] this Court issued the TRO prayed for and
required the respondents to comment on the said Petition. On December 20, 1995,
Respondent PNP Traffic Management Command filed its 31-page Opposition[4] to
the Petition, together with 90 pages of annexes.[5] On February 22, 1996, the
Office of the Solicitor General filed its Comment[6] agreeing with petitioners that
the writs prayed for must be granted. After petitioners filed a Reply to the
Opposition, the Court gave due course to the Petition and required the parties to
submit their respective memoranda.

In view of the contrary opinion of the Office of the Solicitor General, the Court, in
its February 5, 1997 Resolution,[7] required State Prosecutor Leo B. Dacera to
prepare the memorandum for the public respondents. After issuing a show-cause
order to Dacera on June 23, 1997,[8] the Court in its September 24, 1997
Resolution gave him a non-extendible period ending on October 31, 1997 within
which to file the required memorandum. In view of Dacera's manifestation that he
was only a nominal party and that he had yet to receive the records of the case
from the PNP, the Court, in its December 8, 1999 Resolution, ordered the Special
Operations Unit (SOU) of the PNP Traffic Management Command to file its
memorandum within thirty days from notice; "otherwise, the petition will be
deemed submitted for decision."[9] Even after the expiration of the said period, the
required pleading was not yet received by this Court.

Hence, this Court considered Respondent SOU's refusal/failure to submit its

memorandum as a waiver of its privilege to do so.
The Facts

On January 25, 1995, Police Chief Inspector Napoleon B. Pascua applied for a
search warrant before the said RTC of Quezon City, stating:[10]

"1. That the management of Paper Industries Corporation of the

Philippines, located at PICOP compound, Barangay Tabon, Bislig,
Surigao del Sur, represented by its Sr. Vice President Ricardo G[.]
Santiago, is in possession or ha[s] in [its] control high powered
firearms, ammunitions, explosives, which are the subject of the
offense, or used or intended to be used in committing the offense,
and which xxx are [being kept] and conceal[ed] in the premises
herein described.

"2. That a Search Warrant should be issued to enable any agent of

the law to take possession and bring to this Honorable Court the
following described properties:

'Seventy (70) M16 Armalite rifles cal. 5.56, ten (10) M16 US rifles,
two (2) AK-47 rifle[s], two (2) UZI submachinegun[s], two (2)
M203 Grenade Launcher[s] cal.40mm, ten (10) cal.45 pistol[s], ten
(10) cal.38 revolver[s], two (2) ammunition reloading machine[s],
assorted ammunitions for said calibers of firearms and ten (10)
handgrenades.'

Attached to the application[11] were the joint Deposition of SPO3 Cicero S. Bacolod
and SPO2 Cecilio T. Morito,[12] as well as a summary of the information and the
supplementary statements of Mario Enad and Felipe Moreno.

After propounding several questions to Bacolod, Judge Maximiano C. Asuncion

issued the contested search warrant,[13] the pertinent portion of which reads:

"It appearing to the satisfaction of the undersigned, after

examining under oath, SPO3 Cicero S. Bacolod, that there is
probable cause to believe that the management of Paper Industries
Corporation of the Philippines, located at PICOP Compound,
Barangay Tabon, Bislig, Surigao del Sur, represented by its Sr. Vice
President Ricardo G. Santiago, has in its possession or control the
following:

Seventy (70) M16 Armalite rifles cal. 5.56

Ten (10) M14 US rifles
Two (2) AK-47 rifle[s]
Two (2) UZI submachinegun[s]
Two (2) M203 Grenade Launcher[s] cal. 40mm.
Ten (10) cal 45 pistol[s]
Ten (10) cal 38 revolver[s]
Two (2) ammunition reloading machine[s]
Assorted ammunitions for said calibers of firearms
Ten (10) handgrenades
 in violation of the Provisions of PD 1866 (Illegal Possession of
Firearms, Ammunition and Explosives), and the same should be
seized and brought before this Court.

"NOW, THEREFORE, you are hereby authorized to make an

immediate search daytime between 8:00 a.m. [and] 4:00 p.m. of
the aforementioned premises and to seize and bring the articles
above-described and make an immediate return there[of]"[14]

On February 4, 1995, the police enforced the search warrant at the PICOP
compound and seized the following:[15]

SERIAL
MAKE/TYPE CALIBER BRAND
NUMBER
         
01 M16 Rifle 5.56 RP 175636 Elisco
RP 175636
02 M16 Rifle 5.56 Elisco
(Tampered)
03 M16 Rifle 5.56 RP 171702 Elisco
04 M16 Rifle 5.56 Defaced Elisco
RP174253
05 M16 Rifle 5.56 Elisco
(Tampered)
RP173627
06 M16 Rifle 5.56 Elisco
(Tampered)
07 M16 Rifle 5.56 RP171337 Elisco
08 M16 Rifle 5.56 RP171114 Elisco
RP171114
09 M16 Rifle 5.56 Elisco
(Tampered)
RP171167
10 M16 Rifle 5.56 Elisco
(Tampered)
170881
11 M16 Rifle 5.56 Elisco
(Tampered)
12 M16 Rifle 5.56 RP170897 Elisco
13 M16 Rifle 5.56 RP171509 Elisco
(With pending
case-Casaway
Case)
14 M16 Rifle 5.56 RP 171754 Elisco
RP170881
15 M16 Rifle 5.56 Elisco
(Tampered)
16 M16 Rifle 5.56 RP174637 Elisco
17 M16 Rifle 5.56 RP171366 Elisco
RP174637
18 M16 Rifle 5.56 Elisco
(Tampered)
19 M16 Rifle 5.56 RP174610 Elisco
RP171367
20 M16 Rifle 5.56 Elisco
(Tampered)

01 M14Rifle 7.62 1499694 Elisco

02 M14Rifle 7.62 889163 Elisco
01 BAR Cal. 30 865975 Royal
01 Carbine M1 Cal. 30 384181 US Carbin
02 Carbine M1 Cal. 30 998201 US Carbin
 01 Garand M1 Cal. 30 1194008 Springfield
Springfield
02 Garand M1 Cal. 30 3123784
01 Shotgun 12 Gauge H359704 Omega
02 Shotgun 12 Gauge 9211 Homemade
(Paltik)
MAGAZINE
QTY.      
ASSEMBLY
     
01 M16 (long) 29 pcs.      
02 M16 (short) 48 pcs.      
03 Carbine M1 171 pcs.      
04 BAR 19 pcs.      
         
LIVE QTY.
     
AMMUNITION
         
01 M16 2,023 rounds      
276 rounds
03 Carbine M1      
04 M-60 Cal.
1,800 rounds      
7.62
05 M1 Garand 1,278 rounds      
06 Rifle
11 rounds      
Grenade
07 Hand
4 pcs.      
Grenade
         
AMMO DAM POST NO. 24
         
SERIAL
  MAKE/TYPE CALIBER BRAND
NUMBER
         
171425
01. M16 Rifle 5.56 Gyno Corp.
(Tampered)
651
02. Machine Pistol 22 Landmann
(Tampered)
         
MAGAZINE
QTY.      
ASSEMBLY
         
01. M16
3 pcs.      
(short)
02. M16 (long) 1 pc.      
03. M14 8 pcs.      
04. Clip M1
3 pcs.      
Garand
05. Mag Assy.
1 pc.      
Cal .22
         
LIVE
AMMUNITION QTY.      

         
 01. M16 73 rounds      
02. M14 160 rounds      
03. M1 Garand
30 rounds      
Cal .30
04. Rifle
1 round      
Grenade
         
MANAGEMENT INTEL/INVEST UNIT
         
SERIAL
  MAKE/TYPE CALIBER BRAND
NUMBER
         
01. M16 Rifle 5.56 RP 171725 Elisco
RP 170799
02. M16 Rifle 5.56 Elisco
(Tampered)
03. M16 Rifle 5.56 RP 132320 Elisco
04. Machine 9 MM 54887 Intratec
Pistol

05. Three (3) 12 Gauge Surit-Surit (H)

Shotguns
         
MAGAZINE
QTY.      
ASSEMBLY
         
01. M16 (long) 3 pcs.      
02. M16
4 pcs.      
(short)
03. Intratec 1 pc.      
04. US Carbine
2 pcs.      
(defective)
     
LIVE
QTY.      
AMMUNITION
     
01. M16 147 rds.      
02. Cal. 30 5 rounds      
03. 12 gauge
7 rounds      
Shotgun
04. Carbine 5 rounds      
05. Rifle 2 rounds
grenade (AVA-
     
0051-84/0056-
84)
06. 9MM 30 rounds      
         

     

NEW ARMORY POST NO. 16

   
         
 SERIAL
  MAKE/TYPE CALIBER BRAND
NUMBER
         
01. Shotgun 12 Gauge A359910 Armscor
02. Shotgun 12 Gauge A359716 Armscor
03. Shotgun 12 Gauge A359706 Armscor
04. Shotgun 12 Gauge A359707 Armscor
05. Shotgun 12 Gauge 1036847 Armscor
06. Shotgun 12 Gauge A359702 Armscor
07. Shotgun 12 Gauge A359732 Armscor
08. Shotgun 12 Gauge A359728 Armscor
09. Shotgun 12 Gauge A359708 Armscor
Armscor
10. Shotgun 12 Gauge A359711
11. Shotgun 12 Gauge A359723 Armscor
12. Shotgun 12 Gauge A359713 Armscor
13. Shotgun 12 Gauge 1031271 Armscor
14. Shotgun 12 Gauge A262338 SB
15. Shotgun 12 Gauge A261619 SB
16. Shotgun 12 Gauge Defaced Not Indicated
         
LIVE
QTY.      
AMMUNITION
         
01. 12 GAUGE
306 rds.      
shotgun
02. M16 2,349 rds.      
         
MAGAZINE
QTY.      
ASSEMBLY
         
01. Carbine
76 pcs.      
(defective)
02. Cal. 22
16 pcs.      
-do-
03. M16 (long-
2 pcs.      
defective)
04. M16
(short- 2 pcs.      
defective)
05. Thompson
8 pcs.      
(defective)
06. Shotgun
17 pcs.
12 Gauge      
(defective)
07. BAR
2 pcs.      
(defective)
Believing that the warrant was invalid and the search unreasonable, the petitioners
filed a "Motion to Quash"[16] before the trial court. Subsequently, they also filed a
"Supplemental Pleading to the Motion to Quash" and a "Motion to Suppress
Evidence."[17]

On March 23, 1995, the RTC issued the first contested Order which denied
petitioners' motions.[18] On August 3, 1995, the trial court rendered its second
contested Order[19] denying petitioners' Motion for Reconsideration.[20]

Hence, this recourse to this Court on pure questions of law.

Issues

In their Memorandum, petitioners submit the following grounds in support of their

cause:[21]
"I

Petitioners respectfully submit that Judge Asuncion has committed

grave abuse of discretion or has exceeded his jurisdiction in
refusing to quash Search Warrant No. 799(95). Probable cause
[has] not xxx been sufficiently established and partaking as it does
of the nature of a general warrant.

"II

Petitioners respectfully submit that Judge Asuncion has committed

grave abuse of discretion or has exceeded his jurisdiction in
refusing to quash Search Warrant No. 799(95) on the ground that
it was unlawfully served or implemented.

"III

Petitioners respectfully submit that State Prosecutor Dacera is

acting with grave abuse of discretion or exceeding his jurisdiction in
continuing with the proceedings in IS No. 95-167 on the basis of
illegally seized evidence."

In the main, petitioners question the validity of the search warrant. As a

preliminary matter, we shall also discuss respondents' argument that the Petition
should be dismissed for raising factual questions.
This Court's Ruling

The petition is meritorious.

Preliminary Issue:
Alleged Factual Questions

In their Opposition, respondents argue that the Petition should be dismissed for
raising questions of fact, which are not proper in a petition for certiorari under Rule
65. They maintain that the Petition merely assails the "factual basis for the issuance
of the warrant and the regularity of its implementation."[22]

This argument is not convincing. It is settled that "there is a question of fact when
the doubt arises as to the truth or the falsity of alleged facts."[23] In the present
case, petitioners do not question the truth of the facts as found by the judge;
rather, they are assailing the way in which those findings were arrived at, a
procedure which they contend was violative of the Constitution and the Rules of
Court. We agree that the Petition raises only questions of law, which may be
resolved in the present case.
 Main Issue:
Validity of the Search Warrant

The fundamental right against unreasonable searches and seizures and the basic
conditions for the issuance of a search warrant are laid down in Section 2, Article III
of the 1987 Constitution, which reads:

"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." (Emphasis
supplied)

Consistent with the foregoing constitutional provision, Sections 3 and 4, Rule 126 of
the Rules of Court,[24] detail the requisites for the issuance of a valid search
warrant as follows:

"SEC. 3. Requisite for issuing search warrant. -- A search warrant

shall not issue but 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."

"SEC. 4. Examination of complainant; record. -- The judge must,

before issuing the warrant, personally examine in the form of
searching questions and answers, in writing and under oath the
complainant and any witnesses he may produce on facts
personally known to them and attach to the record their sworn
statements together with any affidavits submitted."

More simply stated, the requisites of a valid search warrant are: (1) probable cause
is present; (2) such presence is determined personally by the judge; (3) the
complainant and the witnesses he or she may produce are personally examined by
the judge, in writing and under oath or affirmation; (4) the applicant and the
witnesses testify on facts personally known to them; and (5) the warrant
specifically describes the place to be searched and the things to be seized.[25] In
the present case, the search warrant is invalid because (1) the trial court failed to
examine personally the complainant and the other deponents; (2) SPO3 Cicero
Bacolod, who appeared during the hearing for the issuance of the search warrant,
had no personal knowledge that petitioners were not licensed to possess the
subject firearms; and (3) the place to be searched was not described with
particularity.

No Personal Examination of the Witnesses

In his Order dated March 23, 1995, the trial judge insisted that the search warrant
was valid, stating that "before issuing the subject warrant, the court propounded
searching questions to the applicant and the witnesses in order to determine
whether there was probable cause x x x."[26] (Emphasis supplied.) This was
supported by the Opposition to the Motion to Quash, which argued that "it is
erroneous for PICOP to allege that the Honorable Court did not propound searching
questions upon applicant P/Chief Inspector Napoleon Pascua and the witnesses he
produced."[27] The records, however, proclaim otherwise.

As earlier stated, Chief Inspector Pascua's application for a search warrant was
supported by (1) the joint Deposition of SPO3 Cicero S. Bacolod and SPO2 Cecilio T.
Morito, (2) a summary of information and (3) supplementary statements of Mario
Enad and Felipe Moreno. Except for Pascua and Bacolod, however, none of the
aforementioned witnesses and policemen appeared before the trial court. Moreover,
the applicant's participation in the hearing for the issuance of the search warrant
consisted only of introducing Witness Bacolod:[28]

"COURT:
  Where is the witness for this application for search warrant?
   
P/Chief Insp. NAPOLEON PASCUA:
  SPO3 CICERO S. BACOLOD, Your Honor.
   
COURT:
  Swear the witness.
   
STENOGRAPHER: (To the witness)
  Please raise your right hand, sir. Do you swear to tell the truth, the
whole truth and nothing but the truth before this Court?
   
WITNESS:
  Yes Ma'am.
   
STENOGRAPHER:
  Please state your name, age, civil status, occupation, address and other
personal circumstances.
   
WITNESS:
  SPO3 Cicero S. Bacolod, 42 years old, married, policeman, c/o Camp
Crame, Quezon City, SOU, TMC.
   
  x x x x x x x x x"
Chief Inspector Pascua was asked nothing else, and he said nothing more. In fact,
he failed even to affirm his application. Contrary to his statement, the trial judge
failed to propound questions, let alone probing questions, to the applicant and to
his witnesses other than Bacolod (whose testimony, as will later be shown, is also
improper). Obviously, His Honor relied mainly on their affidavits. This Court has
frowned on this practice in this language:

"Mere affidavits of the complainant and his witnesses are thus not
sufficient. The examining Judge has to take depositions in writing
of the complainant and the witnesses he may produce and attach
them to the record. Such written deposition is necessary in order
that the Judge may be able to properly determine the existence or
non-existence of the probable cause, to hold liable for perjury the
person giving it if it will be found later that his declarations are
false.
 xxxxxxxxx

"It is axiomatic that the examination must be probing and

exhaustive, not merely routinary or pro-forma, if the claimed
probable cause is to be established. The examining magistrate
must not simply rehash the contents of the affidavit but must make
his own inquiry on the intent and justification of the
application."[29]

Bacolod's Testimony Pertained Not to

Facts Personally Known to Him

Bacolod appeared during the hearing and was extensively examined by the judge.
But his testimony showed that he did not have personal knowledge that the
petitioners, in violation of PD 1866, were not licensed to possess firearms,
ammunitions or explosives. In his Deposition, he stated:

"Q How do you know that said properties were subject of the offense?
A Sir, as a result of our intensified surveillance and case build up for
several days, we gathered informations from reliable sources that
subject properties [which] are in their possession and control [are] the
herein described properties subject of the offense. (Summary of
Information dtd Oct `94, SS's of Mario Enad and Felipe Moreno both dtd
30 Nov `94 are hereto attached)."[30]
When questioned by the judge, Bacolod stated merely that he believed that the
PICOP security guards had no license to possess the subject firearms. This,
however, does not meet the requirement that a witness must testify on his
personal knowledge, not belief. He declared:

"Q This is an application for Search Warrant against Paper Industries

Corporation located at PICOP Compound, Barangay Tabon, Bislig,
Surigao del Sur. How come that you have knowledge that there are
illegal firearms in that place?
A At Camp Crame, Quezon City, I was dispatched by our Commander to
investigate the alleged assassination plot of Congressman Amante.
 
Q In the course of your investigation, what happened?
A We found out that some of the suspects in the alleged assassination plot
are employees of PICOP.
 
Q Know[ing] that the suspects are employees of PICOP, what did you do?
A We conducted the surveillance in that area inside the compound of
PICOP in Tabon.
 
Q What did you find xxx?
A I found xxx several high-powered firearms.
 
Q How were you able to investigate the compound of PICOP?
A I exerted effort to enter the said compound.
 
Q By what means?
A By pretending to have some official business with the company.
 
Q So, in that aspect, you were able to investigate the compound of PICOP?
A Yes, sir.
 
Q What did you f[i]nd xxxt?
A I found xxx several high-powered firearms being kept in the compound
of PICOP.
 
Q Where are those located?
A Sir, there are firearms kept inside the ammo dam.
 
Q Inside the compound?
A Located inside the compound.
 
Q Then what?
A Others, sir, were kept in the security headquarters or office.
 
Q You mean to say that this Paper Industries Corporation has its own
security guards?
A Yes, they call it Blue Guards.
 
Q You mean to say that their own security guards guarded the PICOP?
A Yes, sir.
 
Q So, it is possible that the firearms used by the security guards are
illegally obtained?
A I believe they have no license to possess high-powered firearms.
As far as the verification at FEU, Camp Crame, [is concerned,] they have
no license. (Emphasis supplied.)
 
Q Have you investigated the Blue Guards Security Agency?
A I conducted the inquiry.
 
Q What did you find out?
A They are using firearms owned by PICOP.
 
Q Using firearms owned by PICOP?
A Yes, sir.
 
Q You mean to say that this Blue Guard Security Agency has no firearms of
their own?
A No high-powered firearms.
 
Q By the way, Mr. Witness, what kind of firearms have you seen inside the
compound of PICOP?
A There are M-16 armalite rifles.
 
Q What else?

A AK-47, armalites, M-203 Grenade Launcher, M-14 US rifles, .38 caliber

revolvers, .45 caliber pistols, several handgrenades and ammos."[31]
(Emphasis supplied)
Moreover, Bacolod failed to affirm that none of the firearms seen inside the PICOP
compound was licensed. Bacolod merely declared that the security agency and its
guards were not licensed. He also said that some of the firearms were owned by
PICOP. Yet, he made no statement before the trial court that PICOP, aside from the
security agency, had no license to possess those firearms. Worse, the applicant and
his witnesses inexplicably failed to attach to the application a copy of the
aforementioned "no license" certification from the Firearms and Explosives Office
(FEO) of the PNP, or to present it during the hearing. Such certification could have
been easily obtained, considering that the FEO was located in Camp Crame where
the unit of Bacolod was also based. In People v. Judge Estrada,[32] the Court held:

"The facts and circumstances that would show probable cause must
be the best evidence that could be obtained under the
circumstances. The introduction of such evidence is necessary in
cases where the issue is the existence of the negative ingredient of
the offense charged - for instance, the absence of a license
required by law, as in the present case - and such evidence is
within the knowledge and control of the applicant who could easily
produce the same. But if the best evidence could not be secured at
the time of the application, the applicant must show a justifiable
reason therefor during the examination by the judge."

Particularity of the
Place to Be Searched

In view of the manifest objective of the constitutional safeguard against

unreasonable search, the Constitution and the Rules limit the place to be searched
only to those described in the warrant.[33] Thus, this Court has held that "this
constitutional right [i]s 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."[34] Additionally, the requisite of
particularity is related to the probable cause requirement in that, at least under
some circumstances, the lack of a more specific description will make it apparent
that there has not been a sufficient showing to the magistrate that the described
items are to be found in a particular place.[35]

In the present case, the assailed search warrant failed to describe the place with
particularity. It simply authorizes a search of "the aforementioned premises," but it
did not specify such premises. The warrant identifies only one place, and that is the
"Paper Industries Corporation of the Philippines, located at PICOP Compound,
Barangay Tabon, Bislig[,] Surigao del Sur." The PICOP compound, however, is
made up of "200 offices/buildings, 15 plants, 84 staff houses, 1 airstrip, 3
piers/wharves, 23 warehouses, 6 POL depots/quick service outlets and some 800
miscellaneous structures, all of which are spread out over some one hundred fifty-
five hectares."[36] Obviously, the warrant gives the police officers unbridled and
thus illegal authority to search all the structures found inside the PICOP compound.
[37]

In their Opposition, the police state that they complied with the constitutional
requirement, because they submitted sketches of the premises to be searched
when they applied for the warrant. They add that not one of the PICOP Compound
housing units was searched, because they were not among those identified during
the hearing.[38]
These arguments are not convincing. The sketches allegedly submitted by the
police were not made integral parts of the search warrant issued by Judge
Asuncion. Moreover, the fact that the raiding police team knew which of the
buildings or structures in the PICOP Compound housed firearms and ammunitions
did not justify the lack of particulars of the place to be searched.[39] Otherwise,
confusion would arise regarding the subject of the warrant - the place indicated in
the warrant or the place identified by the police. Such conflict invites uncalled for
mischief or abuse of discretion on the part of law enforcers.

Thus, in People v. Court of Appeals,[40] this Court ruled that the police had no
authority to search the apartment behind the store, which was the place indicated
in the warrant, even if they really intended it to be the subject of their application.
Indeed, the place to be searched cannot be changed, enlarged or amplified by the
police, viz.:

"x x x. 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 the 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 [was] 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 - [was] 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." (Emphasis supplied.)

Seized Firearms and Explosives

Inadmissible in Evidence
As a result of the seizure of the firearms, effected pursuant to Search Warrant No.
799 (95) issued by the respondent judge, the PNP filed with the Department of
Justice a complaint docketed as IS No. 95-167 against herein petitioners for illegal
possession of firearms. State Prosecutor Dacera, to whom the Complaint was
assigned for preliminary investigation, issued a subpoena requiring petitioners to
file their counter-affidavits.

Instead of complying with the subpoena, petitioners asked for the suspension of the
preliminary investigation, pending the resolution of their motion to quash the
search warrant. They argued, as they do now, that the illegally obtained firearms
could not be the basis of the criminal Complaint. Their motion was denied. A
subsequent Motion for Reconsideration met the same fate. In the present Petition
for Certiorari and Prohibition, petitioners assert that "State Prosecutor Dacera
cannot have any tenable basis for continuing with the proceedings in IS No. 95-
167."[41]

Because the search warrant was procured in violation of the Constitution and the
Rules of Court, all the firearms, explosives and other materials seized were
"inadmissible for any purpose in any proceeding."[42] As the Court noted in an
earlier case, the exclusion of unlawfully seized evidence was "the only practical
means of enforcing the constitutional injunction against unreasonable searches and
seizures."[43] Verily, they are the "fruits of the poisonous tree." Without this
exclusionary rule, the constitutional right "would be so ephemeral and so neatly
severed from its conceptual nexus with the freedom from all brutish means of
coercing evidence xxx."[44]

In the present case, the complaint for illegal possession of firearms is based on the
firearms and other materials seized pursuant to Search Warrant No. 799 (95).
Since these illegally obtained pieces of evidence are inadmissible, the Complaint
and the proceedings before State Prosecutor Dacera have no more leg to stand on.

This Court sympathizes with the police effort to stamp out criminality and to
maintain peace and order in the country; however, it reminds the law enforcement
authorities that they must do so only upon strict observance of the constitutional
and statutory rights of our people. Indeed, "there is a right way to do the right
thing at the right time for the right reason."[45]

WHEREFORE, the instant petition for certiorari and prohibition is hereby GRANTED
and Search Warrant No. 799 (95) accordingly declared NULL and VOID. The
temporary restraining order issued by this Court on October 23, 1995 is hereby
MADE PERMANENT. No pronouncement as to costs.

SO ORDERED.

Romero (Chairman), Vitug, and Gonzaga-Reyes, JJ., concur.

Purisima, J., did not participate in the deliberations.

[1] Rollo, pp. 3-41.

[2] Presided by Judge Maximiano C. Asuncion (now deceased).

[3] Rollo, p. 160.

[4] Rollo, pp. 90-220.

[5] Rollo, pp. 221-310.

[6] Rollo, pp. 317-334.

[7] Rollo, p. 377.

[8] Rollo, p. 380.

[9] Rollo, p. 404.

[10] Rollo, p. 55.

[11] See separate folder.

[12] This Court notes that the supposed deposition was not signed by Judge
Asuncion and that the stamp of receipt was not signed by a responsible court
employee.

[13] In their Supplemental Pleading to the Motion to Quash, petitioners questioned

the jurisdiction of the RTC of Quezon City to issue the search warrant to be served
in Mindanao (Rollo, pp. 64-66). Although petitioners did not repeat this argument
before this Court, the trial court's refutation is instructive (Rollo, p. 52). Circular
No. 13, as amended by Circular No. 19, series of 1987, provides that a search
warrant may be served only within the territorial jurisdiction of the court issuing it.
As an exception, however, Supreme Court Administrative Order No. 51-94, dated
August 18, 1994, authorized respondent judge and, in his absence, Judges Perlita J.
Tria Tirona and Marina Lozada Buzon, all of whom are Quezon City RTC judges, to
act on all applications for search warrant filed by the Philippine National Police with
respect to the crimes of illegal gambling, violation of the Dangerous Drugs Law,
illegal possession of firearms and other "major crimes."

[14] Rollo, p. 45.

[15] Rollo, pp. 47-49.

[16] Rollo, pp. 56-62.

[17] Rollo, pp. 63-68.

[18] Rollo, pp. 51-52.

[19] Rollo, pp. 53-54.

[20] Rollo, pp. 100-106.

[21] Petitioners' Memorandum, p. 21; Rollo, p. 344.

[22] Opposition, p. 11; Rollo, p. 200.

[23] Reyes v. CA, 258 SCRA 658, July 11, 1996, per Romero, J.

[24] As amended in 1988.

[25] Republic v. Sandiganbayan, 255 SCRA 438, 481-482, March 29, 1996.

[26] Rollo, pp. 51-52.

[27] Rollo, p. 88.

[28] TSN, January 25, 1995, p. 2.

[29] Pendon v. Court of Appeals, 191 SCRA 429, 438, November 16, 1990, per
Medialdea, J.; citing Mata v. Bayona, 128 SCRA 388, 391, March 26, 1984; and
Roan v. Gonzales, 145 SCRA 687, 694-695, November 25, 1986.

[30] See page 2 of "Deposition of Witnesses (of Bacolod and Morito)."

[31] TSN, January 25, 1995, pp. 2-7.

[32] GR No. 124461, p. 13, September 25, 1998, per Martinez, J.

[33] See Uy Kheytin v. Villareal, 42 Phil 886, September 21, 1920.

[34] Villanueva v. Querubin, 48 SCRA 345, 350, December 27, 1972, per Fernando,
CJ; cited in People v. Judge Estrada, GR No. 124461, September 25, 1998.

[35] LaFave, Search and Seizure: A Treatise on the Fourth Amendment, 2nd ed.,
Vol. 2, § 4.5, p. 207.

[36] Petition, p. 11; Rollo, p. 13. (Evidenced by a location plan attached as Annex
"C.")

[37] Rollo, pp. 47-49.

[38] Opposition, p. 16; Rollo, p. 205.

[39] Burgos Sr. v. Chief of Staff, 218 Phil. 754 (1984).

[40] GR No. 126379, June 26, 1998, pp. 7-8, per Narvasa, CJ.

[41] Petition, p. 6; Rollo, p. 8.

[42] § 2, Article III of the Constitution.

[43] Stonehill v. Diokno, 20 SCRA 383, 394, June 19, 1967, per Concepcion, CJ.
[44] Ibid., p. 395, quoting Mapp v. Ohio, 367 US 643 (1961).

[45] See Separate Opinion in Santiago v. Comelec, 270 SCRA 106, 185, March 19,
1997 as well as in PIRMA v. Comelec, GR No. 129754, September 23, 1997;
footnote no. 107, Panganiban, Battles in the Supreme Court, 1998 ed., p. 50.

VI. Warrantless Arrest

1. Sec. 5, Rule 113, Rules of Court

 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.
a. In flagrante arrest (Sec. 5(1), Rule 113)
a.i. People v. Sucro, 195 SCRA 388
a.ii People v. Rodriguez, 205 SCRA 791
a.iii People v. Nuevas, 545 Phil. 356 (G.R. Nos. 133254-55,
February 22, 2007)

a.i. People v. Sucro, 195 SCRA 388

272-A Phil. 362

THIRD DIVISION

[ G.R. No. 93239, March 18, 1991 ]

PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. EDISON

SUCRO, ACCUSED-APPELLANT.

DECISION

GUTIERREZ, JR., J.:

Edison Sucro was charged with and convicted of violation of Section 4,

Article II of the Dangerous Drugs Act, under an Information which reads:

"That on or about the 21st day of March, 1989, in the evening, in the
Poblacion, Municipality of Kalibo, Province of Aklan, Republic of the
Philippines, and within the jurisdiction of this Honorable Court, the above-
named accused, acting as a pusher or broker in the business of selling,
administering, delivery, giving away to another and/or distributing prohibited
drugs, did then and there wilfully, unlawfully and feloniously and without
authority of law have in his possession and control nineteen (19) pieces of
marijuana cigarette sticks and four (4) tea bags of dried marijuana leaves
which were confiscated from him by the police authorities of Kalibo, Aklan,
shortly after having sold one tea bag of dried marijuana leaves to a
customer." (Rollo, p. 9)

Upon arraignment, the accused-appellant, assisted by counsel, entered a

plea of "not guilty" to the offense charged.  Trial ensued and a judgment of
conviction was rendered, the pertinent portion of which reads:

"WHEREFORE, judgment is rendered finding the accused Edison Sucro guilty

of the sale of prohibited drug under Section 4, Article II of the Dangerous
Drug Act, as amended, and sentencing him to suffer the penalty of life
imprisonment, and pay a fine of P20,000, and costs.  He shall be entitled to
full credit in the service of his sentence with the period for which he has
undergone preventive imprisonment to the date of promulgation of this
judgment.  All the items of marijuana confiscated in this case are declared
forfeited in favor of the State." (Rollo, p. 41)

From the foregoing judgment of conviction, accused-appellant interposes

this appeal, assigning, the following as errors allegedly committed by the
court a quo, to wit:

THE LOWER COURT ERRED IN ADMITTING AS EVIDENCE FOR THE

PROSECUTION EXHIBITS "E" - "E-4", TEA BAGS OF ALLEGED MARIJUANA,
TO BE THE CORPUS DELICTI; FURTHERMORE, THAT THE SAME WERE TAKEN
WITHOUT THE REQUIRED WARRANT OF SEARCH AND ARREST SINCE THE
ACCUSED WAS NOT IN THE ACT OF COMMITTING ANY OFFENSE AT THE
TIME OF HIS ARREST.

II

THE LOWER COURT ERRED IN FINDING THE ACCUSED EDISON SUCRO

GUILTY OF THE SALE OF PROHIBITED DRUGS UNDER SECTION 4, ARTICLE
II, OF THE DANGEROUS DRUGS ACT AND SENTENCING HIM TO SUFFER A
PENALTY OF LIFE IMPRISONMENT AND TO PAY A FINE OF P20,000.00. 
(Appellant's Brief, p. 1)

The antecedent facts of the case as summarized by the Solicitor General are
as follows:

"On March 21, 1989, Pat. Roy Fulgencio, a member of the INP, Kalibo,

Aklan, was instructed by P/Lt. Vicente Seraspi, Jr. (Station Commander of
the INP Kalibo, Aklan) to monitor the activities of appellant Edison Sucro,
because of information gathered by Seraspi that Sucro was selling
marijuana.  (p. 6, TSN, May 2, 1989)

As planned, at about 5:00 P.M. on said date, Pat. Fulgencio positioned

himself under the house of a certain Arlie Regalado at C. Quimpo Street. 
Adjacent to the house of Regalado, about 2 meters away, was a chapel. 
Thereafter, Pat. Fulgencio saw appellant enter the chapel, taking something
which turned out later to be marijuana from the compartment of a cart
found inside the chapel, and then return to the street where he handed the
same to a buyer, Aldie Borromeo.  After a while appellant went back to the
chapel and again came out with marijuana which he gave to a group of
persons.  (pp. 6-8, 15-18, ibid)  It was at this instance that Pat. Fulgencio
radioed P/Lt. Seraspi and reported the activity going on.  P/Lt. Seraspi
instructed Pat. Fulgencio to continue monitoring developments.  At about
6:30 P.M., Pat. Fulgencio again called up Seraspi to report that a third buyer
later identified as Ronnie Macabante, was transacting with appellant. 
(pp. 18-19, ibid)

At that point, the team of P/Lt. Seraspi proceeded to the area and while the
police officers were at the Youth Hostel at Maagma St., Pat. Fulgencio told
P/Lt. Seraspi to intercept Macabante and appellant.  P/Lt. Seraspi and his
team caught up with Macabante at the crossing of Mabini and Maagma Sts.
in front of the Aklan Medical Center.  Upon seeing the police, Macabante
threw something to the ground which turned out to be a tea bag of
marijuana.  (pp. 6-8, TSN, June 19, 1989) When confronted, Macabante
readily admitted that he bought the same from appellant (Edison Sucro) in
front of the chapel.  (p. 6, TSN, May 24, 1989) The police team was able to
overtake and arrest appellant at the corner of C. Quimpo and Veterans Sts. 
The police recovered 19 sticks and 4 teabags of marijuana from the cart
inside the chapel and another teabag from Macabante.  The teabags of
marijuana were sent to the PC-INP Crime Laboratory Service, at Camp
Delgado, Iloilo City for analysis.  The specimens (Exhibits "G" to "G-18",
Exhibits "E" to "E-4") were all found positive of marijuana.  (pp. 4-7, TSN,
Sept. 4, 1989)" (Appellee's Brief, pp. 3-6)

As can be seen from the facts, the issue hinges mainly on whether or not the
arrest without warrant of the accused is lawful and consequently, whether or
not the evidence resulting from such arrest is admissible.

We rule in the affirmative.

The accused-appellant contends that his arrest was illegal, being a violation
of his rights granted under Section 2, Article III of the 1987 Constitution. 
He stresses that there was sufficient time for the police officers to apply for
a search and arrest warrants considering that Fulgencio informed his Station
Commander of the activities of the accused two days before March 21, 1989,
the date of his arrest.

This contention is without merit.

Section 5, Rule 113 of the Rules on Criminal Procedure provides for the
instances where arrest without warrant is considered lawful.  The rule
states:

"Arrest without warrant, when lawful. - A peace officer or 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 personal
knowledge of facts indicating that the person to be arrested has committed
it;" (Underscoring supplied)

An offense is committed in the presence or within the view of an officer,

within the meaning of the rule authorizing an arrest without a warrant, when
the officer sees the offense, although at a distance, or hears the
disturbances created thereby and proceeds at once to the scene thereof.  (U.
S. v. Fortaleza, 12 Phil. 472 [1909]; and U. S. v. Samonte, 16 Phil. 516
[1910])

The records show that Fulgencio went to Arlie Regalado's house at C.

Quimpo Street to monitor the activities of the accused who was earlier
reported to be selling marijuana at a chapel two (2) meters away from
Regalado's house.
Fulgencio, within a distance of two meters saw Sucro conduct his nefarious
activity.  He saw Sucro talk to some persons, go inside the chapel, and
return to them and exchange some things.  These, Sucro did three times
during the time that he was being monitored.  Fulgencio would then relay
the on-going transaction to P/Lt. Seraspi.

Anent the second requirement, the fact that Macabante, when intercepted by
the police, was caught throwing the marijuana stick and when confronted,
readily admitted that he bought the same from accused-appellant clearly
indicates that Sucro had just sold the marijuana stick to Macabante, and
therefore, had just committed an illegal act of which the police officers had
personal knowledge, being members of the team which monitored Sucro's
nefarious activity.

The court earlier indicated in the case of People v. Bati (G. R. No. 87429,

August 27, 1990) that police officers have personal knowledge of the actual
commission of the crime when it had earlier conducted surveillance activities
of the accused.  Thus, it stated:

"When Luciano and Caraan reached the place where the alleged transaction
would take place and while positioned at a street corner, they saw appellant
Regalado Bati and Warner Marquez by the side of the street about forty to
fifty meters away from them (the public officers).  They saw Marquez giving
something to Bati, who, thereafter handed a wrapped object to Marquez who
then inserted the object inside the front of his pants in front of his abdomen
while Bati, on his part, placed the thing given to him inside his pocket (p. 2)

xxx                   xxx                   xxx

x x x Both Patrolman Luciano and Caraan actually witnessed the same and

their testimonies were based on their actual and personal knowledge of the
events that took place leading to appellant's arrest.  They may not have
been within hearing distance, specially since conversation would expectedly
be carried on in hushed tones, but they were certainly near enough to
observe the movements of the appellant and the buyer.  Moreover, these
prosecution witnesses are all law enforcers and are, therefore, presumed to
have regularly performed their duties in the absence of proof to the contrary
(People v. Bati, supra citing People v. Agapito, G. R. No. 73786, October 12,
1987)

The accused questions the failure of the police officers to secure a warrant
considering that Fulgencio himself knew of Sucro's activities even prior to
the former's joining the police force.  Fulgencio reported Sucro's activities
only three days before the incident.

As the records reveal, Fulgencio and Sucro had known each other since their
childhood years and that after Fulgencio joined the police force, he told the
accused-appellant not to sell drugs in their locality.  Hence, it is possible that
because of this friendship, Fulgencio hesitated to report his childhood friend
and merely advised him not to engage in such activity.  However, because of
reliable information given by some informants that selling was going on
everyday, he was constrained to report the matter to the Station
Commander.

On the other hand, the failure of the police officers to secure a warrant
stems from the fact that their knowledge acquired from the surveillance was
insufficient to fulfill the requirements for the issuance of a search warrant. 
What is paramount is that probable cause existed.  Thus, it has been held in
the case of People v. Lo Ho Wing, et al. (G. R. No. 88017, January
21, 1991):

“In the instant case, it was firmly established from the factual findings of the
trial court that the authorities had reasonable ground to believe that
appellant would attempt to bring in contraband and transport it within the
country.  The belief was based on intelligence reports gathered from
surveillance activities on the suspected syndicate, of which appellant was
touted to be a member.  Aside from this, they were also certain as to the
expected date and time of arrival of the accused from China.  But such
knowledge was clearly insufficient to enable them to fulfill the requirements
for the issuance of a search warrant.  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."

As the Solicitor General has pointed out:

“There are several instances when a warrantless search and seizure can be
effected without necessarily being preceded by an arrest provided the same
is effected on the basis of probable cause (e. g. stop and search without
warrant at checkpoints).  Between warrantless searches and seizures at
checkpoints and in the case at bar the latter is more reasonable considering
that unlike in the former, it was effected on the basis of probable cause. 
Under the circumstances (monitoring of transactions) there existed probable
cause for the arresting officers, to arrest appellant who was in fact selling
marijuana and to seize the contraband."

That searches and seizures must be supported by a valid warrant is not an

absolute rule (Manipon, Jr. v. Sandiganbayan, 143 SCRA 267 [1986]). 
Among the exceptions granted by law is a search incidental to a lawful arrest
under Sec. 12, Rule 126 of the Rules on Criminal Procedure, which provides
that 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.  (People v. Castiller, G. R. No. 87783, August 6,
1990)

The accused-appellant claims that the arrest having been done without
warrant, it follows that the evidence obtained therefrom is inadmissible.
As earlier discussed, there is nothing unlawful about the arrest considering
its compliance with the requirements of a warrantless arrest.  Ergo, the
fruits obtained from such lawful arrest are admissible in evidence.

Edison Sucro assails the trial court's reliance on the statement of Macabante
whose reason for testifying could be merely to escape prosecution.

We quote the trial court's finding as to the testimony of Macabante:

"The non-filing of a complaint against him for possession of marijuana may

have been the reason of (sic) his willingness to testify in court against the
accused.  But this does not necessarily taint the evidence that proceeds from
his lips.  As explained by Lt. Seraspi, the best sources of information against
drug pushers are usually their customers, especially if as in this case, there
is no other direct evidence of the selling except the testimony of the buyer. 
We accept this observation as a realistic appraisal of a situation in which
drug users are, and should be employed by law enforcement authorities to
bolster the drive against pushers who are the real felons in our society.  We
have observed the demeanor of the witness in court, and found him to be
straightforward, unhesitating, and spontaneous in his declarations, so that
we are satisfied as to his intention and disposition to tell the truth" (Rollo, p.
40)

Time and again it has been held that the findings of the trial court are
entitled to great weight and should not be disturbed on appeal unless it is
shown that the trial court had overlooked certain facts of weight and
importance, it being acknowledged that the court below, having seen and
heard the witnesses during the trial, is in a better position to evaluate their
testimonies (People v. Umali, et al., G. R. No. 84450, February
4, 1991 citing People v. Alvarez, 163 SCRA 745 [1988]; People v. Dorado,
30 SCRA 53 [1969]; and People v. Espejo, 36 SCRA 400 [1970]).

Furthermore, the testimony of Macabante was corroborated on material

points by public officers Fulgencio and Seraspi.

There is nothing in the record to suggest that the police officers were
compelled by any motive than to accomplish their mission to capture a drug
pusher in the execution of the crime, the presumption being that police
officers perform their duties regularly in the absence of any evidence to the
contrary (Rule 131, Sec. 3(m), Revised Rules on Evidence; People v.
Castiller, supra citing People v. Natipravat, 145 SCRA 483 [1986]).

The prosecution evidence was further bolstered by the findings of the

Forensic Chemist that the items seized were all positive for marijuana.

In contrast to the evidence presented by the prosecution, accused-

appellant's defense is alibi which is unavailing considering that he was
positively identified by Macabante to be the person from whom he bought
marijuana.

Sucro alleges that he could not have committed the crime since he was with
his uncle and cousin distributing handbills for his Auntie's candidacy.  The
fact, however, remains that it does not preclude the possibility that he was
present in the vicinity as established by his admission that he moved a lot
and even had the occasion to meet Macabante on the street.

It is well-settled that mere denials cannot prevail against the positive

identification of the appellant as the seller of the prohibited substances. 
(People v. Khan, 161 SCRA 406 [1988]; and People v. Paco, 170 SCRA 681
[1989])

Premises considered, this Court is convinced that appellant Edison Sucro had
indeed committed the offense charged.  The trial court's decision must be
upheld.

WHEREFORE, the decision appealed from is hereby AFFIRMED.

SO ORDERED.

Fernan, C.J., (Chairman), Feliciano, Bidin, and Davide, Jr., JJ., concur.

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282 PHIL. 829

 SECOND DIVISION

[ G.R. No. 95902, February 04, 1992 ]

PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. DON

RODRIGUEZA, ACCUSED-APPELLANT.

DECISION

REGALADO, J.:

On appeal before us is the decision of the Regional Trial Court of Legaspi

City, Branch 10, finding accused-appellant Don Rodrigueza guilty beyond
reasonable doubt of violating Section 4, Article II of the Dangerous Drugs
Act of 1972 (Republic Act No. 6425, as amended) and sentencing him to
suffer the penalty of life imprisonment and to pay a fine of P20,000.00 and
costs:[1]

However, the Solicitor General, deviating from his conventional stance in the
prosecution of criminal cases, recommends the acquittal of appellant for the
reasons stated in his Manifestation for Acquittal (In Lieu of Appellee's Brief)
filed with the Court. We have reviewed and analyzed the testimonial and
documentary evidence in this case and we find said recommendation to be
well taken.

The information, dated July 10, 1987, charges Don Rodrigueza and his co-
accused, Samuel Segovia and Antonio Lonceras, with allegedly having in
their custody and possession 100 grams of marijuana leaves and for selling,
in a buy-bust operation, said 100 grams of dried marijuana leaves for a
consideration of P200.00.[2]

During the arraignment, all the accused pleaded not guilty to the charge
against them. At the trial, the prosecution and the defense presented several
witnesses after which the court a quo rendered judgment acquitting Samuel
Segovia and Antonio Lonceras but convicting and penalizing herein appellant
as herein-before stated.

The following facts are culled from the decision of the trial court and the
evidence presented by the prosecution.

At around 5:00 o'clock in the afternoon of July 1, 1987, CIC Ciriaco Taduran
was in their headquarters at the Office of the Narcotics Regional Unit at
Camp Bagong Ibalon, Legaspi City, together with S/Sgt. Elpidio Molinawe,
CIC Leonardo B. Galutan and their commanding officer, Major Crisostomo M.
Zeidem, when a confidential informer arrived and told them that there was
an ongoing illegal traffic of prohibited drugs in Tagas, Daraga, Albay. Major
Zeidem formed a team to conduct a buy-bust operation, which team was
given P200.00 in different denominations to buy marijuana. These bills were
treated with ultraviolet powder at the Philippine Constabulary Crime
Laboratory (PCCL). Sgt. Molinawe gave the money to Taduran who acted as
the poseur buyer. He was told to look for a certain Don, the alleged seller of
prohibited drugs. Taduran went to Tagas alone and, while along the road, he
met Samuel Segovia. He asked Segovia where he could find Don and where
he could buy marijuana. Segovia left for a while and when he returned, he
was accompanied by a man who was later on introduced to him as Don,
herein appellant.[3]

After agreeing on the price of P200.00 for 100 grams of marijuana, Don
halted a passing tricycle driven by Antonio Lonceras. He boarded it and left
Taduran and Segovia. When he came back, Don gave Taduran "a certain
object wrapped in a plastic" which was later identified as marijuana, and
received payment therefor. Thereafter, Taduran returned to the
headquarters and made a report regarding his said purchase of marijuana. [4]

Based on that information, Major Zeidem ordered a team to conduct an

operation to apprehend the suspects. In the evening of the same date, CIC
Galutan and S/Sgt. Molinawe proceeded to Regidor Street, Daraga, Albay
and arrested appellant, Antonio Lonceras and Samuel Segovia. The
constables were not, however, armed with a warrant of arrest when they
apprehended the three accused. The arrestees were brought to the
headquarters for investigation.[5]

Thereafter, agents of the Narcotics Command (NARCOM) conducted a raid in

the house of Jovencio Rodrigueza, father of appellant. Taduran did not go
with them. During the raid, they were able to confiscate dried marijuana
leaves and a plastic syringe, among others. The search, however, was not
authorized by any search warrant.[6]

The next day, July 2, 1987, Jovencio Rodrigueza was released from
detention but appellant was detained. An affidavit, allegedly taken from and
executed by him, was sworn to by him before the assistant city prosecutor.
Appellant had no counsel when his sworn statement was taken during that
custodial investigation. The arrestees were also examined by personnel of
the PCCL and were found positive for ultraviolet powder. [7]

The three accused presented different versions of their alleged

participations.

Samuel Segovia testified that he was in their house in the evening of July 1,
1987 listening to the radio. Later, he ate his merienda and then went out to
buy cigarettes from the store. While he was at the store, a jeep stopped
behind him. Several armed men alighted therefrom and ordered him to get
inside the jeep. He refused but he was forced to board the vehicle. He was
even hit by the butt of a gun.[8]

He was thereafter brought to Camp Bagong Ibalon where he was

investigated and was repeatedly asked regarding the whereabouts of
Rodrigueza. He was man-handled by the NARCOM agents and was detained
while inside the camp. He was then made to hold a P10.00 bill treated with
ultraviolet powder. When he was taken to the PCCL and examined, he was
found positive of the ultraviolet powder. He was also made to sign some
papers but he did not know what they were all about.[9]

Appellant, on the other hand, testified that on said date he was in the house
of his aunt in San Roque, Legaspi City. He stayed there overnight and did
not leave the place until the next day when his brother arrived and told him
that their father was taken by some military men the preceding night.
Appellant went to Camp Bagong Ibalon and arrived there at around 8:00
o'clock in the morning of July 2, 1987. When he arrived, he was asked if he
knew anything about the marijuana incident, to which question he answered
in the negative. Like Segovia, he was made to hold a P10.00 bill and was
brought to the crime laboratory for examination. From that time on, he was
not allowed to go home and was detained inside the camp. He was also
tortured in order to make him admit his complicity in the alleged sale of
marijuana.[10]

In the assignment of errors in his brief, appellant contends that the trial
court erred in (1) admitting in evidence the sworn statement of appellant
which was obtained in violation of his constitutional rights; (2) convicting
appellant of the crime charged despite the fact that the 100 grams of dried
marijuana leaves allegedly bought from him were not properly identified; (3)
convicting appellant of the crimed charged despite the fact that the evidence
for the prosecution is weak and not convincing; and (4) finding appellant
guilty beyond reasonable doubt of selling or at least acting as broker in the
sale of the 100 grams of marijuana to CIC. Taduran late in the afternoon of
July 1, 1987, despite the failure of the prosecution to prove his guilt beyond
reasonable doubt.[11]

We rule for the appellant and approve the recommendation for his acquittal.
In disposing of this case, however, we feel that the issues raised by
appellant should properly be discussed seriatim.

1. A buy-bust operation is a form of entrapment employed by peace

officers to trap and catch a malefactor in flagrante delicto. [12] Applied
to the case at bar, the term in flagrante delicto requires that the
suspected drug dealer must be caught red-handed in the act of selling
marijuana or any prohibited drug to a person acting or posing as a
buyer.

In the instant case, however, the procedure adopted by the NARCOM

agents failed to meet this qualification. Based on the very evidence of
the prosecution, after the alleged consummation of the sale of dried
marijuana leaves, CIC Taduran immediately released appellant
Rodrigueza instead of arresting and taking him into his custody. This
act of CIC Taduran, assuming arguendo that the supposed sale of
marijuana did take place, is decidedly contrary to the natural course of
things and inconsistent with the aforestated purpose of a buy-bust
operation. It is rather absurd on his part to let appellant escape
without having been subjected to the sanctions imposed by law. It is,
in fact, a dereliction of duty by an agent of the law.

2. The admissibility of the sworn statement allegedly executed by

appellant was squarely placed in issue and, as correctly pointed out by
the defense, said sworn statement is inadmissible in evidence against
appellant.

We have once again to reiterate and emphasize that Article III of the
1987 Constitution provides:

"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 a 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

(3) Any confession or admission obtained in violation of this or section

17 hereof shall be inadmissible in evidence against him."

An examination of said sworn statement shows that appellant was

informed of his constitutional right to remain silent and to be assisted
by counsel during custodial examination. He was also asked if he was
waiving his right to be assisted by counsel and he answered in the
affirmative. However, while the rights of a person under custodial
investigation may be waived, such waiver must be made not only
voluntarily, knowingly and intelligently but also in the presence and
with the assistance of counsel.[13] In the present case, the waiver made
by appellant being without the assistance of counsel, this omission
alone is sufficient to invalidate said sworn statement. [14]

3. Corollary to this, we take cognizance of the error of the trial court in

admitting in evidence against appellant the articles allegedly
confiscated during the raid conducted in the house of Jovencio
Rodrigueza.

As provided in the present Constitution, a search, to be valid, must

generally be authorized by a search warrant duly issued by the proper
government authority.[15] True, in some instances, this Court has
allowed government authorities to conduct searches and seizures even
without a search warrant. Thus, when the owner of the premises
waives his right against such incursion[16] ; when the search is
incidental to a lawful arrest[17] ; when it is made on vessels and aircraft
for violation of customs laws[18] ; when it is made on automobiles for
the purpose of preventing violations of smuggling or immigration
laws[19] ; when it involves prohibited articles in plain view [20] ; or in
cases of inspection of buildings and other premises for the
enforcement of fire, sanitary and building regulations, [21] a search may
be validly made even without a search warrant.

In the case at bar, however, the raid conducted by the NARCOM

agents in the house of Jovencio Rodriqueza was not authorized by any
search warrant. It does not appear, either, that the situation falls
under any of the aforementioned cases. Hence, appellant's right
against unreasonable search and seizure was clearly violated. The
NARCOM agents could not have justified their act by invoking the
urgency and necessity of the situation because the testimonies of the
prosecution witnesses reveal that the place had already been put
under surveillance for quite some time. Had it been their intention to
conduct the raid, then they should, because they easily could, have
first secured a search warrant during that time.
 4. The Court further notes the confusion and ambiguity in the
identification of the confiscated marijuana leaves and other prohibited
drug paraphernalia presented as evidence against appellant.

CIC Taduran, who acted as the poseur buyer, testified that appellant
sold him 100 grams of dried marijuana leaves wrapped in a plastic
bag. Surprisingly, and no plausible explanation has been advanced
therefor, what were submitted to and examined by the PCCL and
thereafter utilized as evidence against the appellant were the following
items:

"One (1) red and white colored plastic bag containing the following:

Exh. 'A' - Thirty (30) grams of suspected dried marijuana fruiting tops
contained inside a transparent plastic bag.

Exh. 'B' - Fifty (50) grams of suspected dried marijuana leaves and
seeds contained inside a white colored plastic labelled 'Robertson'.

Exh. 'C' - Four (4) aluminum foils each containing suspected dried
marijuana fruiting tops having a total weight of seven grams then
further wrapped with a piece of aluminum foil.

Exh. 'D' - Five (5) small transparent plastic bags each containing
suspected dried marijuana fruiting tops having a total weight of
seventeen grams.

Exh. 'E' - One plastic syringe."[22]

Evidently, these prohibited articles were among those confiscated

during the so-called follow-up raid in the house of Jovencio
Rodrigueza. The unanswered question then arises as to the identity of
the marijuana leaves that became the basis of appellant's conviction.
[23]
 In People vs. Rubio,[24] this Court had the occasion to rule that the
plastic bag and the dried marijuana leaves contained therein
constitutes the corpus delicti of the crime. As such, the existence
thereof must be proved with certainty and conclusiveness. Failure to
do so would be fatal to the cause of the prosecution.

5. It is accepted that, as a rule, minor inconsistencies in the testimony of

a witness will not affect his credibility. It even enhances such
credibility because it only shows that he has not been rehearsed.
[25]
 However, when the inconsistencies pertain to material and crucial
points, the same detract from his overall credibility.

The exception, rather than the rule, applies in the case at bar. As correctly
pointed out by the Solicitor General, the testimonies of the prosecution
witnesses are tainted with serious flaws and material inconsistencies
rendering the same incredible.[26]

CIC Taduran, in his testimony, said that they had already been conducting
surveillance of the place where the buy-bust operation was to take place. It
turned out, however, that he did not even know the exact place and the
identity of the person from whom he was to buy marijuana leaves. Thus:
"FISCAL TOLOSA

Q What place in Tagas were you able to go (to)?

WITNESS

A I am not actually familiar in (sic) that place, in Tagas, although we

occasionally passed there.

Q Now, upon your arrival in Tagas, what did you do that afternoon?
A I waited for the suspect because previously, we have already been
conducted (sic) surveillance (sic) in the vicinity.

Q Upon arrival in Tagas, were you able to see the suspect?

A By the road, sir.

Q Who was the first person did you see (sic) when you arrived at Tagas?
A The first person whom I saw is Samuel Segovia.

Q Were you able to talk with this Samuel Segovia?

A According to him, we could get some."[27]

The same findings go for the testimony of witness Galutan. In his direct
examination, he declared that they arrested the three accused all at the
same time on the fateful night of July 1, 1987. But in his cross-examination
and as corroborated by the Joint Affidavit of Arrest[28] submitted by him and
Molinawe, it appeared that Lonceras and Segovia were arrested on different
times and that appellant Don Rodrigueza was not among those who were
arrested. Instead, it was Jovencio Rodrigueza, Don's father, who was picked
up at a much later time.

With said inconsistencies in sharp focus, we are constrained to give more

credibility to the testimony of appellant Rodrigueza. While it is true that
appellant's defense amounts to an alibi, and as such is the weakest defense
in a criminal prosecution, there are, nonetheless, some evidentiary aspects
pointing to the truth in his testimony. Firstly, the Joint Affidavit of Arrest
corroborates his testimony that he was not among those who were arrested
on the night of July 1, 1987. His co-accused Segovia also testified that
appellant Rodrigueza was not with them when they were apprehended by
the NARCOM agents.

Secondly, the apparent motive of the NARCOM agents in prosecuting the

accused was also revealed during the trial of the case. Rebuttal witnesses
Gracita Bahillo, sister of appellant, and Hospicio Segovia, father of Samuel
Segovia, testified that Sgt. Molinawe, who has since been reportedly
dismissed from the service, asked for P10,000.00 from each of them in
exchange for the liberty of the accused.[29] This allegation was never refuted
by the prosecution. Hence, the rule laid down by this Court that the
statements of prosecution witnesses are entitled to full faith and
credit[30] has no application in the case at bar.

Finally, the Court has repeatedly ruled that to sustain the conviction of the
accused, the prosecution must rely on the strength of its own evidence and
not on the weakness of the defense.[31] As clearly shown by the evidence,
the prosecution has failed to establish its cause. It has not overcome the
presumption of innocence accorded to appellant. This being the case,
appellant should not be allowed to suffer for unwarranted and imaginary
imputations against him.

WHEREFORE, the judgment of conviction of the court below is

hereby REVERSED and SET ASIDE and accused-appellant Don Rodrigueza
is hereby ACQUITTED of the crime charged. It is hereby ordered that he be
immediately released from custody unless he is otherwise detained for some
other lawful cause.

SO ORDERED.

Melencio-Herrera, (Chairman), Paras, Padilla, and Nocon, JJ., concur.

[1]
 Original Record, 622.
[2]
 Ibid., 1.
[3]
 TSN, June 14, 1988, 4-14.
[4]
 Ibid., id., 11-15.
[5]
 TSN, March 17, 1988, 8-12.
[6]
 TSN, June 14, 1988, 16.
[7]
 TSN, May 18, 1988, 16-17.
[8]
 TSN, September 6, 1988, 4-7.
[9]
 Ibid., Id., 8-13.
[10]
 TSN, May 23, 1989, 12.
[11]
 Brief for the Appellant, 1.
[12]
 People vs. Del Pilar, 188 SCRA 37 (1990).
[13]
 People vs. Olaes, 188 SCRA 91 (1990); People vs. Hernandez, et al., 162
SCRA 422 (1988).
[14]
 People vs. Nolasco, 163 SCRA 623 (1988).
[15]
 Section 2, Article III, 1987 Constitution.
[16]
 Bagcal vs. Villaraza, 120 SCRA 525 (1983); Callanta vs. Villanueva, et
al., 77 SCRA 377 (1977).
[17]
 Adams vs. Williams, 407 U.S. 143 (1972).
[18]
 Roldan vs. Arca, 65 SCRA 336 (1975).
[19]
 Carroll vs. U.S., 267 U.S. 132 (1925).
[20]
 Harris vs. U.S., 390 U.S. 234 (1968).
[21]
 Camara vs. Municipal Court, 387 U.S. 523 (1967).
[22]
 Exh. "E", Chemistry Report No. D-4387; Original Record, 296.
[23]
 Brief for the Appellant, 17.
[24]
 142 SCRA 329 (1986).
[25]
 People vs. Marcos, 185 SCRA 154 (1990); People vs. Mangalino, 182
SCRA 329 (1990).
[26]
 Manifestation for Acquittal, 18.
[27]
 TSN, June 14, 1988, 9.
[28]
 Original Record, 474.
[29]
 TSN, August 4, 1989, 8-10; September 6, 1989, 9.
[30]
 People vs. Demecillo, 186 SCRA 161, (1990).
[31]
 People vs. Solis, et al., 182 SCRA 182 (1990); People vs. Buenaflor, 181
SCRA 225 (1990).

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a.iii People v. Nuevas, 545 Phil. 356 (G.R. Nos. 133254-55, February 22,
2007)

SECOND DIVISION

[ G.R. NO. 170233, February 22, 2007 ]

THE PEOPLE OF THE PHILIPPINES, APPELLEE, VS. JESUS NUEVAS Y

GARCIA, REYNALDO DIN Y GONZAGA, AND FERNANDO INOCENCIO Y
ABADEOS, APPELLANTS.

DECISION

TINGA, J.:

Jesus Nuevas y Garcia (Nuevas) was charged[1] before the Regional Trial
Court (RTC) of Olongapo City, Branch 75, with illegal possession of
marijuana in 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.

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 Jesus Nuevas (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]

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) n 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 virture thereof.

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, 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 ½ 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 ½ 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;

4. Consented warrantless search;

5. Customs search;

6. Stop and Frisk; and

7. Exigent and emergency circumstances.[36]

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.
[37]

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.[38]

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 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." [41]

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. [42]

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.[46]

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.
xxxx
Q What, exactly, did he tell you in Waray dialect?
A  "Sir Famir[sic], don't charge me, sir[.] I am planning to go home to
Leyte. I was just earning enough money for my fare, sir."
xxxx
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]
xxxx
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.

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?
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:
x x x 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:
x x x In the final analysis, we in the administration of justice would have no
right to expect ordinary people to be law-abiding if we do not insist on the
full protection of their rights. Some lawmen, prosecutors and judges may
still tend to gloss over an illegal search and seizure as long as the law
enforcers show the alleged evidence of the crime regardless of the methods
by which they were obtained. This kind of attitude condones law-breaking in
the name of law enforcement. Ironically, it only fosters the more rapid
breakdown of our system of justice, and the eventual denigration of society.
While this Court appreciates and encourages the efforts of law enforcers to
uphold the law and to preserve the peace and security of society, we
nevertheless admonish them to act with deliberate care and within the
parameters set by the Constitution and the law. Truly, the end never
justifies the means.[59]
WHEREFORE, the Decision dated 4 April 2002 of the Regional Trial Court of
Olongapo City, Branch 75, in Criminal Case 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.

SO ORDERED.

Quisumbing, (Chairperson), Carpio, Carpio-Morales  and Velasco, Jr., JJ.,

concur.

[1]
The Information against Nuevas reads:

CRIMINAL CASE No. 458-97

That on or about the twenty-seventh (27th) day of September, [sic] 1997, in
the City of Olongapo, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, without being lawfully
authorized, did then and there wil[l]fully, unlawfully and knowingly have in
his person, possession and control[,] marijuana dried leaves/fruiting tops
approximately weighing ONE AND ONE-HALF KILOS (1.5) which are
prohibited drugs.

CONTRARY TO LAW. (Records, p. 2)

[2]
Otherwise known as "The Dangerous Drugs Act."

[3]
The Information against Din and Inocencio reads:
CRIMINAL CASE No. 459-97

That on or about the twenty-seventh (27th) day of September, [sic] 1997, in

the City of Olongapo, Philippines, and within the jurisdiction  of this
Honorable Court, the above-named accused, conspiring and confederating
together and mutually helping one another, without being lawfully
authorized, did then and there wil[l]fully, unlawfully and knowingly have in
their persons, possession and control[,] marijuana dried leaves/fruiting tops
approximately weighing TWO AND ONE-HALF KILOS (2.5) which are
prohibited drugs.

CONTRARY TO LAW. (Records, p. 28)

[4]
Records, pp. 16, 54.

[5]
Id. at 219-226; Penned by Honorable Avelino A. Lazo.

[6]
Id. at 226.

[7]
TSN, 3 February 1998, pp. 3-5; TSN, 21 May 1998, pp. 3-6, 8, 10.

[8]
TSN, 21 May 1998, p. 13.

[9]
  TSN, 21 May 1998, pp. 11-15.

[10]
TSN, 23 June 1998, pp. 2-11.

[11]
TSN, 23 June 1998, pp. 12-14.

[12]
TSN, 5 March 1998, p. 11.

[13]
TSN, 2 April 1998, pp. 3-4.

[14]
Id. at 6.

[15]
Id. at  8.

[16]
Id. at  7-8.

[17]
TSN, 17 November 1998, pp. 4-8.

[18]
TSN, 13 July 1999, pp. 5-14.

[19]
TSN, 24 August 1999, pp. 3-15.

[20]
CA rollo, pp. 79-80.

[21]
Id. at  88.

[22]
Id. at  133.
[23]
The docket numbers of the cases when first elevated to the Court.

[24]
G.R. Nos. 147678-87, 7 July 2004, 433 SCRA 640.

[25]
CA rollo, p. 57.

[26]
Id. at 135-143; Penned by Associate Justice Elvi John S. Asuncion with
the concurrence of Associate Justices Hakim S. Abdulwahid and Aurora
Santiago-Lagman.

[27]
Id. at 142-143.

[28]
Rollo, p. 7.

[29]
Id. at  9-10.

[30]
Id. at 13-14.

[31]
Id. at 13.

[32]
Id. at 15-16; Manifestation and Motion dated 28 March 2006.

[33]
CA rollo, p. 72.

[34]
Id. at  61.

[35]
CONST., Art. III, Secs. 2 and 3 (2), which provides:
SEC. 2.  The right of the people to be secured 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. x x x

(2) Any evidence obtained in violation of x x x the preceding section shall be

inadmissible for any purpose in any proceeding.
[36]
People v. Tudtud, 458 Phil. 752, 771 (2003) citing People v. Bolasa,
378 Phil. 1073, 1078-1079 (1999).

[37]
Caballes v. Court of Appeals, 424 Phil. 263, 278 (2002).

[38]
Rollo, p. 10; CA rollo, p. 72.

[39]
Rule 126, Sec. 13, provides:

SEC. 13. Search incidental to a lawful arrest.-A person lawfully

arrested may be searched for dangerous weapons or anything which
may have been used or constitute proof in the commission of an
offense without a search warrant.

[40]
People v. Tudtud, supra note 36.

[41]
Id.

[42]
People v. Doria,  361 Phil. 595, 634-635 (1999).

[43]
TSN,  21 May 1998, p. 8.

[44]
Id. at 13.

[45]
Caballes v. Court of Appeals, supra note 37 at 285.

Rule 113, Sec. 5(a) likewise states:

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; x x x x.

[46]
Caballes v. Court of Appeals, supra note 37 at 286.

[47]
The plastic bag confiscated from Nuevas containing marijuana.

[48]
TSN, 21 May 1998, pp. 5-6.

[49]
Id. at  8.

[50]
TSN, 2 April 1998, p. 6.

[51]
TSN, 21 May 1998, pp. 12-13.

[52]
TSN, 5 March 1998, p. 11.

[53]
Caballes v. Court of Appeals, supra note 37 at 289 citing People v.
Figueroa, G.R. No. 134056, 6 July 2000, 335 SCRA 249, 263.

[54]
228 Phil. 1 (1986).

[55]
Id. at 17.

[56]
People v. Kimura, G.R. No. 130805, 27 April 2004, 428 SCRA 51,
70.

[57]
People v. Bacla-an, 445 Phil. 729, 748 (2003).

[58 ]
Rollo, pp. 8-9.

[59]
People v. Encinada, 345 Phil. 301, 323 (1997) citing People v.
Cuizon, G.R. No. 109287, 18 April 1996, 256 SCRA 325.
 Source: Supreme Court E-Library | Date created: June 06, 2014
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b. Offense has just been committed (Sec. 5(2) Rule 113)

b.i People v. Del Rosario, 365 Phil 291 (G. R No. 127755, April
14, 1999)
b.ii People v. Gerento

b.i People v. Del Rosario, 365 Phil 291 (G. R No. 127755, April 14, 1999)

365 Phil. 292

 EN BANC

[ G.R. No. 127755, April 14, 1999 ]

PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. JOSELITO

DEL ROSARIO Y PASCUAL, ACCUSED-APPELLANT.

DECISION

BELLOSILLO, J.:

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 the
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 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.

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 (1½) 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 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
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
pretest 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.

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 that 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 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 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 the 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 x x x
x
   
Q: What happened after the bag of the lady was grabbed by the 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 x x x x
   
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.
   
Q: What happened to the lady who 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 x x x x
   
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 and a half meter?
   
A: There was a passenger inside the tricycle, sir x x x x
   
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 x x x x
   
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 the gun chased the helper of the deceased going
towards Burgos Avenue, sir.
   
Q: What happen (sic) afterwards?
   
A: The man with the gun returned and then while the victim was lying down
in this spot the man holding the gun shot the victim, sir. [22]
On cross-examination, the same witness further clarified -
Q: So, you saw the two other accused returned back to the tricycle?
   
A: Yes, sir.
   
Q: And one of their companion was already inside the tricycle?
   
xxxx
   
Court: There was somebody inside the tricycle where the handbag
was given.
 
xxxx
   
A: Yes, sir.
   
Q: And the one who sat at the back of the tricycle driver was the
person with the gun?
   
A: Yes, sir.[23]
On the other hand, accused Del Rosario declared during the direct
examination that -
Q: x x x x On the evening of May 13, 1996 you were the driver of the
tricycle as testified to by Eduardo Nalagon?
   
A: Yes, sir.
   
Q: Now, you also heard that there was a shoot out near the Cathedral and
the Nita's Drugstore at Gen. Tinio St.?
   
A: Yes, sir.
   
xxxx
   
Court: At that time you were seated at the tricycle, which tricycle was used
by the assailants?
   
A: Yes, sir.
   
Q: Then what did you do?
   
A: I tried to escape, sir, but I was stopped by them.
   
Q: When you said "they" to whom are you referring?
   
A: Boy Santos and Jun Marquez, sir.
   
Q: And at that time where was Boy Santos?
   
A: He was inside the tricycle, sir.
   
Q: And what about Jun Marquez?
   
A: He alighted from the tricycle and helped him grabbed (sic) the
bag of the victim.
   
Q: And was the bag grabbed and by whom?
   
A: Yes, sir, by Dodong Visaya was able to grab the bag.
   
Q: And after that what happened?
   
A: Both of them rode inside my tricycle, sir.
   
  Court: Did you not see any shooting?
   
A: There was, sir.
   
Q: Who was shot?
   
A: Jun Marquez shot the woman, sir x x x x
   
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 x x x x
   
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]
On cross-examination, accused further stated -
Q: After shopping 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 x x x x
   
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 x x x x.
   
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 x x x x[25]
   
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 asserted that it was "Jun" Marquez who shot the victim and sat
behind him in the tricycle.

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, 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 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 (1½)
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
of automaton without a will of his own. In other words, in effect, he could
not be any more than a mere instrument acting involuntarily an 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 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.

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 SP04 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 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 -
x x x x 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.
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 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.

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.

SO ORDERED.

Davide, Jr., C.J., Romero, Melo, Puno, Vitug, Kapunan, Mendoza,

Panganiban, Quisumbing, Purisima, Pardo, Buena, Gonzaga-Reyes, and
Ynares-Santiago, JJ. concur.

[1]
Decision penned by Judge Feliciano V. Buenaventura, RTC-Br. 27,
Cabanatuan City.

[2]
Rollo, p. 24.

[3]
Id., p. 25.

[4]
TSN, 9 July 1996, pp. 3-9; 11 July 1996, pp. 27-28, 31-32.

[5]
Id., 4 September 1996, p. 15.

[6]
Id., p. 10.

[7]
Id., p. 15.

[8]
Id., 12 September 1996, p. 6.

[9]
See Note 4, p. 16.

[10]
See Note 7, p. 8.

[11]
TSN, 28 August 1996, pp. 3-7.

[12]
Id., 13 September 1996, p. 21.
[13]
See Note 10, p. 7.

[14]
See Note 7, p. 16.

[15]
Appellant's Brief, pp. 56-57.

[16]
Id., p. 82.

[17]
See Note 1, p. 75.

[18]
People v. Lorena, G.R. No. 54414, 9 July 1984, 130 SCRA 311.

[19]
Rollo, pp. 407-408.

[20]
The decision reads (p. 74) x x x they rode in the tricycle of the accused
and went near NITA'S DRUG STORE at Juan Luna Street, Cabanatuan City;
while there, JUN MARQUEZ and DODONG BISAYA waylaid VIRGINIA
BERNAS, grappled with her for the possession of the bag; while they were
grappling, BOY SANTOS saw the male helper of VIRGINIA BERNAS and he
ran after him and in a few seconds returned to the place where he found the
victim VIRGINIA BERNAS lying down; BOY SANTOS shot the victim and from
there, they fled to Dicarma, Cabanatuan City, where JUN MARQUEZ,
DODONG BISAYA and BOY SANTOS alighted from the tricycle x x x x.

[21]
TSN, 9 July 1996, pp. 4-7.

[22]
Id., 11 July 1996, pp. 27-28.

[23]
Id., pp. 31-32.

[24]
Id., 28 August 1996, pp. 3-6.

[25]
Id., 12 September 1996, pp. 9-10.

[26]
Id., 13 September 1996, p. 2.

[27]
Comment on Appellee's Brief, pp. 12-13.

[28]
Exhibits P-7 and P-9.

[29]
Rollo, p. 74.

[30]
Id., p. 75.

[31]
People v. Taaca, No. L-35652, 29 September 1989, 178 SCRA 56.

[32]
People vs. Orodio, G.R. No. 57519, 13 September 1988, 165 SCRA 316.

[33]
People vs. Furugganan, G.R. Nos. 90191-96, 28 January 1991, 193 SCRA
471.
[34]
See Note 1, p. 73.

[35]
See Note 33, p. 481.

[36]
Ibid.

[37]
People v. Estocada, No. L-31024, 28 February 1977, 75 SCRA 295.

[38]
Rollo, p. 224.

[39]
Id., p. 27.

[40]
TSN, 3 July 1996, p. 5.

[41]
People v. Herson Tan y Verzo, G.R. No. 117321, 11 February 1998.

[42]
An Act Defining Certain Rights of Person Arrested, Detained or Under
Custodial Investigation As Well As Duties of the Arresting, Detaining and
Investigating Officer and Providing Penalties for Violations Thereof. Approved
15 May 1992.

[43]
Rollo, pp. 244-245.

[44]
G.R. No. 93239, 18 March 1991, 195 SCRA 388.

[45]
Pamaran, Manuel R., The 1985 Rules of Criminal Procedure Annotated,
1998 Ed., p. 204.

[46]
Regalado, Florenz D., Remedial Law Compendium, 1995 Ed., p. 323.

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292-A Phil. 34

FIRST DIVISION

[ G.R. Nos. 95847-48, March 10, 1993 ]

PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. GABRIEL

GERENTE Y BULLO, ACCUSED-APPELLANT.

DECISION
GRIÑO-AQUINO, J.:

This is an appeal from the decision of the Regional Trial Court of Valenzuela,
Metro Manila, Branch 172, which found the appellant guilty of Violation of
Section 8 of Republic Act. 6425 (Dangerous Drugs Act of 1972) and
sentenced him to suffer, the penalty of imprisonment for a term of twelve
(12) years and one (1) day, as minimum, to twenty (20) years, as
maximum; and also found him guilty of Murder for which crime he was
sentenced to suffer the penalty of reclusion perpetua. The dispositive portion
of the appealed decision reads:

"WHEREFORE, in view of the foregoing the Court finds the accused Gabriel
Gerente in Criminal Case No. 10255-V-90 guilty beyond reasonable doubt of
Violation of Section 8 of R.A. 6425 and hereby sentences him to suffer the
penalty of imprisonment of twelve years and one day as minimum to twenty
years as maximum, and a fine of twelve thousand, without subsidiary
imprisonment in case of insolvency, and to pay the costs.

"In Criminal Case No. 10256-V-90, the Court finds the accused Gabriel
Gerente guilty beyond reasonable doubt of the crime of Murder, and there
by (sic) no aggravating circumstances nor mitigating circumstances, is
hereby sentenced to suffer the penalty of reclusion perpetua; to indemnify
the heirs of the victim in the sum of P30,000.00, and in the amount of
P17,609.00 as funeral expenses, without subsidiary imprisonment in case of
insolvency, and to pay the costs. The accused Gabriel Gerente shall be
credited with the full term of his preventive imprisonment." (p. 25, Rollo.)

Appellant Gabriel Gerente y Bullo was charged with Violation of Section 8,

Art. II of R.A. 6425, which was docketed as Criminal Case No. 10255-V-90
of the Regional Trial Court of Valenzuela, Metro Manila. The Information
reads:

"That on or about the 30th day of April, 1990, in the municipality of

Valenzuela, Metro Manila, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, without justification, did then
and there wilfully, unlawfully and feloniously have in his possession and
control dried flowering tops wrapped in foil with markings and place in a
transparent plastic bag which are considered prohibited drugs." (p. 2, Rollo.)

The same accused, together with Totoy and Fredo Echigoren who are both at
large, was charged with Murder in Criminal Case No. 10256-V-90 in an
information of the same date and signed by the same Assistant Provincial
Prosecutor, as follows:

"That on or about the 30th day of April, 1990, in the municipality of

Valenzuela, Metro Manila, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused together with two (2) others
who are still at large and against whom the preliminary investigation has not
yet been terminated by the Office of the Provincial Prosecutor of Bulacan,
conspiring, confederating together and mutually helping one another, armed
with a piece of wood and hallow (sic) block and with intent to kill one Clarito
B. Blace, did then and there wilfully, unlawfully and feloniously, with evident
premeditation and treachery, attack, assault and hit with the said piece of
wood and hollow block the said Clarito B. Blace, hitting the latter on the
different parts of his body, thereby inflicting serious physical injuries which
directly caused the death of the said victim." (p. 3, Rollo.)

Edna Edwina Reyes testified that at about 7:00 a.m. of April 30, 1990,
appellant Gabriel Gerente, together with Fredo Echigoren and Totoy
Echigoren, started drinking liquor and smoking marijuana in the house of the
appellant which is about six (6) meters away from the house of the
prosecution witness who was in her house on that day. She overheard the
three men talking about their intention to kill Clarito Blace. She testified that
she heard Fredo Echigoren saying, "Gabriel, papatayin natin si Clarito Blace,"
and Totoy Echigoren allegedly seconded Fredo's suggestion saying:
"Papatayin natin 'yan mamaya." Appellant allegedly agreed: "Sigue,
papatayin natin mamaya." (pp. 3-4, tsn, August 24, 1990.)

Fredo and Totoy Echigoren and Gerente carried out their plan to kill Clarito
Blace at about 2:00 p.m. of the same day. The prosecution witness, Edna
Edwina Reyes, testified that she witnessed the killing. Fredo Echigoren
struck the first blow against Clarito Blace, followed by Totoy Echigoren and
Gabriel Gerente who hit him twice with a piece of wood in the head and
when he fell, Totoy Echigoren dropped a hollow block on the victim's head.
Thereafter, the three men dragged Blace to a place behind the house of
Gerente.

At about 4:00 p.m. of the same day, Patrolman Jaime Urrutia of the
Valenzuela Police Station received a report from the Palo Police Detachment
about a mauling incident. He went to the Valenzuela District Hospital where
the victim was brought. He was informed by the hospital officials that the
victim died on arrival. The cause of death was massive fracture of the skull
caused by a hard and heavy object. Right away, Patrolman Urrutia, together
with Police Corporal Romeo Lima and Patrolman Alex Umali, proceeded to
Paseo de Blas where the mauling incident took place. There they found a
piece of wood with blood stains, a hollow block and two roaches of
marijuana. They were informed by the prosecution witness, Edna Edwina
Reyes, that she saw the killing and she pointed to Gabriel Gerente as one of
the three men who killed Clarito.

The policemen proceeded to the house of the appellant who was then
sleeping. They told him to come out of the house and they introduced
themselves as policemen. Patrolman Urrutia frisked appellant and found a
coin purse in his pocket which contained dried leaves wrapped in cigarette
foil. The dried leaves were sent to the National Bureau of Investigation for
examination. The Forensic Chemist found them to be marijuana.

Only the appellant, Gabriel Gerente, was apprehended by the police. The
other suspects, Fredo and Totoy Echigoren, are still at large.

On May 2, 1990, two separate informations were filed by Assistant Provincial

Prosecutor Benjamin Caraig against him for Violation of Section 8, Art. II, of
R.A. 6425, and for Murder.

When arraigned on May 16, 1990, the appellant pleaded not guilty to both
charges. A joint trial of the two cases was held. On September 24, 1990, the
trial court rendered a decision convicting him of Violation of Section 8 of R.A.
6425 and of Murder.

In this appeal of the appellant, the following errors are ascribed to the trial
court:

1. the court a quo gravely erred in admitting the marijuana leaves adduced
in evidence by the prosecution; and

2. the court a quo gravely erred in convicting the accused-appellant of the

crimes charged despite the absence of evidence required to prove his guilt
beyond reasonable doubt.

The appellant contends that the trial court erred in admitting the marijuana
leaves as evidence in violation of his constitutional right not to be subjected
to illegal search and seizure for the dried marijuana leaves were seized from
him in the course of a warrantless arrest by the police officers. We do not
agree.

The search of appellant's person and the seizure of the marijuana leaves in
his possession were valid because they were incident to a lawful warrantless
arrest.

Paragraphs (a) and (b), Section 5, Rule 113 of the Revised Rules of Court
provide:

'Section 5. Arrest without warrant: when lawful. -- A peace officer or a

private person may, without a warrant arrest a person;

"(a) When, in his presence, the person to be arrested has committed, is

actually committing, or is attempting to commit an offense;

"(b) When an offense has in fact just been committed and he has personal
knowIedge of facts indicating that the person to be arrested has committed
it; x x x.
The policemen arrested Gerente only some three (3) hours after Gerente
and his companions had killed Blace. They saw Blace dead in the hospital
and when they inspected the scene of the crime, they found the instruments
of death: a piece of wood and a concrete hollow block which the killers had
used to bludgeon him to death. The eye-witness, Edna Edwina Reyes,
reported the happening to the policemen and pinpointed her neighbor,
Gerente, as one of the killers. Under those circumstances, since the
policemen had personal knowledge of the violent death of Blace and of facts
indicating that Gerente and two others had killed him, they could lawfully
arrest Gerente without a warrant. If they had postponed his arrest until they
could obtain a warrant, he would have fled the law as his two companions
did.

In Umil vs. Ramos, 187 SCRA 311, the arrest of the accused without a
warrant was effected one (1) day after he had shot to death two Capcom
soldiers. The arrest was held lawful by this Court upon the rationale stated
by us in People vs. Malasugui, 63 Phil. 221, 228, thus:

"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 in-
stances."

The search conducted on Gerente's person was likewise lawful because it

was made as an incident to a valid arrest. This is in accordance with Section
12, Rule 126 of the Revised Rules of Court which provides:

"Section 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."

The frisk and search of appellant's person upon his arrest was a permissible
precautionary measure of arresting officers to protect themselves, for the
person who is about to be arrested may be armed and might attack them
unless he is first disarmed. In Adams vs. Williams, 47 U.S. 143, cited in
Justice Isagani A. Cruz's Constitutional Law, 1991 Edition, p. 150, it was
ruled that "the individual being arrested may be frisked for concealed
weapons that may be used against the arresting officer and all unlawful
articles found in his person, or within his immediate control may be seized."

There is no merit in appellant's allegation that the trial court erred in

convicting him of having conspired and cooperated with Fredo and Totoy
Echigoren to kill Blace despite the testimony of Dr. Valentin Bernales that
the fracture on the back of the victim's skull could have been inflicted by one
person only.

What Dr. Bernales stated was a mere possibility that only one person
dropped the concrete hollow block on the head of the victim, smashing it.
That circumstance, even if true, does not absolve the other two co-
conspirators in the murder of Blace for when there is a conspiracy to commit
a crime, the act of one conspirator is the act of all. The conspiracy was
proven by the eyewitness-testimony of Edna Edwina Reyes, that she
overheard the appellant and his companions conspire to kill Blace, that
acting in concert, they attacked their victim with a piece of wood and a
hollow block and caused his death. "When there is no evidence indicating
that the principal witness for the prosecution was moved by improper
motive, the presumption, is that he was not so moved and his testimony is
entitled to full faith and credit" (People vs. Belibet, 199 SCRA 587, 588).
Hence, the trial court did not err in giving full credit to Edna Reyes'
testimony.

Appellant's failure to escape (because he was very drunk) is no indicium of

his innocence.

The Solicitor General correctly pointed out in the appellee's brief that the
award of P30,000.00 as civil indemnity for the death of Clarito Blace should
be increased to P50,000.00 in accordance with our ruling in People vs. Sison,
189 SCRA 643.

WHEREFORE, the appealed decision is hereby AFFIRMED, with

modification of the civil indemnity awarded to the heirs of the victim, Clarito
Blace, which is hereby increased to P50,000.00.
SO ORDERED.

Cruz, (Chairman), Bellosillo, and Quiason, JJ., concur.

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d.i People v. Salvatierra, G.R. No. 104663, July 24, 1997 342 Phil. 22

FIRST DIVISION
 [ G.R. No. 104663, July 24, 1997 ]

PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. DAVID

SALVATIERRA Y EGUIA, ACCUSED-APPELLANT.

DECISION

KAPUNAN, J.:

For the fatal stabbing of Charlie Fernandez y De Guzman, the Regional Trial
Court of Manila, Branch XLIX,[1]  meted accused David Salvatierra y Eguia
the penalty of reclusion perpetua and the payment of the amounts of
P30,183.25 as actual damages and P50,000.00 as indemnity to the heirs of
the victim, plus the cost of suit (Criminal Case No. 90-88985).

At around 4:30 in the afternoon of August 17, 1990, Charlie Fernandez, a

vendor of “palamig” was walking along M. de la Fuente Street, [2] going
towards the direction of Quiapo at the opposite side of the street. [3]
Suddenly, three (3) persons met him. One of them was appellant David
Salvatierra, who lunged a pointed instrument at Charlie. The latter was able
to parry the thrust but appellant swung the instrument anew hitting Charlie
at the left breast. Thereafter, all three persons scampered away.[4] Charlie
still managed to walk home to tell his father about the incident but suddenly
collapsed.[5] He was taken immediately to the hospital where he was
operated on.

The assault was witnessed by Milagros Martinez, an ambulant vendor of fish

and salted eggs who stopped by to rest at the right side of J. Fajardo St. in
Sampaloc, Manila near the Trabajo Market. Milagros told the incident only to
her daughter.[6] She did not immediately report the incident to the police
authorities because she was afraid.

Charlie’s father, Marciano Fernandez, reported the crime to the police at

Station No. 4 at about 5:40 that afternoon. Since the victim could not be
interviewed as he was then undergoing operation, the police and Marciano
Fernandez proceeded to the crime scene to get information about the
incident but their effort was fruitless as no one in the area would volunteer
to identify the culprits.[7] A relative of the victim informed the police that
appellant was one of the suspects in the crime.[8]

The next day or on August 18, 1990, 20-year-old Charlie expired. His death
was caused by hemorrhage secondary to the stab wound on the anterior
chest wall.[9] The medical report prepared by Dr. Sergio Alteza, Jr., medico-
legal officer of the U.S.T. Hospital, showed that Charlie sustained, aside from
the stab wound on the chest, another stab wound on the left forearm and an
incised wound on the left wrist.[10]

Marciano Fernandez went back to Police Station No. 4 to inform the

authorities that his son had died. He was advised to report the matter to the
Homicide Section of the Western Police District (WPD). [11] where an “advance
information” was prepared indicating that four (4) unidentified persons
perpetrated the crime.[12]

On November 15, 1990 at about 4:35 in the afternoon, Police Station No.4
received a complaint that appellant was creating a commotion along Miguelin
Street, Sampaloc, Manila. He was thereby taken in custody by Pat. Celso Tan
and two other policemen who later found out that appellant was a suspect in
the killing of Charlie Fernandez. [13] Later that day, appellant was turned over
to the WPD.

Milagros Martinez learned about the apprehension of appellant from her

children. Later, she was approached by Marciano Fernandez who persuaded
her to testify on what she witnessed on August 17, 1990. Upon being
informed that appellant was transferred to the WPD, the two proceeded to
said station where Milagros executed a sworn statement implicating
appellant to the crime.[14] In a police line-up, Milagros pinpointed appellant
as the person who stabbed Charlie. Thereafter, Pat. Amores prepared a
booking sheet and arrest order which appellant signed. [15]

On November 19, 1990, appellant was charged with murder in an

information which reads as follows:
That on or about August 17, 1990 in the City of Manila, Philippines, the said
accused, conspiring and confederating with three others whose true names,
identities and present whereabouts are still unknown and helping one
another, did then and there wilfully, unlawfully and feloniously with intent to
kill and with treachery and evident premeditation, attack, assault and use
personal violence upon one CHARLIE FERNANDEZ Y DE GUZMAN, by then
and there stabbing the latter twice with a bladed weapon on the chest,
thereby inflicting upon him mortal stab wounds which were direct and
immediate cause of his death thereafter.
Contrary to law.[16]
At his arraignment, appellant pleaded not guilty to the crime charged. [17]

Apellant put up the defense of alibi alleging that at 4:30 in the afternoon of
August 17, 1990, he was having merienda with his wife and children at their
home in 459 Miguelin Street, Sampaloc, Manila and could not possibly be
near the Trabajo Market.[18]

Appellant further testified that in the afternoon of November 15, 1990, he

had an altercation with a woman in their neighborhood who caused his
arrest for the crime of malicious mischief. He was detained for a few hours
at Police Station No. 4. Later. Police from WPD arrived and picked him up
and brought him to the Homicide Section where he was investigated,
interrogated and detained for the stabbing of one Charlie Fernandez on
August 17, 1990.[19] After two (2) days, he was brought out of his cell where
a man and two (2) women were made “to view” him. One of the women was
the mother of the victim while the other one was someone he was not
acquainted with. The latter was the witness against him who pointed to him
as the killer of Charlie in the police line-up. [20] Two days later, he was made
to sign a document the contents of which he was not allowed to read. When
he insisted on reading the document, his head was hit with a key and he was
forced to sign it. The document was the booking and information sheet. [21]
In this appeal, he makes the following assignment of errors:

I.-THE COURT A QUO GRAVELY ERRED IN NOT FINDING THAT THE ARREST,
INVESTIGATION AND DETENTION OF THE ACCUSED-APPELLANT FOR THE
OFFENSE CHARGED IN THE INSTANT CASE WAS VIOLATIVE OF HIS
CONSTITUTIONAL RIGHTS.[22]

II.-THE COURT A QUO ERRED IN FINDING THAT TREACHERY ATTENDED THE

KILLING OF THE DECEASED CHARLIE FERNANDEZ.[23]

III.-THE COURT A QUO GRAVELY ERRED IN ACCEPTING AT FACE VALUE THE

VAGUE AND AMBIGUOUS TESTIMONY OF MILAGROS MARTINEZ AND
UTILIZING SUCH INCONCLUSIVE TESTIMONY AS THE BASIS FOR
CONVICTING THE ACCUSED-APPELLANT OF THE CRIME OF MURDER. [24]

Anent the first error, appellant claims that his constitutional right against
warrantless arrests was violated because “(t)here is nothing on record show
that (his) arrest xxx for the minor offense of malicious mischief was effected
by virtue of a warrant.”[25] Indeed, appellant’s arrest on suspicion that he
was involved in the killing of Charlie Fernandez was made almost three (3)
months after the commission of the crime on August 17, 1990 and only after
he had been taken in police custody for a minor offense. As such, because
no warrant had been obtained during the 3-month intervening period
between the commission of the crime and his apprehension, his arrest would
have ordinarily been rendered unconstitutional and illegal inasmuch as even
warrantless arrests made within shorter periods like ten (10) days [26] are
illegal. The element of immediacy between the time of the commission of the
offense and the time of the arrest had not been complied with. It should be
stressed that section 5(b) of Rule 113 of the Rules of Court has excluded
situations under the old rule which allowed a warrantless arrest provided
that the offense “has in fact been committed.”[27]

While these arguments may be valid, appellant’s claim that the case against
him should be dismissed for violation of his constitutional rights, must fail.
Appellant is estopped from questioning the legality of his arrest considering
that he never raised this before entering his plea. Any objection involving a
warrant of arrest or the procedure in the acquisition of jurisdiction over the
person of an accused must be made before he enters his plea, otherwise,
the objection is deemed waived.[28] This is the first time that appellant is
raising this issue as he did not even move for the quashal of the information
before the trial court on the ground of illegal arrest. [29] Consequently, any
irregularity attendant to his arrest, if any, had been cured by his voluntary
submission to the jurisdiction of the trial court when he entered his plea and
participated during the trial.[30] Verily, the illegal arrest of appellant is not a
sufficient cause for setting aside a valid judgment rendered upon a sufficient
complaint and where the trial was free from error. [31]

Neither may appellant successfully assert that the case should be dismissed
because during custodial investigation and the police line-up he was
deprived of his constitutional right to counsel. To bolster his assertion,
appellant quotes People v. Campos[32] and People v. Vasquez,[33] where the
Court in effect held that during custodial investigation, an accused should be
assisted by counsel. Those cases, however, should be distinguished from the
case at bar because in the former, the extrajudicial confessions of the
accused during custodial investigation were the only bases for conviction,
unlike in this case where there are other pieces of evidence by which the
culpability of the appellant may be founded.

Moreover, in People v. Lamsing,[34] the Court categorically stated as follows:

Finally, although it is not assigned as error, accused-appellant complains
that he was made to join a police lineup where he was identified by three
persons, including Elizabeth De los Santos, without the assistance of
counsel. It was settled in Gamboa v. Cruz (G.R. No. 56291, June 27, 1988,
162 SCRA 642, 651), however, that the right to counsel guaranteed in Art.
III, Section 12(1) of the Constitution does not extend to police lineups
because they are not part of custodial investigations. The reason for this is
that at that point, the process has not yet shifted from the investigatory to
the accusatory. The accused’s right to counsel attaches only from the time
that adversary judicial proceedings are taken against him.[35] (Italization
supplied.)
In the same vein, appellant may not validly claim that dismissal of the case
against him should be a matter of course because he signed the booking and
information sheet without the assistance of counsel. Granting that affixing
the signature of an accused is covered by the constitutional mandate
requiring assistance of counsel to an accused during custodial investigation,
this piece of evidence may be disregarded without the least diluting the
prosecution’s case against appellant. The booking and information sheet is
not the only incriminatory evidence against appellant.

What needs scrutiny is the testimony of eyewitness Milagros Martinez. In

assailing the testimony of Milagros, appellant points out that it is flawed by
inconsistencies on material matters such as while she testified that she did
not know the identity of the other assailants, she could delineate appellant’s
features – his curly hair, mustache and piercing (“nanlilisik”) eyes. [36]

On the very material point of identification of appellant as the perpetrator of

the crime, she testified as follows:
FISCAL PERALTA:

Did you come to know the name of that person whom you said (was) the
victim of that stabbing?

WITNESS:

A certain Charlie, sir.

FISCAL PERALTA:

What about that person whom you identified a while ago as the one who
stabbed the victim Charlie? When did you come to know the name David
Salvatierra?

WITNESS:
When I went to the Homicide Section and there was a police lineup made by
the police officers there consisting of eight (8) persons and I was made to
point to that person who stabbed the victim and I pointed to that person, sir.

FISCAL PERALTA:

Could you recall, Madam Witness, when was that police lineup conducted?

WITNESS:

November 17, 1990, sir.

FISCAL PERALTA:

Now, the incident happened on August 17, 1990. Why is it that it was only
November 17, 1990, that you identified the assailant David Salvatierra?

WITNESS:

Because he was not yet arrested and I was also afraid, sir.

xxx

FISCAL PERALTA:

Now, that person whom you said you saw stabbed the victim together with
two (2) other companions and the person whom you pointed to in the police
lineup conducted by the police on November 17, 1990, if you see him again,
can you still identify him?

WITNESS:

Yes, sir.

FISCAL PERALTA:

Will you please look around the courtroom and point to him?

COURT:

Fiscal, what are you asking this witness?

FISCAL PERALTA:

The one who was pointed to by the witness in the police station during the
police lineup because she already identified the accused as the one who
stabbed, Your Honor.

FISCAL PERALTA:

(to the Witness)

Will you please point to him?

WITNESS:

That person, sir.

INTERPRETER:

Witness pointed to a persons (sic) who, when asked, stated his name as
David Salvatierra.[37]
Even on cross-examination, she remained steadfast on the issue of
identification of appellant. Thus:
ATTY. CORTES:

What pecularities (sic) did these companions of Salvatierra have that could
possibly help you identify them when you see them again?

WITNESS:

When those persons will be showed (sic) to me, I could remember their
faces, sir. I just do not know how to describe their appearances but
whenever they will be showed (sic) to me, I could possibly identify them,
because of my low educational attainment.

ATTY. CORTES:

Not even their noses, you could not describe?

WITNESS:

I could not tell you, sir, but I fully remember him.

INTERPRETER:

Witness is pointing to the Accused.

WITNESS: (continuing)

Because he has a moustache and he has a curly hair and at that time, sir,
his eyes were fiercing (sic) ‘nanlilisik.’ [38]
From this testimony, it is clear that although Milagros did not know
appellant’s name, she remembered his features and recognize him as the
perpetrator of the crime. Indeed, she could not have failed to identify him
because she was only eight (8) meters away when the assault occurred.
Visibility was not a problem because while there were some pedestrians in
the area, traffic light was light and could not have obstructed Milagros’ view.
Furthermore, it was 4:30 in the afternoon when the day was still bright.

Aside from the said “inconsistency” regarding the identity of the perpetrators
of the crime, appellant points to other “inconsistencies” in her testimony
such as: (a) she first testified that the three persons “met” the victim in the
sense that, as appellant puts it in his brief, “the three (3) persons and the
victim were walking towards each other until they met,” but later she said
that they were only standing on that occasion; (b) she claimed that she
“never told anyone” about the incident and yet Marciano Fernandez was able
to locate her; (c) although no one knew the identity of the assailant,
Milagros went to Police Station No. 4 upon appellant’s apprehension, to
identify him; (d) Marciano Fernandez asked her to testify on November 16,
1990 and they went to the police the following day; and (e) it was
impossible for Milagros to have remembered the features of appellant
considering the lapse of time between the commission of the crime and
appellant’s arrest because, contrary to the trial court’s finding, she was not
so startled by the incident that she continued vending after its occurrence. [39]

Obviously geared at derailing the eyewitness’ credibility, such

“inconsistencies, “ however, are collateral matters which are too trivial and
minor to affect the credibility of Milagros and the evidentiary value of her
testimony.[40] Minor discrepancies in the testimony of a witness even
enhances her credibility, as these minor discrepancies could also indicate
that the response given by the witness was honest and unrehearsed. [41] In
fact, when an unlettered person like Milagros testifies, inconsistencies in her
testimony may be disregarded without impairing her credibility.

The evidence actually shows that Milagros Martinez, an ambulant fish vendor
who finished only grade 3, was witness to the crime. She never told anybody
about what she saw except to her daughter.

How she was tracked down by Marciano Fernandez to testify intrigues

appellant indeed. But this was a marketplace where people were at least
familiar to each other since they were selling their wares regularly in said
place and where word got around easily. It was, therefore, not highly
improbable that word spread around pointing to Martinez as a possible
witness.

Martinez did not report the crime to the police immediately because she was
afraid. Appellant was a known tough guy in the area. He was a member of
the “Bahala Na Gang” and said to belong to a family of killers. [42]

The trial court correctly observed that witnesses to a horrendous crime do

not involve themselves by reporting the commission of such crimes because
of the attendant and consequent peril to their lives and those of their loved
ones. Unless the victims are relatives or close friends of such witnesses, the
latter ordinarily keep mum about such incidents and attend to their usual
business[43] just as what Milagros exactly did in this case.

In crimes such as this, the police, as part of their investigatory work

certainly had leads and knew more or less who the suspects were. All what
was necessary was a credible witness to confirm their suspicions. Thus,
when appellant was arrested, Milagros Martinez was persuaded by Marciano
Fernandez to confirm if appellant was indeed the killer.

Only sufficient proof of a sinister motive could have discredited Milagros as a

credible eyewitness. This the defense failed to provide. Its insinuations that
Marciano Fernandez colluded with Milagros to pin down appellant as the
killer of Charlie is bereft of factual foundation and, therefore, they serve no
purpose. Having failed to prove such ill motive certainly demolished
appellant’s protestations on the credibility of the prosecution’s sole
eyewitness. Her testimony is thus entitled to full faith and credit[44] more so
because Milagros was even presented by the defense as a hostile witness to
prove that she “was not around during the incident. [45] Unfortunately, aside
from a repetition of her story for the prosecution, the defense elicited no
more than the added information that she did not inform the parents of the
victim on what she saw because she and her children were afraid of the
accused who belonged to a “family of killers.”[46]

Contrary to appellant’s claim, treachery attended the killing of Charlie

Fernandez. Appellant’s claim that there was no treachery because two of the
three assailants “did nothing” and that “the stabbing of the victim could
probably be attributed to a whim or impulse and not a planned and
deliberate act”[47] is too preposterous for comfort. Treachery is present when
the offender adopts means, methods or forms in the execution of a felony,
which insure its commission without risk to himself arising from the defense
which the offended party might make.[48]

The prosecution proved beyond reasonable doubt that all these elements
were present in the case at bar. They were sufficiently proven by the
testimony of Milagros Martinez whose credibility the defense failed to
destroy. Appellants and his two (2) companions suddenly appeared,
surrounded the victim and appellant stabbed him at least two times. The
victim was unarmed. He did not provoked nor attack the assailants. He was
alone walking on a street with people around. He had no inkling whatsoever
that an assailant and his cohorts were lurking and about to assault him.

The fact that the victim and the malefactors were facing each other during
the assault does not negate the presence of treachery. Even a frontal attack
can be treacherous when it is sudden and unexpected and the victim is
unarmed.[49] Neither may the presence of “defense wounds” on the body of
the victim rule out treachery, Charlie’s act of parrying with his bare hands
the first thrust inflicted by appellant was an instinctive reaction to an attack.
After all, the law recognizes man’s natural instinct to protect himself from
impending danger.[50]

The trial court correctly disregarded appellant’s alibi. It is elementary that

for alibi to prosper, credible and tangible proof of physical impossibility for
the accused to be at the scene of the crime is indispensable. [51] Even if the
testimony of appellant’s wife that the distance between the crime scene and
their house was about twenty minutes’ walk away, still, it was not impossible
for appellant to be in the crime scene and return home for merienda not only
by walking but by means of transportation like pedicabs and jeepneys which
abounded in the area.[52]

The killing of Charlie Fernandez, being qualified by treachery, constituted

murder as defined and penalized by Article 248 of the Revised Penal Code
punishable by reclusion perpetua in the absence of any aggravating or
mitigating circumstances.[53] The proper imposable penalty being an
indivisible one, appellant shall not benefit from the provisions of the
Indeterminate Sentence Law.[54]

The trial court also correctly imposed actual damages of P30,183.25, which
amount was duly proven[55] and not contested by the defense, apart from the
civil indemnity of P50,000.00.

WHEREFORE, the decision of the trial court convicting appellant David

Salvatierra of the crime of murder for the killing of Charlie Fernandez is
hereby AFFIRMED in toto. Cost de oficio.
SO ORDERED.

Padilla, Bellosillo, and Vitug, JJ., concur.

Hermosisima, Jr., J., on leave.

[1]
Presided by Judge Romeo J. Callejo.

[2]
Id., at 16.

[3]
Id., at 32.

[4]
Id., at 11-12.

[5]
Id., at 13.

[6]
Id., at 39.

[7]
Id., at 21-22.

[8]
Id., at 24.

[9]
Exhibit “F.”

[10]
Exhibit “E.”

[11]
TSN, January 23, 1991, pp. 19-23.

[12]
Exhibit “G.”

[13]
TSN, January 21, 1991, p. 19.

[14]
Exhibit “A.”

[15]
Exhibit “B.”

[16]
Rollo, p. 4.

[17]
Record, p. 4.

[18]
TSN, March 13, 1991, p. 17.

[19]
Id., at 5-6.
[20]
Id., at 8-10.

[21]
Id, at 11-12.

[22]
Appellant’s Brief, p. 13.

[23]
Id., at 17.

[24]
Id., at 20.

[25]
Id., at 13.

[26]
People v. Manzano, 248 SCRA 239, 245 (1995).

[27]
People v. Monda, Jr., 228 SCRA 115, 127 (1993).

[28]
People v. Codilla, 224 SCRA 104, 117 (1993).

[29]
People v. Samson, 244 SCRA 146, 150 (1995).

[30]
People v. Macam 238 SCRA 306, 315 (1994).

[31]
People v. De Guzman, 224 SCRA 93, 100 (1993).

[32]
202 SCRA 387 (1991).

[33]
196 SCRA 564 (1991).

[34]
248 SCRA 471, 480 (1995).

[35]
This overturns the holding of the Court in People v. Macam (supra) that
any identification of an uncounselled accused made in a police line-up at the
start of the custodial investigation is inadmissible in evidence.

[36]
Appellant’s Brief, pp. 21-22.

[37]
TSN, February 6, 1991, pp. 16-20.

[38]
Id., at 46-47.

[39]
Appellant’s Brief, pp. 21-24.

[40]
People v. Hacbang, 164 SCRA 441,447 (1988); People v. Tonhawan, 166
SCRA 638, 645 (1988).

[41]
People v. Montante, 192 SCRA 483 (1990).

[42]
TSN, March 13, 1991, p.9.

[43]
Rollo, p. 17.
[44]
People v. Soto, 163 SCRA 602, 606 (1988).

[45]
People v. Prado, 254 SCRA 531, 538 (1996).

[46]
TSN, March 13, 1991, p. 9.

[47]
TSN, March 13, 1991, p. 4.

[48]
Appellant’s Brief, p. 9.

[49]
People v. Parangan, 231 SCRA 682, 691 (1994).

[50]
People v. Abrenica, 252 SCRA 54, 62 (1996) citing People v. Abapo, 239
SCRA 469 (1994).

[51]
People v. Nuestro, 240 SCRA 221,229 (1995).

[52]
People v. Tanote, 238 SCRA 443, 455 (1994).

[53]
TSN, February 6, 1991, pp. 35-37.

[54]
Art. 64 (1), Revised Penal Code.

[55]
Serrano v. Court of Appeals, 247 SCRA 203, 211 (1995).

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G.R. No. 145176

FIRST DIVISION

[ G.R. No. 145176, March 30, 2004 ]

PEOPLE OF THE PHILIPPINES, APPELLEE, VS. SANTIAGO PERALTA Y

POLIDARIO (AT LARGE), ARMANDO DATUIN JR. Y GRANADOS (AT
LARGE), ULYSSES GARCIA Y TUPAS, MIGUELITO DE LEON Y
LUCIANO, LIBRANDO FLORES Y CRUZ AND ANTONIO LOYOLA Y
SALISI, ACCUSED, ULYSSES GARCIA Y TUPAS, MIGUELITO DE LEON Y
LUCIANO, LIBRANDO FLORES Y CRUZ AND ANTONIO LOYOLA Y
SALISI, APPELLANTS.
 DECISION

PANGANIBAN, J.:

The right of the accused to counsel demands effective, vigilant and

independent representation.  The lawyer’s role cannot be reduced to being
that of a mere witness to the signing of an extra-judicial confession.

The Case

Before the Court is an appeal from the August 21, 2000 Decision [1] of the
Regional Trial Court (RTC) of Manila (Branch 18) in Criminal Case No. 92-
112322.  Appellants Ulysses Garcia y Tupas, Miguelito de Leon y Luciano,
Librando Flores y Cruz and Antonio Loyola y Salisi, as well as their co-
accused --Santiago Peralta y Polidario and Armando Datuin Jr. y Granados --
were convicted therein of qualified theft.  The dispositive portion of the
Decision reads:
“WHEREFORE, the accused, Santiago Peralta y Polidario, Armando Datuin, Jr.
y Granados, Ulysses Garcia y Tupas, Miguelito De Leon y Luciano, Librando
Flores y Cruz and Antonio Loyola y Salisi, are hereby convicted of the crime
of qualified theft of P194,190.00 and sentenced to suffer the penalty of
reclusion perpetua with all the accessory penalties provided by law, and to
pay the costs.  Moreover, all the accused are ordered to pay the Central
Bank of the Philippines, now Bangko Sentral ng Pilipinas, actual damages in
the sum of P194,190.00 with interest thereon at the legal rate from the date
of the filing of this action, November 9, 1992, until fully paid.” [2]
In an Information dated November 9, 1992,[3] appellants and their co-
accused were charged as follows:
“That sometime in the year 1990 and including November 4, 1992, in the
City of Manila, Philippines, the said accused, conspiring and confederating
with others whose true names, identities and present whereabouts are still
unknown and helping one another, did then and there wilfully, unlawfully
and feloniously, with intent to gain and without the knowledge and consent
of the owner thereof, take, steal and carry away punctured currency notes
due for shredding in the total amount of P194,190.00, belonging to the
Central Bank of the Philippines as represented by Pedro Labita y Cabriga, to
the damage and prejudice of the latter in the aforesaid sum of P194,190.00
Philippine currency;

“That said accused Santiago Peralta y Polidario, Armando Datuin, Jr. y

Granados, Ulysses Garcia y Tupas, Miguelito de Leon y Luciano and Antonio
Loyola y Salisi committed said offense with grave abuse of confidence they
being at the time employed as Currency Reviewers, Driver, Currency
Assistant I and Money Counter of the offended party and as such they had
free access to the property stolen.”[4]
Garcia was arrested on November 4, 1992; and his co-accused, on
November 9, 1992.  Appellants, however, obtained two Release Orders from
RTC Vice Executive Judge Corona Ibay-Somera on November 9 and 10,
1992, upon their filing of a cash bond to secure their appearance whenever
required by the trial court.[5]
During their arraignment on May 4, 1993, appellants, assisted by their
respective counsels, pleaded not guilty.[6] On September 30, 1998, the trial
court declared that Datuin Jr. and Peralta were at large, because they had
failed to appear in court despite notice.[7]

After trial in due course, they were all found guilty and convicted of qualified
theft in the appealed Decision.

The Facts

Version of the Prosecution

The Office of the Solicitor General (OSG) presents the prosecution’s version
of the facts as follows:
“About 10:00 o’clock in the morning of November 4, 1992, Pedro Labita of
Central Bank of the Philippines (CBP) [now Bangko Sentral ng Pilipinas
(BSP)] went to the Theft and Robbery Section of Western Police District
Command (WPDC), and filed a complaint for Qualified Theft against Santiago
Peralta, Armando Datuin, Jr., Ulysses Garcia, Miguelito de Leon, Librando
Flores and Antonio S. Loyola.

“Pedro Labita submitted to SPO4 Cielito Coronel, the investigating officer at

WPDC, punctured currency notes in P100.00 and P500.00 bills with a face
value of Php194,190.00.  Said notes were allegedly recovered by the BSP
Cash Department during its cash counting of punctured currency bills
submitted by different banks to the latter.  The punctured bills were rejected
by the BSP money counter machine and were later submitted to the
investigation staff of the BSP Cash Department.  As a result of the
investigation, it was determined that said rejected currency bills were
actually punctured notes already due for shredding.  These currency bills
were punctured because they were no longer intended for circulation. 
Before these notes could be shredded, they were stolen from the BSP by the
above-named accused.

“On the basis of the complaint filed by Pedro Labita, Ulysses Garcia was
apprehended in front of Golden Gate Subdivision, Las Piñas City, while he
was waiting for a passenger bus on his way to the BSP.  Garcia was brought
to the police station for investigation.

“On November 4, 5 and 6, 1992, while in the custody of the police officers,
Garcia gave three separate statements admitting his guilt and participation
in the crime charged.  He also identified the other named accused as his
cohorts and accomplices and narrated the participation of each and everyone
of them.

“On the basis of Garcia’s sworn statements, the other named accused were
invited for questioning at the police station and were subsequently charged
with qualified theft together with Garcia.”[8] (Citations omitted)
Version of the Defense

The defense states its version of the facts in the following manner:
“Accused-appellant Garcia served as a driver of the armored car of the
Central Bank from 1978 to 1994.
“On November 4, 1992, between 7:00 a.m. and 8:00 a.m., a man who had
identified himself as a police officer arrested accused-appellant Garcia while
waiting for a passenger bus in front of the Golden Gate Subdivision, Las
Piñas City.  He was arrested without any warrant for his arrest.  The police
officer who had arrested accused-appellant Garcia dragged the latter across
the street and forced him to ride x x x a car.

“While inside the car, he was blindfolded, his hands were handcuffed behind
his back, and he was made to bend with his chest touching his knees. 
Somebody from behind hit him and he heard some of the occupants of the
car say that he would be salvaged if he would not tell the truth.  When the
occupants of the car mentioned perforated notes, he told them that he does
not know anything about those notes.

“After the car had stopped, he was dragged out of the car and x x x up and
down x x x the stairs.  While being dragged out of the car, he felt somebody
frisk his pocket.

“At a safe house, somebody mentioned to him the names of his co-accused
and he told them that he does not know his co-accused x x x.  Whenever he
would deny knowing his co-accused, somebody would box him on his chest. 
Somebody poured water on accused-appellant Garcia’s nose while lying on
the bench.  He was able to spit out the water that had been poured on his
nose [at first], but somebody covered his mouth.  As a result, he could not
breath[e].

“When accused-appellant Garcia realized that he could not bear the torture
anymore, he decided to cooperate with the police, and they stopped the
water pouring and allowed him to sit down.

“Accused-appellant Garcia heard people talking and he heard somebody

utter, ‘may nakikinig.‘  Suddenly his two ears were hit with open palm[s] x x
x.  As he was being brought down, he felt somebody return his personal
belongings to his pocket.  Accused-appellant Garcia’s personal belongings
consisted of [his] driver’s license, important papers and coin purse.

“He was forced to ride x x x the car still with blindfold.  His blindfold and
handcuffs were removed when he was at the office of police officer Dante
Dimagmaliw at the Western Police District, U.N. Avenue, Manila.

“SPO4 Cielito Coronel asked accused-appellant Garcia about the latter’s

name, age and address.  The arrival of Mr. Pedro Labita of the Cash
Department, Central Bank of the Philippines, interrupted the interview, and
Mr. Labita instructed SPO4 Coronel to get accused-appellant Garcia’s wallet
and examine the contents thereof.  SPO4 Coronel supposedly found three
pieces of P100 perforated bill in accused-appellant Garcia’s wallet and the
former insisted that they recovered the said perforated notes from accused-
appellant’s wallet.  SPO4 Coronel took down the statement of Mr. Labita.

“It was actually Mr. Labita, and not accused-appellant Garcia, who gave the
answers appearing in accused-appellant Garcia’s alleged three sworn
statements dated November 4, 1992, November 5, 1992 and x x x 
November 6, 1992.

“At or about 6:00 p.m. on November 5, 1992, accused-appellant Garcia was

brought to the cell of the Theft and Robbery Section of the WPD.  At or
about 8:00 p.m., he was brought to the office of Col. Alladin Dimagmaliw
where his co-accused were also inside.  He did not identify his co-accused,
but he merely placed his hands on the shoulders of each of his co-accused,
upon being requested, and Mr. Labita took x x x  pictures while he was doing
the said act.

“Accused-appellant Garcia came to know Atty. Francisco Sanchez of the

Public Attorney’s Office on November 4, 1992, at the office of police officer
Dante Dimagmaliw, when SPO4 Coronel introduced Atty. Sanchez to
accused-appellant Garcia and told him that Atty. Sanchez would be his
lawyer.  However, accused-appellant Garcia did not agree to have Atty.
Sanchez to be his lawyer.  Atty. Sanchez left after talking to SPO4 Coronel,
and accused-appellant Garcia had not met Atty. Sanchez anymore since
then.  He was not present when Atty. Sanchez allegedly signed x x x the
alleged three (3) sworn statements.

“During the hearing of the case on April 6, 2000, Atty. Sanchez manifested
in open court that he did not assist accused-appellant Garcia when the police
investigated accused-appellant Garcia, and that he signed x x x the three (3)
sworn statements only as a witness thereto.

“Accused-appellant Garcia signed the alleged three sworn statements due to

SPO4 Coronel’s warning that if he would not do so, he would again be
tortured by water cure.

“SPO[4] Coronel caused the arrest without any warrant of accused

appellants De Leon, Loyola, [Flores] on the basis of the complaint of Mr.
Pedro Labita, and which arrest was effected on November 5, 1992, by SPO1
Alfredo Silva and SPO1 Redelico.

“SPO4 Coronel, in his letter dated November 6, 1992, forwarded the case to
the Duty Inquest Prosecutor assigned at the WPDC Headquarters.”[9]
(Citations omitted)
Ruling of the Trial Court

The trial court found that all the accused used to work for the BSP.  Garcia
was a driver assigned to the Security and Transport Department; while
Peralta, Datuin Jr., De Leon, Flores and Loyola were laborers assigned to the
Currency Retirement Division.  Their main task was to haul perforated
currency notes from the currency retirement vault to the basement of the
BSP building for shredding.

On several occasions, during the period 1990-1992, they handed to Garcia

perforated currency notes placed in a coin sack that he, in turn, loaded in an
armored escort van and delivered to someone waiting outside the premises
of the building.  The trial court held that the coordinated acts of all the
accused unerringly led to the conclusion that they had conspired to pilfer the
perforated currency notes belonging to the BSP.

The RTC rejected the disclaimer by Garcia of his own confessions, as such
disclaimer was “an eleventh hour concoction to exculpate himself and his co-
accused.” The trial court found his allegations of torture and coerced
confessions unsupported by evidence.  Moreover, it held that the recovery of
three pieces of perforated P100 bills from Garcia’s wallet and the flight of
Peralta and Datuin Jr. were indicative of the guilt of the accused.

Hence, this appeal.[10]

Issues

In his Brief, Garcia raises the following issues:

“1

The trial court erred in admitting in evidence the alleged three Sworn
Statements of Accused-appellant Garcia and the alleged three pieces of P100
perforated notes

“2

The trial court erred in finding the accused-appellant guilty of qualified

theft.”[11]
In their joint Brief, De Leon, Loyola and Flores interpose this additional
assignment of errors:
“1

The trial court erred in admitting in evidence the alleged three sworn
statements of Accused Ulysses Garcia (Exhibits ‘I’, ‘J’ and ‘K’) and the
alleged three pieces of P100 perforated notes (Exhibits ‘N’ to ‘N-2’) over the
objections of the accused-appellants.

“2

The trial court erred in denying the demurrer to evidence of Accused-

appellants De Leon, Loyola and Flores;

“3

The trial court erred in denying the Motion for Reconsideration of the Order
denying the demurrer to evidence;

“4

The trial court erred when it failed to consider the evidence adduced by the
accused-appellants, consisting of exhibits ‘1’, ‘2’ to ‘2-B’, ‘3’ and ‘4’ and the
testimony of their witness, State Auditor Esmeralda Elli;

“5

The trial court erred in finding the accused-appellants guilty of qualified

theft.”[12]
Simplified, the issues are as follows: (1) the sufficiency of the evidence
against appellants, including the admissibility of Garcia’s confessions and of
the three perforated P100 currency notes; and (2) the propriety of the denial
of their demurrer to evidence.

The Court’s Ruling

The appeal has merit.

First Issue:
Sufficiency of Evidence

The trial court convicted appellants mainly on the strength of the three
confessions given by Garcia and the three perforated P100 currency notes
confiscated from him upon his arrest.  Appellants, however, contend that
these pieces of evidence are inadmissible.

Extrajudicial Confessions

Appellants aver that the alleged three Sworn Statements of Garcia were
obtained without the assistance of counsel in violation of his rights under
Article III, Section 12 (1) and (2) of the 1987 Constitution, which provides
thus:
“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.

“(2) No torture, force, violence, threat, intimidation, or any other means

which vitiate the free will shall be used against him.  Secret detention
places, solitary, incomunicado, or other similar forms of detention are
prohibited.”
On the other hand, the OSG contends that counsel, Atty. Francisco Sanchez
III of the Public Attorney’s Office, duly assisted Garcia during the custodial
investigation.

It is clear from a plain reading of the three extrajudicial confessions [13] that
Garcia was not assisted by Atty. Sanchez.  The signature of the latter on
those documents was affixed after the word “SAKSI.” Moreover, he appeared
in court and categorically testified that he had not assisted Garcia when the
latter was investigated by the police, and that the former had signed the
Sworn Statement only as a witness.[14]

The written confessions, however, were still admitted in evidence by the RTC
on the ground that Garcia had expressed in writing his willingness and
readiness to give the Sworn Statements without the assistance of counsel. 
The lower court’s action is manifest error.

The right to counsel has been written into our Constitution in order to
prevent the use of duress and other undue influence in extracting
confessions from a suspect in a crime.  The basic law specifically requires
that any waiver of this right must be made in writing and executed in the
presence of a counsel.  In such case, counsel must not only ascertain that
the confession is voluntarily made and that the accused understands its
nature and consequences, but also advise and assist the accused
continuously from the time the first question is asked by the investigating
officer until the signing of the confession.

Hence, the lawyer’s role cannot be reduced to being that of a mere witness
to the signing of a pre-prepared confession, even if it indicated compliance
with the constitutional rights of the accused.[15] The accused is entitled to
effective, vigilant and independent counsel.[16]

A waiver in writing, like that which the trial court relied upon in the present
case, is not enough.  Without the assistance of a counsel, the waiver has no
evidentiary relevance.[17] The Constitution states that “[a]ny confession or
admission obtained in violation of [the aforecited Section 12] shall be
inadmissible in evidence x x x.”  Hence, the trial court was in error when it
admitted in evidence the uncounseled confessions of Garcia and convicted
appellants on the basis thereof.  The question of whether he was tortured
becomes moot.

Perforated Currency Notes

Appellants contend that the three P100 perforated currency notes (Exhibits
“N” to “N-2”) allegedly confiscated from Garcia after his arrest were “fruits of
the poisonous tree” and, hence, inadmissible in evidence.

The solicitor general evades the issue and argues, instead, that appellants
waived the illegality of their arrest when they entered a plea.  He further
contends that the exclusion from the evidence of the three punctured
currency bills would not alter the findings of the trial court.

The police arrested Garcia without a warrant, while he had merely been
waiting for a passenger bus after being pointed out by the Cash Department
personnel of the BSP.  At the time of his arrest, he had not committed, was
not committing, and was not about to commit any crime.  Neither was he
acting in a manner that would engender a reasonable ground to suspect that
he was committing a crime.  None of the circumstances justifying an arrest
without a warrant under Section 5 of Rule 113 of the Rules of Court was
present.

Hence, Garcia was not lawfully arrested.  Nonetheless, not having raised the
matter before entering his plea, he is deemed to have waived the illegality of
his arrest.  Note, however, that this waiver is limited to the arrest.  It does
not extend to the search made as an incident thereto or to the subsequent
seizure of evidence allegedly found during the search.

The Constitution proscribes unreasonable searches and seizures [18] of

whatever nature.  Without a judicial warrant, these are allowed only under
the following exceptional circumstances: (1) a search incident to a lawful
arrest, (2) seizure of evidence in plain view, (3) search of a moving motor
vehicle, (4) customs search, (5) stop and frisk situations, and (6) consented
search.[19]

Where the arrest was incipiently illegal, it follows that the subsequent search
was similarly illegal.[20] Any evidence obtained in violation of the
constitutional provision is legally inadmissible in evidence under the
exclusionary rule.[21] In the present case, the perforated P100 currency notes
were obtained as a result of a search made without a warrant subsequent to
an unlawful arrest; hence, they are inadmissible in evidence.

Moreover, untenable is the solicitor general’s argument that Appellants De

Leon, Flores and Loyola waived the illegality of the arrest and seizure when,
without raising objections thereto, they entered a plea of guilty.  It was
Garcia who was unlawfully arrested and searched, not the aforementioned
three appellants.  The legality of an arrest can be contested only by the
party whose rights have been impaired thereby.  Objection to an unlawful
search and seizure is purely personal, and third parties cannot avail
themselves of it.[22]

Indeed, the prosecution sufficiently proved the theft of the perforated

currency notes for retirement.  It failed, however, to present sufficient
admissible evidence pointing to appellants as the authors of the crime.

The evidence presented by the prosecution shows that there were other
people who had similar access to the shredding machine area and the
currency retirement vault.[23] Appellants were pinpointed by Labita because
of an anonymous phone call informing his superior of the people allegedly
behind the theft; and of the unexplained increase in their spending, which
was incompatible with their income.  Labita, however, did not submit
sufficient evidence to support his allegation.

Without the extrajudicial confession and the perforated currency notes, the
remaining evidence would be utterly inadequate to overturn the
constitutional presumption of innocence.

Second Issue:
Demurrer to Evidence

Appellants contend that the trial court seriously erred when it denied the
demurrer to evidence filed by Appellants Loyola, De Leon and Flores.  Not
one of the documents offered by the prosecution and admitted in evidence
by the RTC established the alleged qualified theft of perforated notes, and
not one of the pieces of evidence showed appellants’ participation in the
commission of the crime.

On the exercise of sound judicial discretion rests the trial judge’s

determination of the sufficiency or the insufficiency of the evidence
presented by the prosecution to establish a prima facie case against the
accused.  Unless there is a grave abuse of discretion amounting to lack of
jurisdiction, the trial court’s denial of a motion to dismiss may not be
disturbed.[24]

As discussed earlier, the inadmissibility of the confessions of Garcia did not

become apparent until after Atty. Francisco had testified in court.  Even if
the confiscated perforated notes from the person of the former were held to
be inadmissible, the confessions would still have constituted prima facie
evidence of the guilt of appellants.  On that basis, the trial court did not
abuse its discretion in denying their demurrer to evidence.

WHEREFORE, the assailed Decision is REVERSED and SET ASIDE. 

Appellants are hereby ACQUITTED and ordered immediately RELEASED,
unless they are being detained for any other lawful cause.  The director of
the Bureau of Corrections is hereby directed to submit his report on the
release of the appellant or the reason for his continued detention within five
(5) days from notice of this Decision.  No costs.

SO ORDERED.

Davide, Jr., C.J., (Chairman), Ynares-Santiago, Carpio, and Azcuna, JJ.,

concur.

[1]
Penned by Judge Perfecto A. S. Laguio Jr.

[2]
RTC Decision, p. 5; rollo, p. 33.

[3]
Signed by Assistant Prosecutor Leoncia R. Dimagiba.

[4]
Rollo, p. 9.

[5]
Records, pp. 53 & 58.

[6]
Order dated May 4, 1993; records, p. 90.

[7]
Order dated September 30, 1998; records, p. 434.

[8]
Appellee’s Brief, pp. 8-11; rollo, pp. 154-157.

[9]
Appellant Garcia’s Brief, pp. 2-5; rollo pp. 109-112.

[10]
This case was deemed submitted for decision on October 18, 2002, upon
receipt by this Court of Appellant Garcia’s Reply Brief, signed by Atty. Jose
Hernandez-Dy; and of Appellants De Leon, Flores and Loyola’s Reply Brief,
signed by Atty. Edgardo G. Pena.  Appellee’s Brief, signed by Asst. Solicitors
General Carlos N. Ortega and Nestor J. Ballacillo and Associate Solicitor
Maricar S. A. Prudon, was filed on June 20, 2002.  Appellants De Leon,
Flores and Loyola’s Brief was filed on January 2, 2002, while Appellant
Garcia’s, on January 14, 2002.

[11]
Appellant Garcia’s Brief, p. 1; rollo, p. 108; original in upper case.

[12]
Appellants De Leon, Loyola and Flores’ Brief, pp. 1-2; rollo, pp. 61-62;
original in upper case.

[13]
Records, pp. 19-27.
[14]
Order dated April 6, 2000; records, p. 468.

[15]
People v. Binamira, 277 SCRA 232, 238, August 14, 1997; People v.
Ordonio, 334 SCRA 673, 688, June 28, 2000; People v. Rodriguez, 341 SCRA
645, 653, October 2, 2000; People v. Rayos, 351 SCRA 336, 344, February
7, 2001; and People v. Patungan, 354 SCRA 413, 424, March 14, 2001.

[16]
People v. Patungan, supra; People v. Rayos; supra; and People v.
Bermas, 306 SCRA 135, 147, April 21, 1999.

[17]
People v. Gerolaga,  331 Phil. 441, October 15, 1996; People v. Cabintoy,
317 Phil. 528, August 21, 1995.

[18]
Hizon v. Court of Appeals, 333 Phil. 358, 371, December 13, 1996;
People v. Valdez, 363 Phil. 481, 487, March 3, 1999.

[19]
Hizon v. Court of Appeals, supra, pp. 371-372; Malacat v. Court of
Appeals, 347 Phil. 462, 479, December 12, 1997; People v. Usana, 380 Phil.
719, 734, January 28, 2000; People v. Encinada, 345 Phil. 301, 316,
October 2, 1997.

[20]
People v. Aruta, 351 Phil. 868, 885, April 3, 1998; People v. Bolasa, 378
Phil. 1073, 1080, December 22, 1999.

[21]
People v. Valdez, supra; Manalili v. Court of Appeals, 280 SCRA 400, 413,
October 9, 1997; People v. Che Chun Ting, 385 Phil. 305, 318, March 21,
2000.

[22]
Uy v. Bureau of Internal Revenue, 344 SCRA 36, 67, October 20, 2000.

[23]
Exhs. “Q” and “R”; records, pp. 140-141 & 142-143.

[24]
People v. Mercado, 159 SCRA 453, 459, March 30, 1988.

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*

d.iii Calanta v. Villanueva

168 Phil. 42

SECOND DIVISION

[ G.R. Nos. L-24646 & L-24674, June 20, 1977 ]

FAUSTINA CALLANTA, PETITIONER, VS. HON. FELIPE VILLANUEVA,

CITY JUDGE, CITY COURT OF DAGUPAN CITY, CORNELIA JIMENEZ
AND PASTORA DAVID JIMENEZ, RESPONDENTS.

DECISION

FERNANDO, J.:
The denial by respondent City Judge Felipe Villanueva of Dagupan City to grant the
motions to quash the two complaints for grave oral defamation against petitioner
gave rise to these suits for certiorari, the validity of the issuance of the warrants of
arrest by respondent City Judge Felipe Villanueva of Dagupan City[1] being
contested on the ground that it should have been the City Fiscal who should have
conducted the preliminary examination.  There was then, in the opinion of
petitioner's counsel, a jurisdictional infirmity.  From the very petition itself,
however, it was shown that after such issuance of the warrants of arrest with the
bail fixed in the amount of P600.00, petitioner posted such required bail bonds,
thus obtaining her provisional liberty.[2] Moreover, in the answer of respondents, it
was expressly set forth: "The City Fiscal has shown intent to prosecute the
petitioner in Criminal Cases Nos. 9298 and 9375.  As early as February 25, 1965,
after conducting his preliminary examination and after acquiring jurisdiction over
the petitioner the respondent Court referred the complaints in Criminal Cases Nos.
9298 and 9375 to the City Fiscal.  * * * So that on March 4, 1965, the arraignment
and hearing of the cases were postponed because the City Fiscal was investigating
them.  * * * It may also be noted that at the proceedings in said criminal cases on
April 20, 1965, the Fiscal entered his appearance for the government and
manifested that he was ready for trial.  If the Fiscal did not agree with the Judge in
the latter's investigation of the case, he would have asked for a further
reinvestigation of the cases.  But the City Fiscal did not.  On the other hand the
Fiscal appeared at the proceedings to prosecute the petitioner, indicating that he
was in agreement with the complaint already filed."[3] There was no denial thereof
by petitioner.
On the above facts, certiorari does not lie.
1. With the express admission by petitioner that she had posted the required bail to
obtain her provisional liberty, it becomes futile to assail the validity of the issuance
of the warrants of arrest.  This excerpt from the opinion f Justice Sanchez in
Zacarias v. Cruz[4] finds pertinence:  "Posting of a bail bond constitutes waiver of
any irregularity attending the arrest of a person, estops him from discussing the
validity of his arrest.  In the recent case of Luna v. Plaza * * *, our ruling is that
where petitioner has filed an application for bail and waived the preliminary
investigation proper, 'he had waived his objection to whatever defect, if any, in the
preliminary examination conducted  * * * prior to the issuance of the warrant of
arrest.'"[5] As a matter of fact, such a doctrine goes back to People v. Olandag,[6]
the opinion being rendered by former Chief Justice Paras.  After Zacarias, mention
may be made of three other decisions, Bermejo v. Barrios;[7] People v. La Caste,
[8] and Manzano v. Villa.[9] The latest case in point is People v. Obngayan[10]
where this Court, through Justice Antonio, after referring to Luna v. Plaza, again
reiterated the ruling "that where the accused has filed bail and waived the
preliminary investigation proper, he has waived whatever defect, if any, in the
preliminary examination conducted prior to the issuance of the warrant of
arrest."[11] At any rate, it cannot be denied that the City Fiscal of Dagupan City
had been quite active in the investigation and thereafter in the prosecution of
petitioner.  The matter was referred to his office.  It was he who appeared at the
hearing and manifested his readiness to proceed with the trial.  It would be then to
pay an undue premium to technicalities to assert that under such circumstances the
procedural requisite, assuming that the contention of petitioner is correct, of such
official conducting the preliminary examination was not in fact complied with.
2. Nor can it be concluded that there is justification for the tone f certainty of
counsel for petitioner that only the City Fiscal of Dagupan may conduct a
preliminary examination.  Apparently, he had in mind Sayo v. Chief of Police of
Manila.[12] That was a decision involving the Charter of the City f Manila.  The
opinion of Justice Feria did state the following: "Under the law, a complaint
charging a person of commission of an offense cognizable by the courts of Manila is
not filed with the municipal court or the Court of First Instance of Manila, because
as above stated the latter do not make or conduct preliminary investigation * *
*."[13] Such a doctrine is inapplicable.  The reliance is, therefore, misplaced.  The
Charter of the City of Dagupan cannot be any clearer.  The City Court of Dagupan
City "may also conduct preliminary investigation for any offense, without regard to
the limits of punishment, and may release, or commit and bind over any person
charged with such offense to secure his appearance before the proper court."[14]
WHEREFORE, these petitions for certiorari are dismissed.  The restraining order
issued by this Court is lifted and set aside.  Costs against petitioner.
Barredo and Fernandez, JJ., concur.
Antonio, J., concurs with the main opinion and in its concurring opinion of J.
Aquino.
Aquino, J., concurs in a separate opinion.
Concepcion, Jr., J., is on leave.
 

[1] The private respondents are Cornelia Jimenez and Pastora David Jimenez.
[2] Petition, par. 7.
[3] Answer, 7.
[4] L-25899, November 29, 1969, 30 SCRA 728.
[5] Ibid, 730.  Luna v. Plaza, L-27511, Nov. 29, 1968 is reported in 26 SCRA 310.
[6] 92 Phil. 286 (1952).
[7] L-23614, February 27, 1970, 31 SCRA 764.
[8] L-29083, February 27, 1971, 37 SCRA 767.
[9] L-27018, August 30, 1972, 46 SCRA 711.
[10] L-29201, January 31, 1974, 55 SCRA 465.
[11] Ibid, 471.
[12] 80 Phil. 859 (1948).
[13] Ibid, 869.  Cf. Montelibano v. Ferrer, 97 Phil. 228 (1955).
[14] Section 77, Article XIII, Republic Act No. 170 (1947).

CONCURRING OPINION
AQUINO, J.:
I concur because section 77 of the Dagupan City charter expressly empowers its
city court (formerly municipal court) to "conduct preliminary investigation for any
offense, without regard to the limits of punishment". (See sec. 24[f] as to city
attorney's power to conduct preliminary investigations).
It should be noted that that provision is also found in section 87 of the Judiciary
Law and in section 2, Rule 112 of the Rules of Court which provides that "every
justice of the peace, municipal judge (meaning city judge), city or provincial fiscal,
shall have authority to conduct preliminary examination or investigation in
accordance with these rules of all offenses alleged to have been committed within
his municipality, city or province, cognizable by the Court of First Instance" (this
provision is not correctly reproduced in some legal publications).
It is also found in the last sentence of section 41 of Republic Act No. 409, the
Revised Charter of Manila, which took effect on June 18, 1949 or after Sayo vs.
Chief of Police of Manila, 80 Phil. 859 was decided.
But that provision is not found in Commonwealth Act No. 326, the charter of
Bacolod City, under which Montelibano vs. Ferrer, 97 Phil. 228 was decided, nor in
the old Manila charter found in the Revised Administrative Code.
Hence, in the Sayo and Montelibano cases, it was held that the city court could not
conduct preliminary investigations.

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d.iv Larranaga v. CA, GR. No. 130644, March 13, 1998 (351 Phil. 75)

SECOND DIVISION
[ G.R. No. 130644, March 13, 1998 ]
THE MINOR FRANCISCO JUAN LARRANAGA, REPRESENTED IN THIS SUIT BY
HIS MOTHER, MARGARITA G. PRESENT: LARRANAGA, PETITIONER VS.
COURT OF APPEALS AND PEOPLE  OF  THE PHILIPPPINES. RESPONDENTS.

RESOLUTION

PUNO, J.:

The following are submitted before the Court for resolution:

1.an urgent motion to implement petitioners release filed by petitioner on

November 3, 1997;
2.a motion for reconsideration of this Courts resolution of October 27, 1997
filed on November 17, 1997 by the counsels for the prosecution in Crim.
Case No. CBU-45303 and 45304;
3.a complaint filed by Judge Martin A. Ocampo, Presiding Judge, Regional
Trial Court, Branch 7, Cebu City, against petitioners counsels, Attorneys
Raymundo A. Armovit, Ramon R. Teleron and Bernardito Florido, for
allegedly deliberately withholding from this Court the omnibus order,
supplemental order and order of arraignment he issued on October 17,
1997, thus misleading the Court into issuing its resolution of October 27,
1997; and
4.an urgent motion to change the venue and the officers to conduct the
preliminary investigation filed by petitioner on November 17, 1997.

The antecedent facts:

Petitioner Francisco Juan Larranaga is charged with two counts of kidnapping

and serious illegal detention docketed as CBU-45303 and CBU-45304
pending before the Regional Trial Court (RTC), Branch 7, Cebu City. He is
presently detained at the Bagong Buhay Rehabilitation Center.

On October 1, 1997, petitioner, represented by his mother, Margarita G.

Larranaga, filed with this Court a petition for certiorari, prohibition and
mandamus with writs of preliminary prohibitory and mandatory injunction.
Petitioner alleged that he was denied the right to preliminary investigation
and sought to annul the informations as well as the warrant of arrest issued
in consequence thereof. In the alternative, petitioner prayed that a
preliminary investigation be conducted and that he be released from
detention pending the investigation.[1] Petitioner filed a supplemental petition
for habeas corpus or bail on October 6, 1997. [2]

On October 20, 1997, the Solicitor General filed a manifestation and motion
in lieu of comment submitting that petitioner should have been given a
regular preliminary investigation before the filing of the informations and the
issuance of the warrant of arrest. The Solicitor General recommended that
petitioner be accorded his right to preliminary investigation and that he be
released from detention during the pendency thereof. [3]

On October 27, 1997, we issued a resolution holding that petitioner was

deprived of his right to preliminary investigation when the City Prosecutor of
Cebu insisted that he was only entitled to an inquest investigation. [4] Hence,
we resolved:

1. to set aside the inquest investigation of petitioner and to order the Office
of the City Prosecutor of Cebu to conduct a regular preliminary investigation
of the petitioner in accord with Section 3, Rule 112;
2. to annul the Order for Detention During The Pendency of the Case issued
by Executive Judge Priscila Agana against the petitioner in Crim. Case No.
CBU-45303 and 45304;
3. to order the immediate release of petitioner pending his preliminary
investigation; and
4. to order the Presiding Judge of Br. VII, RTC of Cebu City to cease and
desist from proceeding with the arraignment and trial of petitioner in Crim.
Case No. CBU-45303 and 45304, pending the result of petitioners
preliminary investigation.

On October 30, 1997, petitioner filed with the RTC of Cebu an urgent ex
parte motion praying for his immediate release pursuant to our October 27
resolution.[5]

The following day, on October 31, 1997, Judge Martin A. Ocampo, Presiding
Judge of RTC Branch 7, Cebu City, issued an order deferring the resolution
of petitioners motion. It stated that it would be premature to act on the
motion since the trial court has not yet received an official copy of our
October 27 resolution and that said resolution has not yet attained finality.
Furthermore, Judge Ocampo called the Courts attention to the fact that
petitioner has been arraigned on October 14, 1997 and waived his right to
preliminary investigation.[6]

On November 3, 1997, petitioner filed with this Court an urgent motion

praying, among others, that Judge Ocampo be directed to order petitioners
immediate release upon receipt of our October 27 resolution. [7]

Judge Ocampo filed with this Court a letter-complaint dated November 3,

1997 alleging that petitioners counsels, Attorneys Raymundo A. Armovit,
Ramon R. Teleron and Bernardito Florido, deliberately withheld from this
Court the omnibus order, supplemental order and order of arraignment, all
issued by him on October 14, 1997 in connection with Crim. Case No. CBU-
45303 and 45304. Judge Ocampo alleged that by withholding said orders,
petitioners counsels unwittingly misled the Court in its October 27 resolution.
[8]

On November 17, 1997, the counsels for the prosecution in Crim. Case No.
CBU-45303 and 45304 filed a motion for reconsideration of our October 27
resolution.[9] They raised the following arguments:

1. Petitioner is charged with a continuing offense; hence, his arrest and

detention about two months after the abduction of the victims was lawful;
2. Since petitioner was arrested without a warrant, his case comes within
the purview of Section 7 of Rule 112, not under Section 3 thereof;
3. The filing of the informations in court and the issuance of the
corresponding warrants of arrest by Executive Judge Priscila S. Agana cured
whatever defect there was in petitioners arrest and detention;
4. Petitioner was validly arraigned on October 14, 1997 and the validity of
such arraignment was not set aside by this tribunal;
5. The case of Sanchez v. Demetriou squarely applies to the instant case;
and
6. Petitioner is no longer a minor pursuant to R.A. 6809.

The Solicitor General, meanwhile, in its comment to petitioners urgent

motion for release, modified its stance regarding the validity of petitioners
detention.[10] It stated:

Considering that petitioner was arraigned (a supervening event after the

filing of the petition and before the issuance of the TRO), petitioner should
be kept in detention without prejudice to his right to preliminary
investigation.[11]

Petitioner also filed on November 17, 1997 an urgent motion to transfer the
venue of the preliminary investigation from Cebu City to Manila and to
replace the Office of the City Prosecutor of Cebu with the Office of the State
Prosecutor, Department of Justice, as the authority to conduct the
preliminary investigation because of the extensive coverage of the
proceedings by the Cebu media which allegedly influenced the peoples
perception of petitioners character and guilt.[12]

The primary issues to be resolved are: (1) whether petitioner is entitled to a

regular preliminary investigation, and (2) whether petitioner should be
released from detention pending the investigation.

We resolve the first issue in the affirmative.

The prosecutors argue that petitioner is entitled only to an inquest

investigation under Section 7 of Rule 112 since he was lawfully arrested
without a warrant under Section 5, Rule 113 of the Revised Rules of Court.

The prosecutors argument is bereft of merit. Section 7 of Rule 112 [13] applies
only to persons lawfully arrested without a warrant. Petitioner in this case
was, in the first place, not arrested either by a peace officer or a private
person. The facts show that on September 15, 1997, some members of the
Philippine National Police Criminal Investigation Group (PNP CIG) went to the
Center for Culinary Arts in Quezon City to arrest petitioner, albeit without
warrant. Petitioner resisted the arrest and immediately phoned his sister and
brother-in-law. Petitioners sister sought the aid of Atty. Raymundo A.
Armovit. Atty. Armovit, over the phone, dissuaded the police officers from
carrying out the warrantless arrest and proposed to meet with them at the
CIG headquarters in Camp Crame, Quezon City. The police officers yielded
and returned to the CIG headquarters. Petitioner, together with his sister
and brother-in-law also went to the CIG headquarters aboard their own
vehicle. Atty. Armovit questioned the legality of the warrantless arrest
before CIG Legal Officer Ruben Zacarias. After consulting with his superiors,
Legal Officer Zacarias ordered to stop the arrest and allowed petitioner to go
home. Atty. Armovit made an undertaking in writing that he and petitioner
would appear before the Cebu City Prosecutor on September 17, 1997 for
preliminary investigation.

An arrest is defined as the taking of a person into custody in order that he

may be bound to answer for the commission of an offense. [14] It is made by
an actual restraint of the person to be arrested, or by his submission to the
custody of the person making the arrest.[15] An arrest signifies restraint on
person, depriving one of his own will and liberty, binding him to become
obedient to the will of the law.[16] The foregoing facts show no restraint upon
the person of petitioner. Neither do they show that petitioner was deprived
of his own will and liberty. Hence, Section 7 of Rule 112 does not apply to
petitioner.
To be sure, even if petitioner were arrested by the PNP CIG personnel, such
arrest would still be illegal because of the absence of a warrant. Section 5 of
Rule 113 states when a warrantless arrest is deemed lawful, thus:

Sec. 5.    Arrest without a 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.

It does not appear in the case at bar that petitioner has just committed, is
actually committing or is attempting to commit an offense when the police
officers tried to arrest him on September 15, 1997. In fact, petitioner was
attending classes at the Center for Culinary Arts at that time.

We reject the prosecutors' argument that petitioner was actually committing

a crime at the time of the arrest since kidnapping with serious illegal
detention is a continuing crime. In the case of Parulan v. Director of
Prisons[17] cited by the prosecutors, kidnapping with illegal detention is
considered a continuing crime where the deprivation of liberty is persistent
and continuing from one place to another. The facts show that the alleged
kidnapping was committed on July 16, 1997. One of the victims, Marijoy
Chiong, was found dead in Sitio Tanawan, Barangay Guadalupe, Carcar,
Cebu on July 18, 1997, while the other victim, Jacqueline Chiong, remains
missing to date. There is no showing that at the time of the arrest on
September 15, 1997, Jacqueline Chiong was being detained by petitioner
who was then residing in Quezon City. Hence, petitioner may not be
considered as continually committing the crime of kidnapping with serious
illegal detention at the time of the arrest.

Judge Martin Ocampo of RTC Branch 7, Cebu City, and the state prosecutors
assert that petitioner is no longer entitled to a preliminary investigation
because he had previously waived his right to such investigation. In his
omnibus order dated October 14, 1997, Judge Ocampo held that petitioner
waived his right to preliminary investigation when he failed to appear during
the preliminary investigation set by the City Prosecutor in the afternoon of
September 17, 1997, despite the express warning that "failure of the
counsel (to present the petitioner to the Cebu City Prosecutor on said time
and date) would be treated as a waiver of his clients right to preliminary
investigation."

We disagree. A waiver, whether express or implied, must be made in clear

and unequivocal manner. Mere failure of petitioner and his counsel to appear
before the City Prosecutor in the afternoon of September 17, 1997 cannot be
construed as a waiver of his right to preliminary investigation, considering
that petitioner has been vigorously invoking his right to a regular preliminary
investigation since the start of the proceedings before the City Prosecutor. At
9:00 in the morning of September 17, 1997, petitioners counsel appeared
before the City Prosecutor of Cebu and moved that petitioner be accorded a
regular preliminary investigation. The City Prosecutor, however, denied the
motion, stating that petitioner is entitled only to an inquest investigation.
Petitioner orally moved for a reconsideration, to no avail. Petitioner assailed
the decision of the City Prosecutor before the Court of Appeals on a petition
for certiorari, prohibition and mandamus. After the Court of Appeals
dismissed said petition, petitioner went to this Court, still asserting that he
should be accorded a regular preliminary investigation.

Furthermore, petitioner and his counsel cannot be faulted for their refusal to
comply with the City Prosecutors directive to appear before him in the
afternoon of September 17, 1997 for preliminary investigation. As stated
above, petitioners counsel appeared before the City Prosecutor earlier that
day and specifically demanded a regular preliminary investigation for his
client. The City Prosecutor, however, insisted that petitioner was entitled
only to an inquest investigation which he scheduled in the afternoon of the
same day. Petitioner and his counsel refused to submit to such investigation
as it might be construed as a waiver of petitioners right to a regular
preliminary investigation.

Our ruling is not altered by the fact that petitioner has been arraigned on
October 14, 1997. The rule is that the right to preliminary investigation is
waived when the accused fails to invoke it before or at the time of entering a
plea at arraignment.[18] Petitioner, in this case, has been actively and
consistently demanding a regular preliminary investigation even before he
was charged in court. Also, petitioner refused to enter a plea during the
arraignment because there was a pending case in this Court regarding his
right to avail of a regular preliminary investigation. [19] Clearly, the acts of
petitioner and his counsel are inconsistent with a waiver. Preliminary
investigation is part of procedural due process. It cannot be waived unless
the waiver appears to be clear and informed.

The next question is whether petitioner should be released from detention

pending the investigation.

We rule in the negative.

The records show that on September 17, 1997, two informations were filed
against petitioner for kidnapping and serious illegal detention. [20] Executive
Judge Priscila Agana issued a warrant of arrest on September 19, 1997. [21]
Petitioner was arrested on September 22, 1997 by virtue of said warrant.
We held in Sanchez v. Demetriou[22] that the filing of charges and the
issuance of the warrant of arrest against a person invalidly detained will cure
the defect of that detention or at least deny him the right to be released
because of such defect. The Court ruled:

The original warrantless arrest of the petitioner was doubtless illegal.

Nevertheless, the Regional Trial Court lawfully acquired jurisdiction over the
person of the petitioner by virtue of the warrant of arrest it issued on August
26, 1993 against him and the other accused in connection with the rape-slay
cases. It was belated, to be sure, but it was nonetheless legal.
Even on the assumption that no warrant was issued at all, we find that the
trial court still lawfully acquired jurisdiction over the person of the petitioner.
The rule is that if the accused objects to the jurisdiction of the court over his
person, he may move to quash the information, but only on that ground. If,
as in this case, the accused raises other grounds in the motion to quash, he
is deemed to have waived that objection and to have submitted his person
to the jurisdiction of the court.
The Court notes that on August 13, 1993, after the petitioner was unlawfully
arrested, Judge Lanzanas issued a warrant of arrest against Antonio L.
Sanchez in connection with Criminal Cases Nos. 93-124634 to 93-124637 for
violation of R.A. No. 6713. Pending the issuance of the warrant of arrest for
the rape-slay cases, this first warrant served as the initial justification for his
detention.
The Court also adverts to its uniform ruling that the filing of charges, and
the issuance of the corresponding warrant of arrest, against a person
invalidly detained will cure the defect of that detention or at least deny him
the right to be released because of such defect. Applicable by analogy to the
case at bar is Rule 102 Section 4 of the Rules of Court that:

Sec. 4. When writ is not allowed or discharge authorized.-If it appears that

the person alleged to be restrained of his liberty is in the custody of an
officer under process issued by a court or judge or by virtue of a judgment
or order of a court of record, and that the court or judge had jurisdiction to
issue the process, render the judgment, or make the order, the writ shall not
be allowed; or if the jurisdiction appears after the writ is allowed, the person
shall not be discharged by reason of any informality or defect in the process,
judgment, or order. Nor shall anything in this rule be held to authorize the
discharge of a person charged with or convicted of an offense in the
Philippines or of a person suffering imprisonment under lawful judgment.

In one case, the petitioner sued on habeas corpus on the ground that she
had been arrested by virtue of a John Doe warrant. In their return, the
respondents declared that a new warrant specifically naming her had been
issued, thus validating her detention. While frowning at the tactics of the
respondents, the Court said:

The case has, indeed, become moot and academic inasmuch as the new
warrant of arrest complies with the requirements of the Constitution and the
Rules of Court regarding the particular description of the person to be
arrested. While the first warrant was unquestionably void, being a general
warrant, release of the petitioner for that reason will be a futile act as it will
be followed by her immediate re-arrest pursuant to the new and valid
warrant, returning her to the same prison she will just have left. This Court
will not participate in such a meaningless charade.

The same doctrine has been consistently followed by the Court more
recently in the Umil case.[23] (citations omitted)

We hold, therefore, that petitioners detention at the Bagong Buhay

Rehabilitation Center is legal in view of the information and the warrant of
arrest against him. The absence of a preliminary investigation will not justify
petitioners release because such defect did not nullify the information and
the warrant of arrest against him.[24] We ruled in Sanciangco, Jr. v. People:
[25]

The absence of preliminary investigations does not affect the courts

jurisdiction over the case. Nor do they impair the validity of the information
or otherwise render it defective; but, if there were no preliminary
investigations and the defendants, before entering their plea, invite the
attention of the court to their absence, the court, instead of dismissing the
information, should conduct it or remand the case to the inferior court so
that the preliminary investigation may be conducted. [26]

As regards petitioners motion to change the venue and the authority to

conduct the preliminary investigation, we are constrained to dismiss the
same for lack of jurisdiction. The holding of a preliminary investigation is a
function of the Executive Department and not of the Judiciary. [27] Petitioner
should therefore address their plea to the Department of Justice that has
control and supervision over the conduct of preliminary investigations.

Nonetheless, even if the Court had jurisdiction over the issue, petitioners
motion should still be denied because it failed to allege and prove that the
City Prosecutor of Cebu has been actually affected by the publicity. We held
in Webb v. De Leon:[28]

Be that as it may, we recognize that pervasive and prejudicial publicity

under certain circumstances can deprive an accused of his due process right
to fair trial. Thus, in Martelino, et al. vs. Alejandro, et al., we held that to
warrant a finding of prejudicial publicity there must be allegation and proof
that the judges have been unduly influenced, not simply that they might be,
by the barrage of publicity. In the case at bar, we find nothing in the records
that will prove that the tone and content of the publicity that attended the
investigation of petitioners fatally infected the fairness and impartiality of the
DOJ Panel. Petitioners cannot just rely on the subliminal effects of publicity
on the sense of fairness of the DOJ Panel, for these are basically unbeknown
and beyond knowing. To be sure, the DOJ Panel is composed of an Assistant
Chief State Prosecutor and Senior State Prosecutors. Their long experience
in criminal investigation is a factor to consider in determining whether they
can easily be blinded by the klieg lights of publicity. Indeed, their 26-page
Resolution carries no indubitable indicia of bias for it does not appear that
they considered any extra-record evidence except evidence properly
adduced by the parties. The length of time the investigation was conducted
despite its summary nature and the generosity with which they
accommodated the discovery motions of petitioners speak well of their
fairness. At no instance, we note, did petitioners seek the disqualification of
any member of the DOJ Panel on the ground of bias resulting from their
bombardment of prejudicial publicity.[29]

We further held in People v. Teehankee:[30]

We cannot sustain appellants claim that he was denied the right to impartial
trial due to prejudicial publicity. It is true that the print and broadcast media
gave the case at bar pervasive publicity, just like all high profile and high
stake criminal trials. Then and now, we rule that the right of an accused to a
fair trial is not incompatible to a free press. To be sure, responsible reporting
enhances an accuseds right to a fair trial for, as well pointed out, a
responsible press has always been regarded as the handmaiden of effective
judicial administration, especially in the criminal field x x x. The press does
not simply publish information about trials but guards against the
miscarriage of justice by subjecting the police, prosecutors, and judicial
processes to extensive public scrutiny and criticism.
Pervasive publicity is not per se prejudicial to the right of an accused to fair
trial. The mere fact that the trial of the appellant was given a day-to-day,
gavel-to-gavel coverage does not by itself prove that the publicity so
permeated the mind of the trial judge and impaired his impartiality. For one,
it is impossible to seal the minds of members of the bench from pre-trial and
other off-court publicity of sensational criminal cases. The state of the art of
our communication system brings news as they happen straight to our
breakfast tables and to our bedrooms. These news form part of our everyday
menu of the facts and fictions of life. For another, or idea of a fair and
impartial judge is not that of a hermit who is out of touch with the world. We
have not installed the jury system whose members are overly protected
from publicity lest they lose their impartiality. Criticisms against the jury
system are mounting and Mark Twain’s wit and wisdom put them all in
better perspective when he observed: “When a getleman of high social
standing, intellegence, and probity swears that testimony given under the
same oath will overweigh with him, street talk and newspaper reports based
upon mere hearsay, he is worth a hundred jurymen who will swear to their
own ignorance and stupidity xxx. Why could not the jury law be so altered
as to give men of brains and honesty an equal chance with fools and
miscreants?” Our judges are learned in the law and trained to disregard off-
court evidence and on-camera performances of parties to a litigation. Their
mere exposure to publications and publicity stunts does not per se fatally
infect their impartiality
At best, appellant can only conjure possibility of prejudice on the part of the
trial judge due to the barrage of publicity that characterized the investigation
and trial of the case. In Martelino, et al. v. Alejandro, et al., we rejected this
standard of possibility of prejudice and adopted the test of actual prejudice
as we ruled that to warrant a finding of prejudicial publicity, there must be
allegation and proof that the judges have been unduly influenced, not simply
that they might be, by the barrage of publicity. In the case at bar, the
records do not show that the trial judge developed actual bias against
appellant as a consequence of the extensive media coverage of the pre-trial
and trial of his case. The totality of circumstances of the case does not prove
this actual bias and he has not discharged the burden. [31]

We likewise dismiss the complaint filed by Judge Martin A. Ocampo against

Attorneys Raymundo A. Armovit, Ramon R. Teleron and Bernardito Florido
for lack of concrete evidence to prove that said lawyers deliberately withheld
from the Court the orders he issued with intent to mislead the Court.

Finally, we also deny the motion of the prosecutors to dismiss the petition on
the ground that it was not filed by the proper party. The prosecutors argue
that petitioner Francisco Juan Larranaga is no longer a minor under R.A.
6809, thus, his mother, Margarita G. Larranaga, does not have the authority
to file the instant petition as his representative. It appears, however, that on
October 6, 1997, petitioners mother filed a supplemental petition for habeas
corpus on his behalf. This converted the petition at bar to one for habeas
corpus. Section 3, Rule 102 of the Revised Rules of Court states that a
petition for habeas corpus may be filed either by the party for whose relief it
is intended or by some person on his behalf.

IN VIEW WHEREOF, we resolve to: (1) REITERATE our order to the Office of
the City Prosecutor of Cebu to conduct a regular preliminary investigation of
petitioner and to the Presiding Judge of RTC, Branch 7, Cebu City to cease
and desist from proceeding with the trial of petitioner until a preliminary
investigation shall have been conducted; (2) SET ASIDE our order to
immediately release petitioner pending the preliminary investigation and
thus DENY petitioners urgent motion to implement petitioners release; (3)
DISMISS Judge Ocampos complaint against Attorneys Raymundo A. Armovit,
Ramon R. Teleron and Bernardito Florido; and (4) DENY petitioners motion
to change the venue and the authority to conduct the preliminary
investigation.

SO ORDERED.

Regalado (Chairman), Melo, Mendoza and Martinez, JJ. concur.

<!--[if !supportEndnotes]-->

<!--[endif]-->
[1]
Rollo, pp. 10-30.
[2]
Rollo, pp. 105-109.
[3]
Rollo, pp. 130-145
[4]
Rollo, pp. 154-163
[5]
Rollo, pp. 178-179
[6]
Rollo, pp. 186-187.
[7]
Rollo, pp. 164-175.
[8]
Rollo, pp. 189-191.
[9]
Rollo, pp. 297-306.
[10]
Rollo, pp. 253-257.
[11]
At p. 256.
[12]
Rollo, pp. 260-275.
[13]
Sec 7. When accused lawfully arrested without warrant. - When a person
is lawfully arrested without a warrant for an offense cognizable by the
Regional Trial Court, the complaint or information may be filed by the
offended party, peace officer or fiscal without a preliminary investigation
having been first conducted, on the basis of the affidavit of the offended
party or arresting officer of person.
However, before the filing of such complaint or information, the person
arrested may ask for a preliminary investigation by a proper officer in
accordance with this Rule, but he must sign a waiver of the provisions of
Article 125 of the Revised Penal Code, as amended, with the assistance of a
lawyer and in case of non-availability of a lawyer, a responsible person of his
choice. Notwithstanding such waiver, he may apply for bail as provided in
the corresponding rule and the investigation must be terminated within
fifteen (15) days from its inception.

If the case has been filed in court without a preliminary investigation having
been first conducted, the accused may within five (5) days from the time he
learns of the filing of the information, ask for a preliminary investigation with
the same right to adduce evidence in his favor in the manner prescribed in
this Rule.
[14]
Section 1, Rule 113.
[15]
Section 2, Rule 113.
[16]
Moreno, Philippine Law Dictionary, third edition (1988), p. 72.
[17]
22 SCRA 638 (1968).
[18]
Go v. Court of Appeals, 206 SCRA 138 (1992).
[19]
Certificate of Arraignment, Original Records of CBU-45303, p. 121;
Certificate of Arraignment, Original Records of CBU-45304, p. 188.
[20]
Original Records of CBU-45303, pp. 1-3; Original Records of CBU-45304,
pp. 1-3.
[21]
Original Records of CBU-45304, p. 47
[22]
227 SCRA 627 (1993).
[23]
At pp. 639-641.
[24]
Torralba v. Sandiganbayan, 230 SCRA 33 (1994); Pilapil v.
Sandiganbayan, 221 SCRA 349 (1993); Doromal v. Sandiganbayan, 177
SCRA 354 (1989).
[25]
149 SCRA 1 (1987).
[26]
At pp. 3-4.
[27]
Sangguniang Bayan of Batac, Ilocos Norte v. Albano, 260 SCRA 561
(1996).
[28]
247 SCRA 652 (1995).
[29]
At pp. 691-692.
[30]
249 SCRA 54 (1995).
[31]
At pp. 104-106.
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351 Phil. 75

SECOND DIVISION

[ G.R. No. 130644, March 13, 1998 ]

THE MINOR FRANCISCO JUAN LARRANAGA, REPRESENTED IN THIS

SUIT BY HIS MOTHER, MARGARITA G. PRESENT: LARRANAGA,
PETITIONER VS. COURT OF APPEALS AND PEOPLE  OF  THE
PHILIPPPINES. RESPONDENTS.

RESOLUTION

PUNO, J.:

The following are submitted before the Court for resolution:

1.an urgent motion to implement petitioners release filed by petitioner on

November 3, 1997;
2.a motion for reconsideration of this Courts resolution of October 27, 1997
filed on November 17, 1997 by the counsels for the prosecution in Crim.
Case No. CBU-45303 and 45304;
3.a complaint filed by Judge Martin A. Ocampo, Presiding Judge, Regional
Trial Court, Branch 7, Cebu City, against petitioners counsels, Attorneys
Raymundo A. Armovit, Ramon R. Teleron and Bernardito Florido, for
allegedly deliberately withholding from this Court the omnibus order,
supplemental order and order of arraignment he issued on October 17,
1997, thus misleading the Court into issuing its resolution of October 27,
1997; and
4.an urgent motion to change the venue and the officers to conduct the
preliminary investigation filed by petitioner on November 17, 1997.

The antecedent facts:

Petitioner Francisco Juan Larranaga is charged with two counts of kidnapping

and serious illegal detention docketed as CBU-45303 and CBU-45304
pending before the Regional Trial Court (RTC), Branch 7, Cebu City. He is
presently detained at the Bagong Buhay Rehabilitation Center.
On October 1, 1997, petitioner, represented by his mother, Margarita G.
Larranaga, filed with this Court a petition for certiorari, prohibition and
mandamus with writs of preliminary prohibitory and mandatory injunction.
Petitioner alleged that he was denied the right to preliminary investigation
and sought to annul the informations as well as the warrant of arrest issued
in consequence thereof. In the alternative, petitioner prayed that a
preliminary investigation be conducted and that he be released from
detention pending the investigation.[1] Petitioner filed a supplemental petition
for habeas corpus or bail on October 6, 1997. [2]

On October 20, 1997, the Solicitor General filed a manifestation and motion
in lieu of comment submitting that petitioner should have been given a
regular preliminary investigation before the filing of the informations and the
issuance of the warrant of arrest. The Solicitor General recommended that
petitioner be accorded his right to preliminary investigation and that he be
released from detention during the pendency thereof. [3]

On October 27, 1997, we issued a resolution holding that petitioner was

deprived of his right to preliminary investigation when the City Prosecutor of
Cebu insisted that he was only entitled to an inquest investigation. [4] Hence,
we resolved:

1. to set aside the inquest investigation of petitioner and to order the Office
of the City Prosecutor of Cebu to conduct a regular preliminary investigation
of the petitioner in accord with Section 3, Rule 112;
2. to annul the Order for Detention During The Pendency of the Case issued
by Executive Judge Priscila Agana against the petitioner in Crim. Case No.
CBU-45303 and 45304;
3. to order the immediate release of petitioner pending his preliminary
investigation; and
4. to order the Presiding Judge of Br. VII, RTC of Cebu City to cease and
desist from proceeding with the arraignment and trial of petitioner in Crim.
Case No. CBU-45303 and 45304, pending the result of petitioners
preliminary investigation.

On October 30, 1997, petitioner filed with the RTC of Cebu an urgent ex
parte motion praying for his immediate release pursuant to our October 27
resolution.[5]

The following day, on October 31, 1997, Judge Martin A. Ocampo, Presiding
Judge of RTC Branch 7, Cebu City, issued an order deferring the resolution
of petitioners motion. It stated that it would be premature to act on the
motion since the trial court has not yet received an official copy of our
October 27 resolution and that said resolution has not yet attained finality.
Furthermore, Judge Ocampo called the Courts attention to the fact that
petitioner has been arraigned on October 14, 1997 and waived his right to
preliminary investigation.[6]

On November 3, 1997, petitioner filed with this Court an urgent motion

praying, among others, that Judge Ocampo be directed to order petitioners
immediate release upon receipt of our October 27 resolution. [7]
Judge Ocampo filed with this Court a letter-complaint dated November 3,
1997 alleging that petitioners counsels, Attorneys Raymundo A. Armovit,
Ramon R. Teleron and Bernardito Florido, deliberately withheld from this
Court the omnibus order, supplemental order and order of arraignment, all
issued by him on October 14, 1997 in connection with Crim. Case No. CBU-
45303 and 45304. Judge Ocampo alleged that by withholding said orders,
petitioners counsels unwittingly misled the Court in its October 27 resolution.
[8]

On November 17, 1997, the counsels for the prosecution in Crim. Case No.
CBU-45303 and 45304 filed a motion for reconsideration of our October 27
resolution.[9] They raised the following arguments:

1. Petitioner is charged with a continuing offense; hence, his arrest and

detention about two months after the abduction of the victims was lawful;
2. Since petitioner was arrested without a warrant, his case comes within
the purview of Section 7 of Rule 112, not under Section 3 thereof;
3. The filing of the informations in court and the issuance of the
corresponding warrants of arrest by Executive Judge Priscila S. Agana cured
whatever defect there was in petitioners arrest and detention;
4. Petitioner was validly arraigned on October 14, 1997 and the validity of
such arraignment was not set aside by this tribunal;
5. The case of Sanchez v. Demetriou squarely applies to the instant case;
and
6. Petitioner is no longer a minor pursuant to R.A. 6809.

The Solicitor General, meanwhile, in its comment to petitioners urgent

motion for release, modified its stance regarding the validity of petitioners
detention.[10] It stated:

Considering that petitioner was arraigned (a supervening event after the

filing of the petition and before the issuance of the TRO), petitioner should
be kept in detention without prejudice to his right to preliminary
investigation.[11]

Petitioner also filed on November 17, 1997 an urgent motion to transfer the
venue of the preliminary investigation from Cebu City to Manila and to
replace the Office of the City Prosecutor of Cebu with the Office of the State
Prosecutor, Department of Justice, as the authority to conduct the
preliminary investigation because of the extensive coverage of the
proceedings by the Cebu media which allegedly influenced the peoples
perception of petitioners character and guilt.[12]

The primary issues to be resolved are: (1) whether petitioner is entitled to a

regular preliminary investigation, and (2) whether petitioner should be
released from detention pending the investigation.

We resolve the first issue in the affirmative.

The prosecutors argue that petitioner is entitled only to an inquest

investigation under Section 7 of Rule 112 since he was lawfully arrested
without a warrant under Section 5, Rule 113 of the Revised Rules of Court.
The prosecutors argument is bereft of merit. Section 7 of Rule 112 [13] applies
only to persons lawfully arrested without a warrant. Petitioner in this case
was, in the first place, not arrested either by a peace officer or a private
person. The facts show that on September 15, 1997, some members of the
Philippine National Police Criminal Investigation Group (PNP CIG) went to the
Center for Culinary Arts in Quezon City to arrest petitioner, albeit without
warrant. Petitioner resisted the arrest and immediately phoned his sister and
brother-in-law. Petitioners sister sought the aid of Atty. Raymundo A.
Armovit. Atty. Armovit, over the phone, dissuaded the police officers from
carrying out the warrantless arrest and proposed to meet with them at the
CIG headquarters in Camp Crame, Quezon City. The police officers yielded
and returned to the CIG headquarters. Petitioner, together with his sister
and brother-in-law also went to the CIG headquarters aboard their own
vehicle. Atty. Armovit questioned the legality of the warrantless arrest
before CIG Legal Officer Ruben Zacarias. After consulting with his superiors,
Legal Officer Zacarias ordered to stop the arrest and allowed petitioner to go
home. Atty. Armovit made an undertaking in writing that he and petitioner
would appear before the Cebu City Prosecutor on September 17, 1997 for
preliminary investigation.

An arrest is defined as the taking of a person into custody in order that he

may be bound to answer for the commission of an offense. [14] It is made by
an actual restraint of the person to be arrested, or by his submission to the
custody of the person making the arrest.[15] An arrest signifies restraint on
person, depriving one of his own will and liberty, binding him to become
obedient to the will of the law.[16] The foregoing facts show no restraint upon
the person of petitioner. Neither do they show that petitioner was deprived
of his own will and liberty. Hence, Section 7 of Rule 112 does not apply to
petitioner.

To be sure, even if petitioner were arrested by the PNP CIG personnel, such
arrest would still be illegal because of the absence of a warrant. Section 5 of
Rule 113 states when a warrantless arrest is deemed lawful, thus:

Sec. 5.    Arrest without a 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.

It does not appear in the case at bar that petitioner has just committed, is
actually committing or is attempting to commit an offense when the police
officers tried to arrest him on September 15, 1997. In fact, petitioner was
attending classes at the Center for Culinary Arts at that time.

We reject the prosecutors' argument that petitioner was actually committing

a crime at the time of the arrest since kidnapping with serious illegal
detention is a continuing crime. In the case of Parulan v. Director of
Prisons[17] cited by the prosecutors, kidnapping with illegal detention is
considered a continuing crime where the deprivation of liberty is persistent
and continuing from one place to another. The facts show that the alleged
kidnapping was committed on July 16, 1997. One of the victims, Marijoy
Chiong, was found dead in Sitio Tanawan, Barangay Guadalupe, Carcar,
Cebu on July 18, 1997, while the other victim, Jacqueline Chiong, remains
missing to date. There is no showing that at the time of the arrest on
September 15, 1997, Jacqueline Chiong was being detained by petitioner
who was then residing in Quezon City. Hence, petitioner may not be
considered as continually committing the crime of kidnapping with serious
illegal detention at the time of the arrest.

Judge Martin Ocampo of RTC Branch 7, Cebu City, and the state prosecutors
assert that petitioner is no longer entitled to a preliminary investigation
because he had previously waived his right to such investigation. In his
omnibus order dated October 14, 1997, Judge Ocampo held that petitioner
waived his right to preliminary investigation when he failed to appear during
the preliminary investigation set by the City Prosecutor in the afternoon of
September 17, 1997, despite the express warning that "failure of the
counsel (to present the petitioner to the Cebu City Prosecutor on said time
and date) would be treated as a waiver of his clients right to preliminary
investigation."

We disagree. A waiver, whether express or implied, must be made in clear

and unequivocal manner. Mere failure of petitioner and his counsel to appear
before the City Prosecutor in the afternoon of September 17, 1997 cannot be
construed as a waiver of his right to preliminary investigation, considering
that petitioner has been vigorously invoking his right to a regular preliminary
investigation since the start of the proceedings before the City Prosecutor. At
9:00 in the morning of September 17, 1997, petitioners counsel appeared
before the City Prosecutor of Cebu and moved that petitioner be accorded a
regular preliminary investigation. The City Prosecutor, however, denied the
motion, stating that petitioner is entitled only to an inquest investigation.
Petitioner orally moved for a reconsideration, to no avail. Petitioner assailed
the decision of the City Prosecutor before the Court of Appeals on a petition
for certiorari, prohibition and mandamus. After the Court of Appeals
dismissed said petition, petitioner went to this Court, still asserting that he
should be accorded a regular preliminary investigation.

Furthermore, petitioner and his counsel cannot be faulted for their refusal to
comply with the City Prosecutors directive to appear before him in the
afternoon of September 17, 1997 for preliminary investigation. As stated
above, petitioners counsel appeared before the City Prosecutor earlier that
day and specifically demanded a regular preliminary investigation for his
client. The City Prosecutor, however, insisted that petitioner was entitled
only to an inquest investigation which he scheduled in the afternoon of the
same day. Petitioner and his counsel refused to submit to such investigation
as it might be construed as a waiver of petitioners right to a regular
preliminary investigation.

Our ruling is not altered by the fact that petitioner has been arraigned on
October 14, 1997. The rule is that the right to preliminary investigation is
waived when the accused fails to invoke it before or at the time of entering a
plea at arraignment.[18] Petitioner, in this case, has been actively and
consistently demanding a regular preliminary investigation even before he
was charged in court. Also, petitioner refused to enter a plea during the
arraignment because there was a pending case in this Court regarding his
right to avail of a regular preliminary investigation. [19] Clearly, the acts of
petitioner and his counsel are inconsistent with a waiver. Preliminary
investigation is part of procedural due process. It cannot be waived unless
the waiver appears to be clear and informed.

The next question is whether petitioner should be released from detention

pending the investigation.

We rule in the negative.

The records show that on September 17, 1997, two informations were filed
against petitioner for kidnapping and serious illegal detention. [20] Executive
Judge Priscila Agana issued a warrant of arrest on September 19, 1997. [21]
Petitioner was arrested on September 22, 1997 by virtue of said warrant.
We held in Sanchez v. Demetriou[22] that the filing of charges and the
issuance of the warrant of arrest against a person invalidly detained will cure
the defect of that detention or at least deny him the right to be released
because of such defect. The Court ruled:

The original warrantless arrest of the petitioner was doubtless illegal.

Nevertheless, the Regional Trial Court lawfully acquired jurisdiction over the
person of the petitioner by virtue of the warrant of arrest it issued on August
26, 1993 against him and the other accused in connection with the rape-slay
cases. It was belated, to be sure, but it was nonetheless legal.
Even on the assumption that no warrant was issued at all, we find that the
trial court still lawfully acquired jurisdiction over the person of the petitioner.
The rule is that if the accused objects to the jurisdiction of the court over his
person, he may move to quash the information, but only on that ground. If,
as in this case, the accused raises other grounds in the motion to quash, he
is deemed to have waived that objection and to have submitted his person
to the jurisdiction of the court.
The Court notes that on August 13, 1993, after the petitioner was unlawfully
arrested, Judge Lanzanas issued a warrant of arrest against Antonio L.
Sanchez in connection with Criminal Cases Nos. 93-124634 to 93-124637 for
violation of R.A. No. 6713. Pending the issuance of the warrant of arrest for
the rape-slay cases, this first warrant served as the initial justification for his
detention.
The Court also adverts to its uniform ruling that the filing of charges, and
the issuance of the corresponding warrant of arrest, against a person
invalidly detained will cure the defect of that detention or at least deny him
the right to be released because of such defect. Applicable by analogy to the
case at bar is Rule 102 Section 4 of the Rules of Court that:
Sec. 4. When writ is not allowed or discharge authorized.-If it appears that
the person alleged to be restrained of his liberty is in the custody of an
officer under process issued by a court or judge or by virtue of a judgment
or order of a court of record, and that the court or judge had jurisdiction to
issue the process, render the judgment, or make the order, the writ shall not
be allowed; or if the jurisdiction appears after the writ is allowed, the person
shall not be discharged by reason of any informality or defect in the process,
judgment, or order. Nor shall anything in this rule be held to authorize the
discharge of a person charged with or convicted of an offense in the
Philippines or of a person suffering imprisonment under lawful judgment.

In one case, the petitioner sued on habeas corpus on the ground that she
had been arrested by virtue of a John Doe warrant. In their return, the
respondents declared that a new warrant specifically naming her had been
issued, thus validating her detention. While frowning at the tactics of the
respondents, the Court said:

The case has, indeed, become moot and academic inasmuch as the new
warrant of arrest complies with the requirements of the Constitution and the
Rules of Court regarding the particular description of the person to be
arrested. While the first warrant was unquestionably void, being a general
warrant, release of the petitioner for that reason will be a futile act as it will
be followed by her immediate re-arrest pursuant to the new and valid
warrant, returning her to the same prison she will just have left. This Court
will not participate in such a meaningless charade.

The same doctrine has been consistently followed by the Court more
recently in the Umil case.[23] (citations omitted)

We hold, therefore, that petitioners detention at the Bagong Buhay

Rehabilitation Center is legal in view of the information and the warrant of
arrest against him. The absence of a preliminary investigation will not justify
petitioners release because such defect did not nullify the information and
the warrant of arrest against him.[24] We ruled in Sanciangco, Jr. v. People:
[25]

The absence of preliminary investigations does not affect the courts

jurisdiction over the case. Nor do they impair the validity of the information
or otherwise render it defective; but, if there were no preliminary
investigations and the defendants, before entering their plea, invite the
attention of the court to their absence, the court, instead of dismissing the
information, should conduct it or remand the case to the inferior court so
that the preliminary investigation may be conducted. [26]

As regards petitioners motion to change the venue and the authority to

conduct the preliminary investigation, we are constrained to dismiss the
same for lack of jurisdiction. The holding of a preliminary investigation is a
function of the Executive Department and not of the Judiciary. [27] Petitioner
should therefore address their plea to the Department of Justice that has
control and supervision over the conduct of preliminary investigations.

Nonetheless, even if the Court had jurisdiction over the issue, petitioners
motion should still be denied because it failed to allege and prove that the
City Prosecutor of Cebu has been actually affected by the publicity. We held
in Webb v. De Leon:[28]

Be that as it may, we recognize that pervasive and prejudicial publicity

under certain circumstances can deprive an accused of his due process right
to fair trial. Thus, in Martelino, et al. vs. Alejandro, et al., we held that to
warrant a finding of prejudicial publicity there must be allegation and proof
that the judges have been unduly influenced, not simply that they might be,
by the barrage of publicity. In the case at bar, we find nothing in the records
that will prove that the tone and content of the publicity that attended the
investigation of petitioners fatally infected the fairness and impartiality of the
DOJ Panel. Petitioners cannot just rely on the subliminal effects of publicity
on the sense of fairness of the DOJ Panel, for these are basically unbeknown
and beyond knowing. To be sure, the DOJ Panel is composed of an Assistant
Chief State Prosecutor and Senior State Prosecutors. Their long experience
in criminal investigation is a factor to consider in determining whether they
can easily be blinded by the klieg lights of publicity. Indeed, their 26-page
Resolution carries no indubitable indicia of bias for it does not appear that
they considered any extra-record evidence except evidence properly
adduced by the parties. The length of time the investigation was conducted
despite its summary nature and the generosity with which they
accommodated the discovery motions of petitioners speak well of their
fairness. At no instance, we note, did petitioners seek the disqualification of
any member of the DOJ Panel on the ground of bias resulting from their
bombardment of prejudicial publicity.[29]

We further held in People v. Teehankee:[30]

We cannot sustain appellants claim that he was denied the right to impartial
trial due to prejudicial publicity. It is true that the print and broadcast media
gave the case at bar pervasive publicity, just like all high profile and high
stake criminal trials. Then and now, we rule that the right of an accused to a
fair trial is not incompatible to a free press. To be sure, responsible reporting
enhances an accuseds right to a fair trial for, as well pointed out, a
responsible press has always been regarded as the handmaiden of effective
judicial administration, especially in the criminal field x x x. The press does
not simply publish information about trials but guards against the
miscarriage of justice by subjecting the police, prosecutors, and judicial
processes to extensive public scrutiny and criticism.
Pervasive publicity is not per se prejudicial to the right of an accused to fair
trial. The mere fact that the trial of the appellant was given a day-to-day,
gavel-to-gavel coverage does not by itself prove that the publicity so
permeated the mind of the trial judge and impaired his impartiality. For one,
it is impossible to seal the minds of members of the bench from pre-trial and
other off-court publicity of sensational criminal cases. The state of the art of
our communication system brings news as they happen straight to our
breakfast tables and to our bedrooms. These news form part of our everyday
menu of the facts and fictions of life. For another, or idea of a fair and
impartial judge is not that of a hermit who is out of touch with the world. We
have not installed the jury system whose members are overly protected
from publicity lest they lose their impartiality. Criticisms against the jury
system are mounting and Mark Twain’s wit and wisdom put them all in
better perspective when he observed: “When a getleman of high social
standing, intellegence, and probity swears that testimony given under the
same oath will overweigh with him, street talk and newspaper reports based
upon mere hearsay, he is worth a hundred jurymen who will swear to their
own ignorance and stupidity xxx. Why could not the jury law be so altered
as to give men of brains and honesty an equal chance with fools and
miscreants?” Our judges are learned in the law and trained to disregard off-
court evidence and on-camera performances of parties to a litigation. Their
mere exposure to publications and publicity stunts does not per se fatally
infect their impartiality
At best, appellant can only conjure possibility of prejudice on the part of the
trial judge due to the barrage of publicity that characterized the investigation
and trial of the case. In Martelino, et al. v. Alejandro, et al., we rejected this
standard of possibility of prejudice and adopted the test of actual prejudice
as we ruled that to warrant a finding of prejudicial publicity, there must be
allegation and proof that the judges have been unduly influenced, not simply
that they might be, by the barrage of publicity. In the case at bar, the
records do not show that the trial judge developed actual bias against
appellant as a consequence of the extensive media coverage of the pre-trial
and trial of his case. The totality of circumstances of the case does not prove
this actual bias and he has not discharged the burden. [31]

We likewise dismiss the complaint filed by Judge Martin A. Ocampo against

Attorneys Raymundo A. Armovit, Ramon R. Teleron and Bernardito Florido
for lack of concrete evidence to prove that said lawyers deliberately withheld
from the Court the orders he issued with intent to mislead the Court.

Finally, we also deny the motion of the prosecutors to dismiss the petition on
the ground that it was not filed by the proper party. The prosecutors argue
that petitioner Francisco Juan Larranaga is no longer a minor under R.A.
6809, thus, his mother, Margarita G. Larranaga, does not have the authority
to file the instant petition as his representative. It appears, however, that on
October 6, 1997, petitioners mother filed a supplemental petition for habeas
corpus on his behalf. This converted the petition at bar to one for habeas
corpus. Section 3, Rule 102 of the Revised Rules of Court states that a
petition for habeas corpus may be filed either by the party for whose relief it
is intended or by some person on his behalf.

IN VIEW WHEREOF, we resolve to: (1) REITERATE our order to the Office of
the City Prosecutor of Cebu to conduct a regular preliminary investigation of
petitioner and to the Presiding Judge of RTC, Branch 7, Cebu City to cease
and desist from proceeding with the trial of petitioner until a preliminary
investigation shall have been conducted; (2) SET ASIDE our order to
immediately release petitioner pending the preliminary investigation and
thus DENY petitioners urgent motion to implement petitioners release; (3)
DISMISS Judge Ocampos complaint against Attorneys Raymundo A. Armovit,
Ramon R. Teleron and Bernardito Florido; and (4) DENY petitioners motion
to change the venue and the authority to conduct the preliminary
investigation.

SO ORDERED.

Regalado (Chairman), Melo, Mendoza and Martinez, JJ. concur.

<!--[if !supportEndnotes]-->

<!--[endif]-->
[1]
Rollo, pp. 10-30.
[2]
Rollo, pp. 105-109.
[3]
Rollo, pp. 130-145
[4]
Rollo, pp. 154-163
[5]
Rollo, pp. 178-179
[6]
Rollo, pp. 186-187.
[7]
Rollo, pp. 164-175.
[8]
Rollo, pp. 189-191.
[9]
Rollo, pp. 297-306.
[10]
Rollo, pp. 253-257.
[11]
At p. 256.
[12]
Rollo, pp. 260-275.
[13]
Sec 7. When accused lawfully arrested without warrant. - When a person
is lawfully arrested without a warrant for an offense cognizable by the
Regional Trial Court, the complaint or information may be filed by the
offended party, peace officer or fiscal without a preliminary investigation
having been first conducted, on the basis of the affidavit of the offended
party or arresting officer of person.

However, before the filing of such complaint or information, the person

arrested may ask for a preliminary investigation by a proper officer in
accordance with this Rule, but he must sign a waiver of the provisions of
Article 125 of the Revised Penal Code, as amended, with the assistance of a
lawyer and in case of non-availability of a lawyer, a responsible person of his
choice. Notwithstanding such waiver, he may apply for bail as provided in
the corresponding rule and the investigation must be terminated within
fifteen (15) days from its inception.

If the case has been filed in court without a preliminary investigation having
been first conducted, the accused may within five (5) days from the time he
learns of the filing of the information, ask for a preliminary investigation with
the same right to adduce evidence in his favor in the manner prescribed in
this Rule.
[14]
Section 1, Rule 113.
[15]
Section 2, Rule 113.
[16]
Moreno, Philippine Law Dictionary, third edition (1988), p. 72.
[17]
22 SCRA 638 (1968).
[18]
Go v. Court of Appeals, 206 SCRA 138 (1992).
[19]
Certificate of Arraignment, Original Records of CBU-45303, p. 121;
Certificate of Arraignment, Original Records of CBU-45304, p. 188.
[20]
Original Records of CBU-45303, pp. 1-3; Original Records of CBU-45304,
pp. 1-3.
[21]
Original Records of CBU-45304, p. 47
[22]
227 SCRA 627 (1993).
[23]
At pp. 639-641.
[24]
Torralba v. Sandiganbayan, 230 SCRA 33 (1994); Pilapil v.
Sandiganbayan, 221 SCRA 349 (1993); Doromal v. Sandiganbayan, 177
SCRA 354 (1989).
[25]
149 SCRA 1 (1987).
[26]
At pp. 3-4.
[27]
Sangguniang Bayan of Batac, Ilocos Norte v. Albano, 260 SCRA 561
(1996).
[28]
247 SCRA 652 (1995).
[29]
At pp. 691-692.
[30]
249 SCRA 54 (1995).
[31]
At pp. 104-106.

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288 Phil. 350

THIRD DIVISION

[ G.R. No. 99050, September 02, 1992 ]

PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. CONWAY B.

OMAWENG, ACCUSED-APPELLANT.

DECISION

DAVIDE, JR., J.:

Accused Conway B. Omaweng was originally indicted for the violation of Section 4,
Article II of Republic Act No. 6425, otherwise known as the Dangerous Drugs Act of
1972, as amended, in a criminal complaint filed with the Municipal Trial Court of
Bontoc, Mountain Province on 12 September 1988.[1] Upon his failure to submit
counter-affidavits despite the granting of an extension of time to do so, the court
declared that he had waived his right to a preliminary investigation and, finding
probable cause against the accused, ordered the elevation of the case to the proper
court.[2]
On 14 November 1988, the Office of the Provincial Fiscal of Mountain Province filed
an Information charging the accused with the violation of Section 4, Article II of the
Dangerous Drugs Act of 1972, as amended. The accusatory portion thereof reads:

"That on or about September 12, 1988, at Dantay, Bontoc,

Mountain Province, and within the jurisdiction of this Honorable
Court, the above-named accused, without being authorized by law,
did then and there willfully, unlawfully and feloniously dispatch in
transit or transport in a Ford Fiera, owned and driven by him, 10¼
kilos of processed marijuana in powder form contained in 41 plastic
bags of different sizes which were placed in a travelling bag
destained (sic) and intended for delivery, disposition and sale in
Sagada, Mountain Province, with full knowledge that said processed
marijuana is (sic) prohibited drug or from which (sic) prohibited
drug maybe manufactured.

CONTRARY TO LAW."[3]

The case was docketed as Criminal Case No. 713.

After his motion for reinvestigation was denied by the Provincial Fiscal,[4] the
accused entered a plea of not guilty during his arraignment on 20 June 1989.
During the trial on the merits, the prosecution presented four (4) witnesses. The
accused did not present any evidence other than portions of the Joint Clarificatory
Sworn Statement, dated 23 December 1988, of prosecution witnesses Joseph
Layong and David Fomocod.
On 21 March 1991, the trial court promulgated its Judgment[5] convicting the
accused of the crime of transporting prohibited drugs penalized under Section 4,
Article II of R.A. No. 6425, as amended. The dispositive portion of the decision
reads:

"WHEREFORE, judgment is hereby rendered imposing upon the

accused herein the penalty of life imprisonment and a fine of
Twenty Five Thousand Pesos.

Pursuant to Sec. 20, Art. IV of the aforecited special law, the drugs
subject of the crime are ordered confiscated and forfeited in favor
of the Government. Accordingly, it is further directed that such
drugs so confiscated and forfeited be destroyed without delay per
existing rules and regulations on the matter.

Costs against the accused.

SO ORDERED."[6]

Hence, this appeal.

In the Appellant's Brief, accused imputes upon the trial court the commission of the
following errors:

"I

x x x IN CONVICTING THE ACCUSED DESPITE INSUFFICIENCY OF

EVIDENCE TO PROVE HIS GUILT BEYOND REASONABLE DOUBT.

II

x x x IN NOT CONSIDERING THE JOINT CLARIFICATORY

STATEMENT OF THE ARRESTING OFFICERS TO THE EFFECT THAT
THE ACCUSED IS NOT THE OWNER OF THE PROHIBITED DRUG
SUBJECT OF THIS CASE.

III

x x x IN NOT RULING THAT THE CONTRABAND SUBJECT OF THE

INSTANT CASE IS INADMISSIBLE IN EVIDENCE FOR HAVING BEEN
OBTAINED IN VIOLATION OF THE CONSTITUTIONAL RIGHT OF THE
ACCUSED AGAINST UNREASONABLE SEARCH (sic) AND
SEIZURE."[7]

The appeal is without merit. The decision appealed from must be upheld.
After a careful review and evaluation of the evidence, We find to have been fully
proven the following facts as summarized by the Solicitor General in the Brief for
the Appellee.[8]

"In the morning of September 12, 1988, Joseph Layong, a PC

 constable with the Mt. Province PC Command at Bontoc, Mt.
Province proceeded with other PC soldiers to Barrio Dantay, Bontoc
and, per instruction of their officer, Capt. Eugene Martin, put up a
checkpoint at the junction of the roads, one going to Sagada and
the other to Bontoc (TSN, November 9, 1989, pp. 3-4). They
stopped and checked all vehicles that went through the checkpoint
(TSN, April 5, 1990, p. 12).

At about 9:15 A.M., Layong and his teammate, Constable David

Osborne Famocod (sic), saw and flagged down a cream-colored
Ford Fiera bearing Plate No. ABT-634 coming from the Bontoc
Poblacion and headed towards Baguio (TSN, November 9, 1989,
pp. 4-5, 8). The vehicle was driven by appellant and had no
passengers (TSN, November 9, 1989, pp. 4-5).

Layong and his companions asked permission to inspect the vehicle

and appellant acceded to the request (TSN, November 9, 1989, pp.
4-5). When they peered into the rear of the vehicle, they saw a
travelling bag which was partially covered by the rim of a spare tire
under the passenger seat on the right side of the vehicle (TSN,
November 9, 1989, pp. 6, 10, 11).

Layong and his companions asked permission to see the contents

of the bag (TSN, November 9, 1989, p. 6). Appellant consented to
the request but told them that it only contained some clothes (TSN,
November 9, 1989, p. 6). When Layong opened the bag, he found
that it contained forty-one (41) plastic packets of different sizes
containing pulverized substances (TSN, November 9, 1989, pp. 7,
9).

Layong gave a packet to his team leader, constable David Osborne

Fomocod, who, after sniffing the stuff concluded that it was
marijuana (TSN, November 9, 1989, p. 16).

The PC constables, together with appellant, boarded the latter's

Ford Fiera and proceeded to the Bontoc poblacion to report the
incident to the PC Headquarters (TSN, November 9, 1989, pp. 7-8).
The prohibited drugs were surrendered to the evidence custodian,
Sgt. Angel Pokling (TSN, November 9, 1989, pp. 7-8).

Major Carlos Figueroa, a PC Forensic Chemist at Camp Dangwa, La

Trinidad, Benguet, who has conducted more than 2500 professional
examinations of marijuana, shabu and cocaine samples, conducted
two chemistry examinations of the substance contained in the
plastic packets taken from appellant and found them to be positive
for hashish or marijuana (TSN, October 24, 1990, pp. 3, 5-81)."[9]

Anent the first assigned error, the accused contends that the prosecution failed to
prove that he is the owner of the marijuana found inside the travelling bag which
he had in his vehicle, a Ford Fiera. Proof of ownership is immaterial. Accused was
prosecuted for the dispatching in transit or transporting of prohibited drugs
pursuant to Section 4, Article II of R.A. No. 6425, as amended. This section does
not require that for one to be liable for participating in any of the proscribed
transactions enumerated therein, he must be the owner of the prohibited drug. It
simply reads:

"SEC. 4. Sale, Administration, Delivery, Distribution and

Transportation of Prohibited Drugs. -- The penalty of life
imprisonment to death and a fine ranging from twenty thousand to
thirty thousand 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. 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."

This section penalizes the pusher, who need not be the owner of the prohibited
drug. The law defines pusher as "any person who sells, administers, delivers, or
gives away to another, on any terms whatsoever, or distributes, dispatches in
transit or transports any dangerous drug or who acts as a broker in any of such
transactions, in violation of this Act.[10]
In People vs. Alfonso,[11] where the accused was charged with the unlawful
transportation of marijuana under the aforesaid Section 4, this Court ruled that
ownership is not a basic issue.
The facts, as proven by the prosecution, establish beyond cavil that the accused
was caught in the act of transporting the prohibited drug or, in other words, in
flagrante delicto. That he knew fully well what he was doing is shown beyond moral
certainty by the following circumstances: (a) the prohibited drug was found in a
travelling bag, (b) he is the owner of the said bag, (c) he concealed the bag behind
a spare tire, (d) he was travelling alone, and (e) the Ford Fiera in which he loaded
the bag was under his absolute control; pursuant to Section 4, Rule 133 of the
Rules of Court (on circumstantial evidence), the combination of all these
circumstances is such as to produce a conviction beyond reasonable doubt. Such
circumstances, unrebutted by strong and convincing evidence by the accused, even
gave rise to the presumption that he is the owner of the prohibited drug.[12]
The second assigned error is devoid of merit. The declaration in the joint
clarificatory sworn statement executed by the apprehending officers, that the
marijuana subject of the case was surreptitiously placed by an unknown person in
the bag of the accused, is not supported by evidence. Said sworn statement cannot
be used as a basis for exoneration because the very same officers who signed the
same reiterated on the witness stand their statements in their original affidavit
implicating the accused; both the criminal complaint before the Municipal Trial
Court of Bontoc and the information in this case were based on this original
affidavit. No probative value could be assigned to it not only because it was
procured by the defense under questionable circumstances, but also because the
affiants therein merely expressed their personal opinion. The trial court's correct
exposition on this point, to which nothing more may be added, deserves to be
quoted, thus:

"From the portions of the ‘Joint Clarificatory Sworn Statement’ of

prosecution witnesses Layong and Fomocod cited (Exhs. "I" to "I-
C"; p. 155, Record), the defense would want this Court to draw the
inference that the accused Conway Omaweng is innocent as
 confirmed by no less than the persons who apprehended the
suspect in flagranti (sic). In other words, that the said accused is
not the owner of the contraband confiscated but someone else;
that to (sic) mysterious individual placed the prohibited articles
inside the travelling bag of the accused without the knowledge and
consent of the latter; and that the identity of this shadowy third
person is known by the PC/INP investigators. The isolated
declarations, albeit under oath are much too asinine to be true and
do not affect the credibilities of the witnesses -- affiants and the
truth of their affirmations on the stand. As gleaned from parts of
the record of the reinvestigation of this case conducted by the
Provincial Fiscal (Exhs. "G" and "D"; pp. 158 and 161, Record), it
appears that Layong and Fomocod were prevailed upon to affix
their signatures to (sic) the document styled as ‘Joint Clarificatory
Sworn Statement’ by interested persons in a vain ploy to extricate
the accused from the morass he got himself into. Testifying in open
court, the same witnesses maintained the tenor of their original
affidavit supporting the filing of the criminal complaint in the lower
court (Exh. "C"; p. 2, Record). No additional information was
elicited from said witnesses during their examination from which it
can reasonably be deduced that a third person instead of the
accused is the culprit and that the suspect is being framed-up for a
crime he did not commit. Nonetheless, granting arguendo that the
declarations of Layong and Fomocod now the bone of contention,
are on the level, the same are but mere opinions and conclusions
without bases. Any which way, to believe that any person in his
right mind owning several kilos of hot hashish worth tens of
thousands of pesos would simply stash it away in the travelling bag
of someone he has no previous agreement with is a mockery of
common sense. And to think further that the PC/INP agents know
of such fact yet they kept the vital information under ‘confidential
Status’ (whatever that means in police parlance) while an innocent
person is being prosecuted and practically in the shadow of the
gallows for the offense would be stretching human credulity to the
snapping point. By and large, the fact remains as the
circumstances logically indicate that the accused Conway Omaweng
has knowledge of the existence of the contraband inside his vehicle
and he was caught red-handed transporting the hot stuff."[13]

The third assignment of error hardly deserves any consideration. Accused was not
subjected to any search which may be stigmatized as a violation of his
Constitutional right against unreasonable searches and seizures.[14] If one had
been made, this Court would be the first to condemn it "as the protection of the
citizen and the maintenance of his constitutional rights is one of the highest duties
and privileges of the Court."[15] He willingly gave prior consent to the search and
voluntarily agreed to have it conducted on his vehicle and travelling bag.
Prosecution witness Joseph Layong testified thus:

"PROSECUTOR AYOCHOK:

Q    When you and David Fomocod saw the travelling bag, what did
you do?

A     When we saw that travelling bag, we asked the driver if we

 could see the contents.

Q    And what did or what was the reply of the driver, if there was
any?

A     He said ‘you can see the contents but those are only clothings
(sic).’

Q    When he said that, what did you do?

A     We asked him if we could open and see it.

Q    When you said that, what did he tell you?

A     He said ‘you can see it.’

Q    And when he said ‘you can see and open it,’ what did you do?

A     When I went inside and opened the bag, I saw that it was not
clothings (sic) that was contained in the bag.

Q    And when you saw that it was not clothings (sic), what did you
do?

A When I saw that the contents were not clothes, I took some of
the contents and showed it to my companion Fomocod and when
Fomocod smelled it, he said it was marijuana."[16]

This testimony was not dented on cross-examination or rebutted by the accused for
he chose not to testify on his own behalf.
Thus, the accused waived his right against unreasonable searches and seizures. As
this Court stated in People vs. Malasugui:[17]

"x x x When one voluntarily submits to a search or consents to

have it made of (sic) his person or premises, he is precluded from
later complaining thereof (Cooley, Constitutional Limitations, 8th
ed., vol. I, page 631.) The right to be secure from unreasonable
search may, like every right, be waived and such waiver may be
made either expressly or impliedly."

Since in the course of the valid search forty-one (41) packages of drugs were
found, it behooved the officers to seize the same; no warrant was necessary for
such seizure. Besides, when said packages were identified by the prosecution
witnesses and later on formally offered in evidence, the accused did not raise any
objection whatsoever. Thus, in the accused's Comments And/Or Objections To Offer
of Evidence,[18] We merely find the following:

"EXHIBIT                                                                                
COMMENTS AND/OR OBJECTIONS

"A"                            The bag was not positively identified to be

the same bag allegedly found inside the vehicle driven by the
accused. The arresting officers failed to show any identifying
marks; thus, said bag is an irrelevant evidence not admissible in
 court;

"A-1" to "A-40"                  Objected to also as irrelevant as the 40

bags now being offered are not the same bags alleged in the
information which is 41 bags. The prosecution failed to proved (sic)
beyond reasonable doubt that Exhibit "A-1" to "A-40" are the same
bags allegedly taken from inside Exhibit "A" because what is
supposed to be inside the bag are 41 bags and not 40 bags."

x        x         x

WHEREFORE, the decision of Branch 36 of the Regional Trial Court of Bontoc,

Mountain Province of 21 March 1991 in Criminal Case No. 713 finding the accused
CONWAY B. OMAWENG guilty beyond reasonable doubt of the crime charged, is
hereby AFFIRMED.
Costs against the accused.
SO ORDERED.

Gutierrez, Jr., (Chairman), Bidin, and Romero, JJ., concur.

Feliciano, J., on official leave.

[1] Original Records, 1.

[2] Id., 28-29.
[3] Original Records, 30.
[4] Id., 163.
[5] Id., 355-361.
[6] Original Records, 361.
[7] Rollo, 149.
[8] Rollo, 183, et seq.
[9] Brief for the Appellee, 4-6.
[10] Section 2 (m), R.A. No. 6425, as amended.
[11] 186 SCRA 576 [1990].
[12] Section 3 (j), Rule 131, Rules of Court.
[13] Original Records, 359-360; Rollo, 116-117.
[14] Section 2, Article III, 1987 Constitution.
[15] Rodriguez vs. Villamiel, 65 Phil. 230 [1937].
[16] TSN, 9 November 1989, 6-7.
[17] 63 Phil. 221, 226 [1936]. See also Vda. de Garcia vs. Locsin, 65 Phil. 689
[1938]; People vs. Donato, 198 SCRA 130 [1991]; People vs. Rodrigueza, 205
SCRA 791 [1992].
[18] Original Records, 344.
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335 Phil. 440

SECOND DIVISION

[ G.R. Nos. 119772-73, February 07, 1997 ]

PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. NIGEL

RICHARD GATWARD, AND U AUNG WIN, ACCUSED, NIGEL RICHARD
GATWARD, ACCUSED-APPELLANT.
DECISION
REGALADO, J.:

The accession into our statute books on December 31, 1993 of Republic Act
No. 7659,[1]  which authorized the re-imposition of the death penalty and
amended certain provisions of the Revised Penal Code and the Dangerous
Drugs Act of 1972, raised the level of expectations in the drive against
criminality. As was to be expected, however, some innovations therein
needed the intervention of this Court for a judicial interpretation of
amendments introduced to the dangerous drugs law. [2]

The same spin-off of novelty, this time by the new provision fixing the
duration of reclusion perpetua which theretofore had not been spelled out
with specificity in the Revised Penal Code, produced some conflicting
constructions, more specifically on whether such penalty is divisible or
indivisible in nature. That is actually the major issue in these cases, the
factual scenario and the culpability of both accused having been.

The antecedents being undisputed, and with a careful review and

assessment of the records of this case having sustained the same, we
reproduce hereunder the pertinent parts of the decision of the trial court
jointly deciding the criminal cases separately filed against each of the
accused. Although only one of them, Nigel Richard Gatward, has appealed
his conviction to us, for reasons hereinafter explained we shall likewise
include the disposition by the court a quo of the case against U Aung Win.

1. The lower court stated the cases against the accused, the proceedings
therein and its findings thereon, as follows:

In Criminal Case No. 94-6268, the accused is charged with violating Section
4 of Republic Act No. 6425, the Dangerous Drugs Act of 1972, allegedly in
this manner:

“That on or about the 31st (sic) day of August 1994, in the vicinity of the
Ninoy Aquino International Airport, Pasay City, x x x , the above-named
accused not being authorized by law, did then and there wilfully, unlawfully
and feloniously transport heroin (2605.70 grams and 2632.0 grams)
contained in separate carton envelopes with a total weight of 5237.70 grams
which is legally considered as a prohibited drug.” (Information dated Sept.
14, 1994)

In Criminal Case No. 94-6269, the accused is indicted for transgressing

Section 3 of the Dangerous Drugs Act of 1972, purportedly in this way:

“That on or about the 30th day of August 1994, at the arrival area of Ninoy
Aquino International Airport, Pasay City, x x x, the above-named accused
not being authorized by law, did, then and there wilfully, unlawfully and
feloniously import and bring into the Philippines 5579.80 grams of heroin
which is legally considered as a prohibited drug.” (Information also dated
Sept. 14, 1994)

Accused Nigel Richard Gatward in Criminal Case No. 94-6268 pleaded not
guilty of the charge when arraigned.
On the other hand, accused U Aung Win in Criminal Case No. 94-6269,
assisted by Atty. Willy Chan of the Public Attorney’s Office of the Department
of Justice, entered a plea of guilty of the crime charged upon his
arraignment. Since it is a capital offense, the Court asked searching
questions to determine the voluntariness and the full comprehension by the
accused of the consequences of his plea. The accused manifested that he
was entering a plea of guilty voluntarily without having been forced or
intimidated into doing it. The nature of the charge was explained to him,
with emphasis that the offense carries with it the penalty of reclusion
perpetua to death and his pleading guilty of it might subject him to the
penalty of death. The accused answered that he understood fully the charge
against him and the consequences of his entering a plea of guilty. The
defense counsel likewise made an assurance in open court that he had
explained to U Aung Win the nature of the charge and the consequences of
his pleading guilty of it.

Having been thus apprised, the accused still maintained his plea of guilty of
the offense charged against him. Since the offense admitted by him is
punishable by death, the case was still set for trial for the reception of the
evidence of the prosecution to prove the guilt and the degree of culpability
of the accused and that of the defense to establish mitigating circumstances.

Upon motion of the prosecution without any objection from the defense,
these two cases were consolidated and tried jointly, since the offenses
charged arose from a series of related incidents and the prosecution would
be presenting common evidence in both.

At about 3:30 in the afternoon of August 30, 1994, accused U Aung Win, a
passenger of TG Flight No. 620 of the Thai Airways which had just arrived
from Bangkok, Thailand, presented his luggage, a travelling bag about 20
inches in length, 14 inches in width and 10 inches in thickness, for
examination to Customs Examiner Busran Tawano, who was assigned at the
Arrival Area of the Ninoy Aquino International Airport (NAIA) in Pasay City.
The accused also handed to Tawano his Customs Declaration No. 128417
stating that he had no articles to declare. When Tawano was about to
inspect his luggage, the accused suddenly left, proceeding towards the
direction of Carousel No. 1, the conveyor for the pieces of luggage of the
passengers of Flight No. 620, as if to retrieve another baggage from it.

After having inspected the luggages of the other incoming passengers,

Tawano became alarmed by the failure of U Aung Win to return and
suspected that the bag of the accused contained illegal articles. The Customs
Examiner reported the matter to his superiors. Upon their instructions, the
bag was turned over to the office of the Customs Police in the NAIA for x-ray
examination where it was detected that it contained some powdery
substance. When opened, the bag revealed two packages containing the
substance neatly hidden in between its partitions. Representative samples of
the substance were examined by Elizabeth Ayonon, a chemist of the Crime
Laboratory Service of the Philippine National Police (PNP) assigned at the
Arrival Area of the NAIA, and by Tita Advincula, another chemist of the PNP
Crime Laboratory Service at Camp Crame, and found to be positive for
heroin. The two chemists concluded that the entire substance, with a total
weight of 5,579.80 grams, contained in the two packages found in the bag of
U Aung Win, is heroin.

A manhunt was conducted to locate U Aung Win. The personnel of the

Bureau of Immigration and Deportation in the NAIA were asked to place the
accused in the hold order list. The offices of the different airlines in the
airport were also alerted to inform the Enforcement and Security Service and
the Customs Police Division of the NAIA of any departing passenger by the
name of U Aung Win who would check in at their departure counters. A team
was likewise sent to the Park Hotel in Belen St., Paco, Manila, which accused
U Aung Win had indicated in his Customs Declaration as his address in the
Philippines. But the accused was not found in that hotel.

At about 7:45 p.m. of the same date of August 30, 1994, Rey Espinosa, an
employee of the Lufthansa Airlines, notified the commander of the NAIA
Customs Police District Command that a certain Burmese national by the
name of U Aung Win appeared at the check-in counter of the airline as a
departing passenger. Immediately, a team of law enforcers proceeded to the
Departure Area and apprehended the accused after he had been identified
through his signatures in his Customs Declaration and in his Bureau of
Immigration and Deportation Arrival Card. Customs Examiner Tawano also
positively identified the accused as the person who left his bag with him at
the Arrival Area of the NAIA.

During the investigation of U Aung Win, the agents of the Customs Police
and the Narcotics Command (NARCOM) gathered the information that the
accused had a contact in Bangkok and that there were other drug couriers in
the Philippines. Following the lead, a team of lawmen, together with U Aung
Win, was dispatched to the City Garden Hotel in Mabini St., Ermita, Manila,
to enable U Aung Win to communicate with his contact in Bangkok for
further instructions. While the police officers were standing by, they noticed
two persons, a Caucasian and an oriental, alight from a car and enter the
hotel. U Aung Win whispered to Customs Police Special Agent Edgar
Quiñones that he recognized the two as drug couriers whom he saw talking
with his contact in Bangkok named Mau Mau. The members of the team
were able to establish the identity of the two persons as accused Nigel
Richard Gatward and one Zaw Win Naing, a Thailander, from the driver of
the hotel service car used by the two when they arrived in the hotel. It was
gathered by the law enforcers that Gatward and Zaw Win Naing were
scheduled to leave for Bangkok on board a KLM flight.

On August 31, 1994, operatives of the NAIA Customs Police mounted a

surveillance operation at the Departure Area for Gatward and Zaw Win Naing
who might be leaving the country. At about 7:45 p.m. of the same date,
Special Agent Gino Minguillan of the Customs Police made a verification on
the passenger manifest of KLM Royal Dutch Airlines Flight No. 806, bound
for Amsterdam via Bangkok, which was scheduled to depart at about 7:55
that evening. He found the name “GATWARD/NRMR” listed therein as a
passenger for Amsterdam and accordingly informed his teammates who
responded immediately. Customs Police Captain Juanito Algenio requested
Victorio Erece, manager of the KLM airline at the NAIA, to let passenger
Gatward disembark from the aircraft and to have his checked-in luggage, if
any, unloaded. The manager acceded to the request to off-load Gatward but
not to the unloading of his check-in bag as the plane was about to depart
and to do so would unduly delay the flight. However, Erece made an
assurance that the bag would be returned immediately to the Philippines on
the first available flight from Bangkok. Upon his disembarkment, Gatward
was invited by the police officers for investigation.

At about 3:00 o’clock in the afternoon of September 1, 1994, Gatward’s

luggage, a travelling bag almost of the same size as that of U Aung Win, was
brought back to the NAIA from Bangkok through the Thai Airways, pursuant
to the request of Erece which was telexed in the evening of August 31,
1994, to the KLM airline manager in Bangkok. Upon its retrieval, the law
enforcers subjected the bag to x-ray examinations in the presence of
accused Gatward and some Customs officials. It was observed to contain
some powdery substance. Inside the bag were two improvised envelopes
made of cardboard each containing the powdery substance, together with
many clothes. The envelopes were hidden inside the bag, one at the side in
between a double-wall, the other inside a partition in the middle. Upon its
examination by Chemists Ayonon and Advincula pursuant to the request of
Police Senior Inspector John Campos of the NARCOM, the powdery
substance contained in the two cardboard envelopes, with a net weight of
5,237.70 grams, was found to be heroin.[3]

The court below made short shrift of the defense raised by herein appellant.
Apart from the well-known rule on the respect accorded to the factual
findings of trial courts because of the vantage position they occupy in that
regard, we accept its discussion thereon by reason of its clear concordance
with the tenets of law and logic. Again we quote:

Accused Gatward denied that the bag containing the heroin was his luggage.
However, that the said bag belongs to him is convincingly shown by the fact
that the serial number of the luggage tag, which is KL 206835, corresponds
to the serial number of the luggage claim tag attached to the plane ticket of
the accused. Moreover, as testified to by Manager Erece of the KLM airline,
the luggage of Gatward located in Container No. 1020 of KLM Flight No. 806
was the same luggage which was returned to the NAIA on September 1,
1994, on board Thai Airways TG Flight No. 620, pursuant to the request
made by him to the KLM manager in Bangkok. The testimony of Erece
should be given weight in accordance with the presumption that the ordinary
course of business has been followed. (Sec. 3(q), Rule 131, Revised Rules on
Evidence). No circumstance was shown by the defense which would create a
doubt as to the identity of the bag as the luggage of Gatward which he
checked in for KLM Flight No. 806 for Amsterdam with stopover in Bangkok.

Accused Gatward was present during the opening of his bag and the
examination of its contents. He was also interviewed by some press
reporters in connection with the prohibited drug found in the bag. Gatward
did not then disclaim ownership of the bag and its heroin contents. His
protestations now that the bag does not belong to him should be deemed as
an afterthought which deserves no credence.
Gatward posited that he checked in a different bag when he boarded KLM
Flight No. 806, explaining that upon his apprehension by the agents of the
NAIA Customs Police, he threw away the claim tag for the said luggage. He
alleged that the said bag contained, among other things, not only important
documents and papers pertaining to his cellular phone business in the
pursuit of which he came to the Philippines, but also money amounting to L
1,500.00. Gatward stressed that the bag did not have any illegal articles in
it. If this were so, it was unusual for him, and certainly not in accordance
with the common habit of man, to have thrown away the claim tag, thereby
in effect abandoning the bag with its valuable contents. Not having been
corroborated by any other evidence, and being rendered unbelievable by the
circumstances accompanying it as advanced by him, the stand of accused
Gatward that his luggage was different from that which contained the
5,237.70 grams of heroin in question commands outright rejection. [4]

The trial court was also correct in rejecting the challenge to the admissibility
in evidence of the heroin retrieved from the bag of appellant. While no
search warrant had been obtained for that purpose, when appellant checked
in his bag as his personal luggage as a passenger of KLM Flight No. 806 he
thereby agreed to the inspection thereof in accordance with customs rules
and regulations, an international practice of strict observance, and waived
any objection to a warrantless search. His subsequent arrest, although
likewise without a warrant, was justified since it was effected upon the
discovery and recovery of the heroin in his bag, or in flagrante delicto.

The conviction of accused U Aung Win in Criminal Case No. 94-6269 is

likewise unassailable. His culpability was not based only upon his plea of
guilty but also upon the evidence of the prosecution, the presentation of
which was required by the lower court despite said plea. The evidence thus
presented convincingly proved his having imported into this country the
heroin found in his luggage which he presented for customs examination
upon his arrival at the international airport. There was, of course, no
showing that he was authorized by law to import such dangerous drug, nor
did he claim or present any authority to do so.

2. It is, however, the penalties imposed by the trial court on the two accused
which this Court cannot fully accept. This is the presentation made, and the
rationalization thereof, by the court below:

According to Section 20 of the Dangerous Drugs Act of 1972, as amended by

Republic Act No. 7659, the penalties for the offenses under Sections 3 and 4
of the said Act shall be applied if the dangerous drugs involved, with
reference to heroin, is 40 grams or more. Since the heroin subject of each of
these two cases exceeds 40 grams, it follows that the penalty which may be
imposed on each accused shall range from reclusion perpetuato death.

To fix the proper penalty, it becomes necessary to determine whether any

mitigating or aggravating circumstance had attended the commission of the
offenses charged against the accused. With respect to Gatward, no
aggravating or mitigating circumstance was shown which might affect his
criminal liability. Relative to U Aung Win, no aggravating circumstance was
likewise established by the prosecution. However, the voluntary plea of
guilty of the said accused, which was made upon his arraignment and
therefore before the presentation of the evidence of the prosecution, should
be appreciated as a mitigating circumstance.

Under Article 63 of the Revised Penal Code, which prescribes the rules for
the application of indivisible penalties, in all cases in which the law
prescribes a penalty composed of two indivisible penalties, the lesser penalty
shall be applied, if neither mitigating nor aggravating circumstances are
present in the commission of the crime, or if the act is attended by a
mitigating circumstance and there is no aggravating circumstance. However,
this rule may no longer be followed in these cases, although the penalty
prescribed by law is reclusion perpetuato death, since reclusion perpetua,
which was an indivisible penalty before, is now a divisible penalty with a
duration from 20 years and one (1) day to 40 years, in accordance with
Article 27 of the Revised Penal Code, as amended by Republic Act No. 7659.

Consequently, the penalty of “reclusion perpetuato death” should at present

be deemed to fall within the purview of the “penalty prescribed” which “does
not have one of the forms specially provided for” in the Revised Penal Code,
the periods of which “shall be distributed,” applying by analogy the
prescribed rules, in line with Article 77 of the Revised Penal Code. Pursuant
to this principle, the penalty of “reclusion perpetuato death” shall have the
following periods: Death, as the maximum; thirty (30) years and one (1)
day to forty (40) years, as the medium; and twenty (20) years and one (1)
day to thirty (30) years, as the minimum.

As there is no mitigating or aggravating circumstance shown to have

attended the commission of the offense charged against Gatward, the
penalty to be imposed on him shall be within the range of the medium
period. On the other hand, since U Aung Win is favored by one mitigating
circumstance without any aggravating circumstance to be taken against him,
the penalty which may be imposed on him shall be within the range of the
minimum period. (Art. 64(1) & (2), Revised Penal Code)

The accused in these cases may not enjoy the benefit of Act No. 4103, the
Indeterminate Sentence Law, for under Section 2 of the said Act, its
provisions shall not apply to those convicted of offenses punished with life
imprisonment, which has been interpreted by the Supreme Court as similar
to the penalty of reclusion perpetuaas far as the non-application of the
Indeterminate Sentence Law is concerned. (People vs. Simon, G.R. No.
93028, July 29, 1994)[5]

On those considerations, the trial court handed down its verdict on March 3,
1995 finding both accused guilty as charged, thus:

WHEREFORE, in Criminal Case No. 94-6268, accused Nigel Richard Gatward

is found guilty beyond reasonable doubt of transporting, without legal
authority therefor, 5,237.70 grams of heroin, a prohibited drug, in violation
of Section 4 of Republic Act No. 6425, otherwise known as the Dangerous
Drugs Act of 1972, as amended by Republic Act No. 7659; and there being
no aggravating or mitigating circumstance shown to have attended the
commission of the crime, he is sentenced to suffer the penalty of
imprisonment for thirty-five (35) years of reclusion perpetuaand to pay a
fine of Five Million Pesos (P5,000,000.00).

In Criminal Case No. 94-6269, accused U Aung Win is found guilty beyond
reasonable doubt of importing or bringing into the Philippines 5,579.80
grams of heroin, a prohibited drug, without being authorized by law to do so,
contrary to Section 3 of Republic Act No. 6425, the Dangerous Drugs Act of
1972, as amended by Republic Act No. 7659; and in view of the presence of
one (1) mitigating circumstance of voluntary plea of guilty, without any
aggravating circumstance to offset it, he is sentenced to suffer the penalty of
imprisonment for twenty-five (25) years of reclusion perpetua and to pay a
fine of One Million Pesos (P1,000,000.00).

The heroin involved in these cases is declared forfeited in favor of the

government and ordered turned over to the Dangerous Drugs Board for
proper disposal.

With costs de oficio.[6]

It is apropos to mention at this juncture that during the pendency of this

appeal, and while awaiting the filing of appellant’s brief on an extended
period granted to his counsel de parte, the Court received on September 5,
1995 a mimeographed form of a so-called “Urgent Motion to Withdraw
Appeal.” It bears the signature of appellant but without the assistance or
signature of his counsel indicated thereon. No reason whatsoever was given
for the desired withdrawal and considering the ambient circumstances, the
Court resolved on September 27, 1995 to deny the same for lack of merit. [7]

On June 10, 1996, a letter was received from one H.M. Consul M.B. Evans of
the British Embassy, Consular Section, Manila, seeking an explanation for
the aforesaid resolution and with the representation that “a convicted person
who did not, on reflection, wish to continue with an appeal would not need
to prove merit but could simply notify the courts of his wish to withdraw and
that would be the end of the matter.” To be sure, this is not the first time
that members of foreign embassies and consulates feel that they have a
right to intrude into our judicial affairs and processes, to the extent of
imposing their views on our judiciary, seemingly oblivious or arrogantly
disdainful of the fact that our courts are entitled to as much respect as those
in their own countries.

Such faux pas notwithstanding, a reply was sent to Mr. Evans informing him
that, while there is no arrangement whereby a foreign consular officer may
intervene in a judicial proceeding in this Court but out of courtesy as
enjoined in Republic Act No. 6713, the unauthorized pleading of appellant
was made under unacceptable circumstances as explained in said reply; that
it is not mandatory on this Court to dismiss an appeal on mere motion of an
appellant; that the Court does not discuss or transmit notices of judicial
action except to counsel of the parties; and that, should he so desire, he
could coordinate with appellant’s counsel whose address was furnished
therein.[8]

In a resolution dated June 19, 1996, appellant’s counsel was ordered to

show cause why he should not be disciplinarily dealt with or held for
contempt for his failure to file appellant’s brief. On July 24, 1996, said
counsel and the Solicitor General were required to comment on the
aforestated motion of appellant to withdraw his appeal, no brief for him
having yet been filed. Under date of September 6, 1996, the Solicitor
General filed his comment surprisingly to the effect that the People
interposed no objection to the motion to withdraw appeal. Appellant’s
counsel, on the other hand, manifested on November 4, 1996 that he was
willing to file the brief but he could not do so since appellant asked for time
to consult his pastor who would later inform said counsel, but neither that
pastor nor appellant has done so up to the present.

It would then be worthwhile to restate for future referential purposes the

rules in criminal cases on the withdrawal of an appeal pending in the
appellate courts. The basic rule is that, in appeals taken from the Regional
Trial Court to either the Court of Appeals or the Supreme Court, the same
may be withdrawn and allowed to be retracted by the trial court before the
records of the case are forwarded to the appellate court.[9] Once the records
are brought to the appellate court, only the latter may act on the motion for
withdrawal of appeal.[10] In the Supreme Court, the discontinuance of
appeals before the filing of the appellee’s brief is generally permitted. [11]
Where the death penalty is imposed, the review shall proceed
notwithstanding withdrawal of the appeal as the review is automatic and this
the Court can do without the benefit of briefs or arguments filed by the
appellant.[12]

In the case at bar, however, the denial of the motion to withdraw his appeal
by herein appellant is not only justified but is necessary since the trial court
had imposed a penalty based on an erroneous interpretation of the
governing law thereon. Thus, in People vs. Roque, [13] the Court denied the
motion of the accused to withdraw his appeal, to enable it to correct the
wrongful imposition by the trial court of the penalty of “reclusion temporal to
reclusion perpetua” for the crime of simple rape, in clear derogation of the
provisions of Article 335 of the Revised Penal Code and the Indeterminate
Sentence Law. Similarly, in another case,[14] the motion to withdraw his
appeal by the accused, whose guilt for the crime of murder was undeniable
and for which he should suffer the medium period of the imposable penalty
which is reclusion perpetua, was not allowed; otherwise, to permit him to
recall the appeal would enable him to suffer a lesser indeterminate sentence
erroneously decreed by the trial court which imposed the minimum of the
penalty for murder, that is, reclusion temporal in its maximum period.

In the cases at bar, the same legal obstacle constrained the Court to deny
appellant’s motion to withdraw his appeal. The trial court had, by
considering reclusion perpetua as a divisible penalty, imposed an
unauthorized penalty on both accused which would remain uncorrected if the
appeal had been allowed to be withdrawn. In fact, it would stamp a nihil
obstantium on a penalty that in law does not exist and which error, initially
committed by this Court in another case on which the trial court relied, had
already been set aright by this Court.

3. As amended by Republic Act No. 7659, the respective penalties imposable

under Sections 3 and 4 of the Dangerous Drugs Act, in relation to Section 20
thereof, would range from reclusion perpetua to death and a fine of
P500,000.00 to P10,000,000.00 if the quantity of the illegal drug involved,
which is heroin in this case, should be 40 grams or more. In the same
amendatory law, the penalty of reclusion perpetua is now accorded a
“defined duration” ranging from twenty (20) years and one (1) day to forty
(40) years, through the amendment introduced by it to Article 27 of the
Revised Penal Code.

This led the trial court to conclude that said penalty is now divisible in
nature, and that “(c)onsequently, the penalty of “reclusion perpetua to
death” should at present be deemed to fall within the purview of the
“penalty prescribed” which “does not have one of the forms specially
provided for” in the Revised Penal Code, and the periods of which “shall be
distributed” by an analogous application of the rules in Article 77 of the
Code. Pursuant to its hypothesis, the penalty of “reclusion perpetua to death
shall have the following periods: death, as the maximum; thirty (30) years
and one (1) day to forty (40) years, as the medium; and twenty (20) years
and one (1) day to thirty (30) years, as the minimum.”[15]

We cannot altogether blame the lower court for this impass'e since this
Court itself inceptively made an identical misinterpretation concerning the
question on the indivisibility of reclusion perpetua as a penalty. In People vs.
Lucas,[16] the Court was originally of the view that by reason of the
amendment of Article 27 of the Code by Section 21 of Republic Act No.
7569, there was conferred upon said penalty a defined duration of 20 years
and 1 day to 40 years; but that since there was no express intent to convert
said penalty into a divisible one, there having been no corresponding
amendment to Article 76, the provisions of Article 65 could be applied by
analogy. The Court then declared that reclusion perpetua could be divided
into three equal portions, each portion composing a period. In effect,
reclusion perpetua was then to be considered as a divisible penalty.

In a subsequent re-examination of and a resolution in said case on January

9, 1995, occasioned by a motion for clarification thereof, [17] the Court en
banc realized the misconception, reversed its earlier pronouncement, and
has since reiterated its amended ruling in three succeeding appellate
litigations.[18] The Court, this time, held that in spite of the amendment
putting the duration of reclusion perpetua at 20 years and 1 day to 40 years,
it should remain as an indivisible penalty since there was never any intent
on the part of Congress to reclassify it into a divisible penalty. This is evident
from the undisputed fact that neither Article 63 nor Article 76 of the Code
had been correspondingly altered, to wit:

Verily, if reclusion perpetua was reclassified as a divisible penalty, then

Article 63 of the Revised Penal Code would lose its reason and basis for
existence. To illustrate, the first paragraph of Section 20 of the amended
R.A. No. 6425 provides for the penalty of reclusion perpetua to death
whenever the dangerous drugs involved are of any of the quantities stated
therein. If Article 63 of the Code were no longer applicable because reclusion
perpetua is supposed to be a divisible penalty, then there would be no
statutory rules for determining when either reclusion perpetua or death
should be the imposable penalty. In fine, there would be no occasion for
imposing reclusion perpetua as the penalty in drug cases, regardless of the
attendant modifying circumstances.

This problem revolving around the non-applicability of the rules in Article 63

assumes serious proportions since it does not involve only drug cases, as
aforesaid. Under the amendatory sections of R.A. No. 7659, the penalty of
reclusion perpetuato death is also imposed on treason by a Filipino (Section
2), qualified piracy (Section 3), parricide (Section 5), murder (Section 6),
kidnapping and serious illegal detention (Section 8), robbery with homicide
(Section 9), destructive arson (Section 10), rape committed under certain
circumstances (Section 11), and plunder (Section 12).

In the same resolution, the Court adverted to its holding in People vs. Reyes,
[19]
that while the original Article 27 of the Revised Penal Code provided for
the minimum and the maximum ranges of all the penalties therein, from
arresto menor to reclusion temporal but with the exceptions of bond to keep
the peace, there was no parallel specification of either the minimum or the
maximum range of reclusion perpetua. Said article had only provided that a
person sentenced to suffer any of the perpetual penalties shall, as a general
rule, be extended pardon after service thereof for 30 years. Likewise, in
laying down the procedure on successive service of sentence and the
application of the three-fold rule, the duration of perpetual penalties is
computed at 30 years under Article 70 of the Code.

Furthermore, since in the scales of penalties provided in the Code,

specifically those in Articles 25, 70 and 71, reclusion perpetua is the penalty
immediately higher than reclusion temporal, then its minimum range should
by necessary implication start at 20 years and 1 day while the maximum
thereunder could be co-extensive with the rest of the natural life of the
offender. However, Article 70 provides that the maximum period in regard to
service of the sentence shall not exceed 40 years.

Thus, the maximum duration of reclusion perpetua is not and has never
been 30 years which is merely the number of years which the convict must
serve in order to be eligible for pardon or for the application of the three-fold
rule. Under these accepted propositions, the Court ruled in the motion for
clarification in the Lucas case that Republic Act No. 7659 had simply restated
existing jurisprudence when it specified the duration of reclusion perpetua at
20 years and 1 day to 40 years.

The error of the trial court was in imposing the penalties in these cases
based on the original doctrine in Lucas which was not yet final and
executory, hence open to reconsideration and reversal. The same having
been timeously rectified, appellant should necessarily suffer the entire extent
of 40 years of reclusion perpetua, in line with that reconsidered dictum
subsequently handed down by this Court. In passing, it may be worth asking
whether or not appellant subsequently learned of the amendatory resolution
of the Court under which he stood to serve up to 40 years, and that was
what prompted him to move posthaste for the withdrawal of his appeal from
a sentence of 35 years.
4. The case of U Aung Win ostensibly presents a more ticklish legal poser,
but that is not actually so. It will be recalled that this accused was found
guilty and sentenced to suffer the penalty of reclusion perpetua supposedly
in its minimum period, consisting of imprisonment for 25 years, and to pay a
fine of P1,000,000.00. He did not appeal, and it may be contended that what
has been said about the corrected duration of the penalty of reclusion
perpetua which we hold should be imposed on appellant Gatward, since
reclusion perpetua is after all an indivisible penalty, should not apply to this
accused.

Along that theory, it may be asserted that the judgment against accused U
Aung Win has already become final. It may also be argued that since Section
11(a) of Rule 122 provides that an appeal taken by one accused shall not
affect those who did not appeal except insofar as the judgment of the
appellate court is favorable and applicable to the latter, our present
disposition of the correct duration of the penalty imposable on appellant
Gatward should not affect accused U Aung Win since it would not be
favorable to the latter. To use a trite and tired legal phrase, those objections
are more apparent than real.

At bottom, all those postulations assume that the penalties decreed in the
judgment of the trial court are valid, specifically in the sense that the same
actually exist in law and are authorized to be meted out as punishments. In
the case of U Aung Win, and the same holds true with respect to Gatward,
the penalty inflicted by the court a quo was a nullity because it was never
authorized by law as a valid punishment. The penalties which consisted of
aliquot one-third portions of an indivisible penalty are self-contradictory in
terms and unknown in penal law. Without intending to sound sardonic or
facetious, it was akin to imposing the indivisible penalties of public censure,
or perpetual absolute or special disqualification, or death in their minimum
or maximum periods.

This was not a case of a court rendering an erroneous judgment by inflicting

a penalty higher or lower than the one imposable under the law but with
both penalties being legally recognized and authorized as valid punishments.
An erroneous judgment, as thus understood, is a valid judgment. [20] But a
judgment which ordains a penalty which does not exist in the catalogue of
penalties or which is an impossible version of that in the roster of lawful
penalties is necessarily void, since the error goes into the very essence of
the penalty and does not merely arise from the misapplication thereof.
Corollarily, such a judgment can never become final and executory.

Nor can it be said that, despite the failure of the accused to appeal, his case
was reopened in order that a higher penalty may be imposed on him. There
is here no reopening of the case, as in fact the judgment is being affirmed
but with a correction of the very substance of the penalty to make it
conformable to law, pursuant to a duty and power inherent in this Court. The
penalty has not been changed since what was decreed by the trial court and
is now being likewise affirmed by this Court is the same penalty of reclusion
perpetuawhich, unfortunately, was imposed by the lower court in an
elemental form which is non-existent in and not authorized by law. Just as
the penalty has not been reduced in order to be favorable to the accused,
neither has it been increased so as to be prejudicial to him.

Finally, no constitutional or legal right of this accused is violated by the

imposition upon him of the corrected duration, inherent in the essence and
concept, of the penalty. Otherwise, he would be serving a void sentence with
an illegitimate penalty born out of a figurative liaison between judicial
legislation and unequal protection of the law. He would thus be the victim of
an inadvertence which could result in the nullification, not only of the
judgment and the penalty meted therein, but also of the sentence he may
actually have served. Far from violating any right of U Aung Win, therefore,
the remedial and corrective measures interposed by this opinion protect him
against the risk of another trial and review aimed at determining the correct
period of imprisonment.

WHEREFORE, the judgment of the court a quo, specifically with regard to

the penalty imposed on accused-appellant Nigel Richard Gatward in Criminal
Case No. 94-6268 and that of accused U Aung Win in Criminal Case No. 94-
6269, is hereby MODIFIED in the sense that both accused are sentenced to
serve the penalty of reclusion perpetuain its entire duration and full extent.
In all other respects, said judgment is hereby AFFIRMED, but with costs to
be assessed against both accused in all instances of these cases.
SO ORDERED.

Romero, Puno, Mendoza, and Torres, Jr., JJ., concur.

[1]
An Act to Impose the Death Penalty on Certain Heinous Crimes, Amending
for that Purpose the Revised Penal Code, as Amended, Other Special Penal
Laws, and for other Purposes.

[2]
See People vs. Simon, G.R. No. 93028, July 29, 1994, 234 SCRA 555.

[3]
Rollo, 47-50; penned by Presiding Judge Alfredo J. Gustilo, Regional Trial
Court, Branch 116, Pasay City.

[4]
Rollo, 52-53.

[5]
Rollo, 51-52.

[6]
Ibid., 53-54.

[7]
Ibid., 53-54.

[8]
Ibid., 80-81.

[9]
Section 12, in relation to Section 8, Rule 122, Rules of Court.

[10]
Ramos vs. Gonong, L-42010, August 31, 1976, 72 SCRA 559.

[11]
People vs. Mendoza, 93 Phil. 581 (1953).

[12]
People vs. Villanueva, 93 Phil. 927 (1953).
[13]
G.R. No. 53470, June 26, 1981, 105 SCRA 117.

[14]
People vs. Maguddayao, et al., L-43923, September 12, 1984, 132 SCRA
35.

[15]
Original Record, 486-487.

[16]
G.R. Nos. 108172-73, May 25, 1994, 232 SCRA 537.

[17]
See 240 SCRA 66.

[18]
People vs. Baculi, G.R. No. 110591, July 26, 1995, 246 SCRA 756; People
vs. Uycogue, G.R. No. 107495, July 31, 1995, 246 SCRA 769; People vs.
Magallano, January 16, 1997, G.R. No. 114872.

[19]
G.R. Nos. 101127-31, August 7, 1992, 212 SCRA 402.

[20]
De la Cruz vs. Ejercito, etc., et al., L-40895, November 6, 1975, 68 SCRA
1.

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307 Phil. 437

EN BANC

[ G.R. No. 104961, October 07, 1994 ]

CONGRESSMAN FRANCISCO B. ANIAG, JR., PETITIONER, VS.

COMMISSION ON ELECTIONS AND DEPARTMENT OF JUSTICE
SPECIAL TASK FORCE, RESPONDENTS.

DECISION
BELLOSILLO, J.:
PETITIONER assails in this petition (for declaratory relief, certiorari and prohibition)
the following resolutions of the Commission on Elections: Resolution No. 2327
dated 26 December 1991 for being unconstitutional, and Resolution No. 92-0829
dated 6 April 1992 and Resolution No. 92-0999 dated 23 April 1992, for want of
legal and factual bases.
The factual backdrop: In preparation for the synchronized national and local
elections scheduled on 11 May 1992, the Commission on Elections (COMELEC)
issued on 11 December 1991 Resolution No. 2323 otherwise referred to as the "Gun
Ban,” promulgating rules and regulations on bearing, carrying and transporting of
firearms or other deadly weapons, on security personnel or bodyguards, on bearing
arms by members of security agencies or police organizations, and organization or
maintenance of reaction forces during the election period.[1] Subsequently, on 26
December 1991 COMELEC issued Resolution No. 2327 providing for the summary
disqualification of candidates engaged in gunrunning, using and transporting of
firearms, organizing special strike forces, and establishing spot checkpoints.[2]
On 10 January 1992, pursuant to the "Gun Ban," Mr. Serapio P. Taccad, Sergeant-
at-Arms, House of Representatives, wrote petitioner who was then Congressman of
the 1st District of Bulacan requesting the return of the two (2) firearms[3] issued to
him by the House of Representatives. Upon being advised of the request on 13
January 1992 by his staff, petitioner immediately instructed his driver, Ernesto
Arellano, to pick up the firearms from petitioner's house at Valle Verde and return
them to Congress.
Meanwhile, at about five o'clock in the afternoon of the same day, the Philippine
National Police (PNP) headed by Senior Superintendent Danilo Cordero set up a
checkpoint outside the Batasan Complex some twenty (20) meters away from its
entrance. About thirty minutes later, the policemen manning the outpost flagged
down the car driven by Arellano as it approached the checkpoint. They searched the
car and found the firearms neatly packed in their gun cases and placed in a bag in
the trunk of the car. Arellano was then apprehended and detained. He explained
that he was ordered by petitioner to get the firearms from the house and return
them to Sergeant-at Arms Taccad of the House of Representatives.
Thereafter, the police referred Arellano's case to the Office of the City Prosecutor
for inquest. The referral did not include petitioner as among those charged with an
election offense. On 15 January 1992, the City Prosecutor ordered the release of
Arellano after finding the latter's sworn explanation meritorious.[4]
On 28 January 1992, the City Prosecutor invited petitioner to shed light on the
circumstances mentioned in Arellano's sworn explanation. Petitioner not only
appeared at the preliminary investigation to confirm Arellano's statement but also
wrote the City Prosecutor urging him to exonerate Arellano. He explained that
Arellano did not violate the firearms ban as he in fact was complying with it when
apprehended by returning the firearms to Congress; and, that he was petitioner's
driver, not a security officer nor a bodyguard.[5]
On 6 March 1992, the Office of the City Prosecutor issued a resolution which,
among other matters, recommended that the case against Arellano be dismissed
and that the "unofficial" charge against petitioner be also dismissed.[6]
Nevertheless, on 6 April 1992, upon recommendation of its Law Department,
COMELEC issued Resolution No. 92-0829 directing the filing of information against
petitioner and Arellano for violation of Sec. 261, par. (q), of B.P. Blg. 881 otherwise
known as the Omnibus Election Code, in relation to Sec. 32 of R.A. No. 7166;[7]
and petitioner to show cause why he should not be disqualified from running for an
elective position, pursuant to COMELEC Resolution No. 2327, in relation to Secs.
32, 33 and 35 of R.A. 7166, and Sec. 52, par. (c), of B.P. Blg. 881.[8]
On 13 April 1992, petitioner moved for reconsideration and to hold in abeyance the
administrative proceedings as well as the filing of the information in court.[9] On 23
April 1992, the COMELEC denied petitioner's motion for reconsideration.[10] Hence,
this recourse.
Petitioner questions the constitutionality of Resolution No. 2327. He argues that the
rules and regulations of an administrative body must respect the limits defined by
law; that the Omnibus Election Code provides for the disqualification of any
person/candidate from running for or holding a public office, i.e., any person who
has either been declared by competent authority as insane or incompetent or has
been sentenced by final judgment for subversion, insurrection, rebellion or for any
offense for which he has been sentenced to a penalty of more than eighteen
months or for a crime involving moral turpitude; that gunrunning, using or
transporting firearms or similar weapons and other acts mentioned in the resolution
are not within the letter or spirit of the provisions of the Code; that the resolution
did away with the requirement of final conviction before the commission of certain
offenses; that instead, it created a presumption of guilt as a candidate may be
disqualified from office in situations (a) where the criminal charge is still pending,
(b) where there is no pending criminal case, and (c) where the accused has already
been acquitted, all contrary to the requisite quantum of proof for one to be
disqualified from running or holding public office under the Omnibus Election Code,
i.e., proof beyond reasonable doubt. As a result, petitioner concludes, Resolution
No. 2327 violates the fundamental law thus rendering it fatally defective.
But, the issue on the disqualification of petitioner from running in the 11 May 1992
synchronized elections was rendered moot when he lost his bid for a seat in
Congress in the elections that ensued. Consequently, it is now futile to discuss the
implications of the charge against him on his qualification to run for public office.
However, there still remains an important question to be resolved, i.e., whether he
can be validly prosecuted for instructing his driver to return to the Sergeant-at-
Arms of the House of Representatives the two firearms issued to him on the basis
of the evidence gathered from the warrantless search of his car.
Petitioner strongly protests against the manner by which the PNP conducted the
search. According to him, without a warrant and without informing the driver of his
fundamental rights the policemen searched his car. The firearms were not tucked in
the waist nor within the immediate reach of Arellano but were neatly packed in
their gun cases and wrapped in a bag kept in the trunk of the car. Thus, the search
of his car that yielded the evidence for the prosecution was clearly violative of Secs.
2 and 3, par. (2), Art. III, of the Constitution.[11]
Petitioner further maintains that he was neither impleaded as party respondent in
the preliminary investigation before the Office of the City Prosecutor nor included in
the charge sheet. Consequently, making him a respondent in the criminal
information would violate his constitutional right to due process.
Petitioner disputes the charge that he violated Sec. 33 of R.A. 7166, which prohibits
any candidate for public office during the election period from employing or availing
himself or engaging the services of security personnel or bodyguards since,
admittedly, Arellano was not a security officer or bodyguard but a civilian employee
assigned to him as driver by the House of Representatives. Specifically, petitioner
further argues, Arellano was instructed to return to Congress, as he did, the
firearms in compliance with the directive of its Sergeant-at-Arms pursuant to the
"Gun Ban," thus, no law was in fact violated.[12]
On 25 June 1992, we required COMELEC to file its own comment on the
petition[13] upon manifestation of the Solicitor General that it could not take the
position of COMELEC and prayed instead to be excused from filing the required
comment.[14]
COMELEC claims that petitioner is charged with violation of Sec. 261, par. (q), in
relation to Sec. 263, of B.P. Blg. 881 which provides that "the principals,
accomplices and accessories, as defined in the Revised Penal Code, shall be
criminally liable for election offenses." It points out that it was upon petitioner's
instruction that Arellano brought the firearms in question outside petitioner's
residence, submitting that his right to be heard was not violated as he was invited
by the City Prosecutor to explain the circumstances regarding Arellano's possession
of the firearms. Petitioner also filed a sworn written explanation about the incident.
Finally, COMELEC claims that violation of the "Gun Ban" is mala prohibita, hence,
the intention of the offender is immaterial.[15]
Be that as it may, we find no need to delve into the alleged constitutional infirmity
of Resolution No. 2327 since this petition may be resolved without passing upon
this particular issue.[16]
As a rule, a valid search must be authorized by a search warrant duly issued by an
appropriate authority. However, this is not absolute. Aside from a search incident to
a lawful arrest, a warrantless search had been upheld in cases of moving vehicles
and the seizure of evidence in plain view,[17] as well as the search conducted at
police or military checkpoints which we declared are not illegal per se, and stressed
that the warrantless search is not violative of the Constitution for as long as the
vehicle is neither searched nor its occupants subjected to a body search, and the
inspection of the vehicle is merely limited to a visual search.[18]
Petitioner contends that the guns were not tucked in Arellano's waist nor placed
within his reach, and that they were neatly packed in gun cases and placed inside a
bag at the back of the car. Significantly, COMELEC did not rebut this claim. The
records do not show that the manner by which the package was bundled led the
PNP to suspect that it contained firearms. There was no mention either of any
report regarding any nervous, suspicious or unnatural reaction from Arellano when
the car was stopped and searched. Given these circumstances and relying on its
visual observation, the PNP could not thoroughly search the car lawfully as well as
the package without violating the constitutional injunction.
An extensive search without warrant could only be resorted to if the officers
conducting the search had reasonable or probable cause to believe before the
search that either the motorist was a law offender or that they would find the
instrumentality or evidence pertaining to the commission of a crime in the vehicle
to be searched.[19] The existence of probable cause justifying the warrantless
search is determined by the facts of each case.[20] Thus, we upheld the validity of
the warrantless search in situations where the smell of marijuana emanated from a
plastic bag owned by the accused, or where the accused was acting suspiciously,
and attempted to flee.[21]
We also recognize the stop-and-search without warrant conducted by police officers
on the basis of prior confidential information which were reasonably corroborated
by other attendant matters, e.g., where a confidential report that a sizeable volume
of marijuana would be transported along the route where the search was conducted
and appellants were caught in flagrante delicto transporting drugs at the time of
their arrest;[22] where apart from the intelligence information, there were reports
by an undercover "deep penetration" agent that appellants were bringing prohibited
drugs into the country;[23] where the information that a Caucasian coming from
Sagada bringing prohibited drugs was strengthened by the conspicuous bulge in
accused's waistline and his suspicious failure to produce his passport and other
identification papers;[24] where the physical appearance of the accused fitted the
description given in the confidential information about a woman transporting
marijuana;[25] where the accused carrying a bulging black leather bag were
suspiciously quiet and nervous when queried about its contents;[26] or where the
identity of the drug courier was already established by police authorities who
received confidential information about the probable arrival of accused on board
one of the vessels arriving in Dumaguete City.[27]
In the case at bench, we find that the checkpoint was set up twenty (20) meters
from the entrance to the Batasan Complex to enforce Resolution No. 2327. There
was no evidence to show that the policemen were impelled to do so because of a
confidential report leading them to reasonably believe that certain motorists
matching the description furnished by their informant were engaged in gunrunning,
transporting firearms or in organizing special strike forces. Nor, as adverted to
earlier, was there any indication from the package or behavior of Arellano that
could have triggered the suspicion of the policemen. Absent such justifying
circumstances specifically pointing to the culpability of petitioner and Arellano, the
search could not be valid. The action then of the policemen unreasonably intruded
into petitioner's privacy and the security of his property, in violation of Sec. 2, Art.
III, of the Constitution. Consequently, the firearms obtained in violation of
petitioner's right against warrantless search cannot be admitted for any purpose in
any proceeding.
It may be argued that the seeming acquiescence of Arellano to the search
constitutes an implied waiver of petitioner's right to question the reasonableness of
the search of the vehicle and the seizure of the firearms.
While Resolution No. 2327 authorized the setting up of checkpoints, it however
stressed that "guidelines shall be made to ensure that no infringement of civil and
political rights results from the implementation of this authority," and that "the
places and manner of setting up of checkpoints shall be determined in consultation
with the Committee on Firearms Ban and Security Personnel created under Sec. 5,
Resolution No. 2323."[28] The facts show that PNP installed the checkpoint at
about five o'clock in the afternoon of 13 January 1992. The search was made soon
thereafter, or thirty minutes later. It was not shown that news of impending
checkpoints without necessarily giving their locations, and the reason for the same
have been announced in the media to forewarn the citizens. Nor did the informal
checkpoint that afternoon carry signs informing the public of the purpose of its
operation. As a result, motorists passing that place did not have any inkling
whatsoever about the reason behind the instant exercise. With the authorities in
control to stop and search passing vehicles, the motorists did not have any choice
but to submit to the PNP's scrutiny. Otherwise, any attempt to turnabout albeit
innocent would raise suspicion and provide probable cause for the police to arrest
the motorist and to conduct an extensive search of his vehicle.
In the case of petitioner, only his driver was at the car at that time it was stopped
for inspection. As conceded by COMELEC, driver Arellano did not know the purpose
of the checkpoint. In the face of fourteen (14) armed policemen conducting the
operation,[29] driver Arellano being alone and a mere employee of petitioner could
not have marshalled the strength and the courage to protest against the extensive
search conducted in the vehicle. In such scenario, the "implied acquiescence," if
there was any, could not be more than a mere passive conformity on Arellano's part
to the search, and "consent" given under intimidating or coercive circumstances is
no consent within the purview of the constitutional guaranty.
Moreover, the manner by which COMELEC proceeded against petitioner runs
counter to the due process clause of the Constitution. The facts show that petitioner
was not among those charged by the PNP with violation of the Omnibus Election
Code. Nor was he subjected by the City Prosecutor to a preliminary investigation for
such offense. The non-disclosure by the City Prosecutor to the petitioner that he
was a respondent in the preliminary investigation is violative of due process which
requires that the procedure established by law should be obeyed.[30]
COMELEC argues that petitioner was given the chance to be heard because he was
invited to enlighten the City Prosecutor regarding the circumstances leading to the
arrest of his driver, and that petitioner in fact submitted a sworn letter of
explanation regarding the incident. This does not satisfy the requirement of due
process the essence of which is the reasonable opportunity to be heard and to
submit any evidence one may have in support of his defense.[31] Due process
guarantees the observance of both substantive and procedural rights, whatever the
source of such rights, be it the Constitution itself or only a statute or a rule of court.
[32] In Go v. Court of Appeals,[33] we held that -

While the right to preliminary investigation is statutory rather than

constitutional in its fundament, since it has in fact been established
by statute, it is a component part of due process in criminal justice.
The right to have a preliminary investigation conducted before
being bound over to trial for a criminal offense and hence formally
at risk of incarceration or some other penalty is not a mere formal
or technical right; it is a substantive right x x x x [T]he right to an
opportunity to avoid a process painful to anyone save, perhaps, to
hardened criminals is a valuable right. To deny petitioner's claim to
a preliminary investigation would be to deprive him of the full
measure of his right to due process.

Apparently, petitioner was merely invited during the preliminary investigation of

Arellano to corroborate the latter's explanation. Petitioner then was made to believe
that he was not a party respondent in the case, so that his written explanation on
the incident was only intended to exculpate Arellano, not petitioner himself. Hence,
it cannot be seriously contended that petitioner was fully given the opportunity to
meet the accusation against him as he was not apprised that he was himself a
respondent when he appeared before the City Prosecutor.
Finally, it must be pointed out too that petitioner's filing of a motion for
reconsideration with COMELEC cannot be considered as a waiver of his claim to a
separate preliminary investigation for himself. The motion itself expresses
petitioner's vigorous insistence on his right. Petitioner's protestation started as soon
as he learned of his inclusion in the charge, and did not ease up even after
COMELEC's denial of his motion for reconsideration. This is understandably so since
the prohibition against carrying firearms bears the penalty of imprisonment of not
less than one (1) year nor more than six (6) years without probation and with
disqualification from holding public office, and deprivation of the right to suffrage.
Against such strong stance, petitioner clearly did not waive his right to a
preliminary investigation.
WHEREFORE, the instant petition is GRANTED. The warrantless search conducted
by the Philippine National Police on 13 January 1992 is declared illegal and the
firearms seized during the warrantless search cannot be used as evidence in any
proceeding against petitioner. Consequently, COMELEC Resolution No. 92-0829
dated 6 April 1992 being violative of the Constitution is SET ASIDE.
The temporary restraining order we issued on 5 May 1992 is made permanent.
SO ORDERED.

Narvasa, C.J., Romero, Quiason, Puno, Kapunan, and Mendoza, JJ., concur.
Cruz, and Vitug, JJ., concurring opinion.
Regalado, and Davide Jr. JJ., concurring and dissenting opinion.
Melo, J., join the concurring and dissenting opinion of J. Davide, Jr.
Feliciano, Padilla, and Bidin, JJ., on leave.

[1] Rollo, p. 56.

[2] Id., p. 35.
[3] One (1) 9 mm SN U164076 P-226 and one (1) Beretta 9 mm Para F-39721
SMG; Rollo, p. 79.
[4] Rollo, pp. 74-75.
[5] Id., pp. 77-78.
[6] Id., pp. 91-94.
[7] Sec. 261. Prohibited Acts. - The following shall be guilty of an election offense:
x x x (q) Carrying firearms outside residence or place of business. - Any person
who, although possessing a permit to carry firearms, carries any firearms outside
his residence or place of business during the election period, unless authorized in
writing by the Commission: Provided, That a motor vehicle, water or aircraft shall
not be considered a residence or place of business or extension hereof x x x x (B.P.
Blg. 881).
Sec. 32. Who May Bear Firearms. - During the election period, no person
shall bear, carry or transport firearms or other deadly weapons in public places,
including any building, street, park, private vehicle or public conveyance, even if
licensed to possess or carry the same, unless authorized in writing by the
Commission. The issuance of firearm licenses shall be suspended during the
election period x x x x (R.A. No. 7166).
Sec. 33. Security Personnel and Bodyguards. - During the election period, no
candidate for public office, including incumbent public officers seeking election to
any public office, shall employ, avail himself of or engage the services of security
personnel or bodyguards, whether or not such bodyguards are regular members or
officers of the Philippine National Police, the Armed Forces of the Philippines or
other law enforcement agency of the Government x x x x (ibid.).
Sec. 35. Rules and Regulations. - The Commission shall issue rules and
regulations to implement this Act. Said rules shall be published in at least two (2)
national newspapers of general circulation (ibid.).
Sec. 52. Powers and functions of the Commission on Elections. - In addition
to the powers and functions conferred upon it by the Constitution, the Commission
shall have exclusive charge of the enforcement and administration of all laws
relative to the conduct of elections for the purpose of ensuring free, orderly and
honest elections, and shall x x x x (c) Promulgate rules and regulations
implementing the provision of this Code or other laws which the Commission is
required to enforce and administer, and require the payment of legal fees and
collect the same in payment of any business done in the Commission, at rates that
it may provide and fix in its rules and regulations x x x x (B.P. Blg. 881).
[8] Rollo, pp. 38-39.
[9] Id., p. 42.
[10] Id., p. 40.
[11] Art. 111, 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, par. (2). Any evidence obtained in violation of this or the preceding
section shall be inadmissible for any purpose in any proceeding.
[12] Id., pp. 18-30.
[13] Id., p. 110.
[14] Id., p. 128.
[15] Id., pp. 121-125.
[16] See Alger Electric, Inc. v. Court of Appeals, L-34298, 28 February 1985, 135
SCRA 37, 45; Arrastre Security Association-TUPAS v. Ople, L-45344, 20 February
1984, 127 SCRA 580, 595.
[17] People v. Bagista, G.R. No. 86218, 18 September 1992, 214 SCRA 63, 68-69.
[18] Valmonte v. de Villa, G.R. No. 83988, 24 May 1990, 185 SCRA 665, 669, see
also concurring opinion of Justice Gutierrez, Jr., pp. 672-673, and dissenting
opinions of Justice Cruz, pp. 173-174, and Justice Sarmiento, pp. 174-175.
[19] Id., p. 670; People v. Bagista, supra.
[20] See Valmonte v. De Villa, G.R. No. 83988, 29 September 1989, 178 SCRA
211, 216.
[21] People v. Malmstedt, G.R. No. 91107, 19 June 1991, 198 SCRA 401, 408,
citing People v. Claudio, G.R. No. 72564, 15 April 1988, 160 SCRA 646, People v.
Tangliben, G.R. No. 63630, 6 April 1990, 184 SCRA 220, and Posadas v. Court of
Appeals, G.R. No. 83139, 2 August 1990, 188 SCRA 288, see also dissenting
opinion of Justice Cruz, pp. 410-412, and concurring and dissenting opinion of
Justice Narvasa, now Chief Justice, pp. 412-424.
[22] People v. Maspil, Jr., G.R. No. 85177, 20 August 1990, 188 SCRA 751.
[23] People v. Lo Ho Wing, G.R. No. 88017, 21 January 1991, 193 SCRA 122.
[24] People v. Malmstedt, ibid.
[25] People v. Bagista, supra, p. 10.
[26] People v. Exala, G.R. No. 76005, 23 April 1993, 221 SCRA 494, see also
dissenting opinion of Justice Cruz, pp. 502-503.
[27] People v. Saycon, G.R. No. 110995, 5 September 1994.
[28] Rollo, p. 36
[29] Rollo, p. 69.
[30] United States v. Ocampo, 18 Phil. 1, 41 (1910).
[31] See Mutuc v. Court of Appeals, No. L-48108, 26 September 1990, 190 SCRA
43, 49.
[32] See Tupas v. Court of Appeals, G.R. No. 89571, 6 February 1991; 193 SCRA
597.
[33] G.R. No. 101837, 11 February 1992, 206 SCRA 138, 153, underscoring ours.

CONCURRING OPINION
CRUZ, J.:
I concur, and reiterate my objections to checkpoints in general as originally
expressed in my dissent in the case of Valmonte v. De Villa, 178 SCRA 217, where I
said:

The sweeping statements in the majority opinion are as dangerous

as the checkpoints it would sustain and fraught with serious threats
to individual liberty. The bland declaration that individual rights
must yield to the demands of national security ignores the fact that
the Bill of Rights was intended precisely to limit the authority of the
State even if asserted on the ground of national security. What is
worse is that the searches and seizures are peremptorily
pronounced to be reasonable even without proof of probable cause
and much less the required warrant. The improbable excuse is that
they are aimed at "establishing an effective territorial defense,
maintaining peace and order, and providing an atmosphere
conducive to the social, economic and political development of the
National Capital Region." For these purposes, every individual may
be stopped and searched at random and at any time simply
because he excites the suspicion, caprice, hostility or malice of the
officers manning the checkpoints, on pain of arrest or worse, even
being shot to death, if he resists.

***
 Unless we are vigilant of our rights, we may find ourselves back to
the dark era of the truncheon and the barbed wire, with the Court
itself a captive of its own complaisance and sitting at the death-bed
of liberty.

I hope the colleagues I have behind on my retirement will reconsider the stand of
the Court on checkpoints and finally dismantle them altogether as an affront to
individual liberty.

CONCURRING AND DISSENTING OPINION

DAVIDE, JR., J.:
I regret that I can concur only in the result, viz., the granting of the petition.
Considering the specific issues raised by the petitioner which, as stated in the
exordium of the majority opinion, are whether (a) COMELEC Resolution No. 2327,
dated 26 December 1991, is unconstitutional, and (b) COMELEC Resolutions No.
92-0829, dated 6 April 1992, and No. 92-0999, dated 23 April 1992, have legal and
factual bases, I am unable to agree with the specific disposition declaring (a) illegal
the warrantless search conducted by the Philippine National Police (PNP) on 13
January 1992, (b) inadmissible in evidence in any proceeding against the petitioner
the firearms seized during such warrantless search, and (c) unconstitutional
COMELEC Resolution No. 92-0829.
1. Having declined to rule on the constitutionality of Resolution No. 2327 because
"this petition may be resolved without passing upon this particular issue" (first
paragraph, page 10, Ponencia), this Court may no longer inquire into the
constitutionality of the spot checkpoints authorized to be established thereunder.
And whether the warrantless search conducted by the PNP at the checkpoint was
valid, it being assumed that it would have been, provided there existed a probable
cause therefor, is a question of fact whose presentation in this case is either
procedurally premature, or one which this Court cannot, with definiteness, resolve
considering the obvious paucity of the facts before it. The most the majority opinion
can state is that "[t]here was no evidence to show that the police were impelled to
do so because of a confidential report leading them to reasonably believe that
certain motorists matching the description furnished by their informant were
engaged in gunrunning, transporting firearms or in organizing special strike forces.
Nor, as adverted to earlier, was there any indication from the package or behavior
of Arellano that could have triggered the suspicion of the policemen." Nothing more
could be expected at this stage since the records of the proceedings conducted by
the Office of the City Prosecutor and the COMELEC are not before this Court. A
declaration of invalidity of the warrantless search and of the inadmissibility in
evidence of the firearms seized would thus be premature.
It may additionally be relevant to state that the search was not in connection with
the crime of illegal possession of firearms, which would have been factually and
legally baseless since the firearms involved were licensed and were duly issued to
the petitioner by the House of Representatives, but for the violation of the gun ban
which was validly decreed by the COMELEC pursuant to its constitutional power to
enforce and administer all laws and regulations relative to the conduct of elections,
plebiscite, initiative, referendum, and recall (Section 2(1), Article IX-C, 1987
Constitution), its statutory authority to have exclusive charge of the enforcement
and administration of all laws relative to the conduct of elections for the purpose of
ensuring free, orderly, and honest elections (Section 52, Omnibus Election Code),
and its statutory authority to promulgate rules and regulations implementing the
provisions of the Omnibus Election Code or other laws which the COMELEC is
required to enforce and administer (Section 52(c), Id.; Section 35, R.A. No. 7166),
in relation to paragraph (q), Section 261 of the Omnibus Election Code which
prohibits the carrying of firearms outside the residence or place of business during
the election period unless authorized in writing by the COMELEC, and Section 32 of
R.A. No. 7166 which prohibits any person from bearing, carrying, or transporting
firearms or other deadly weapons in public places, including any building, street,
park, private vehicle, or public conveyance, even if such person is licensed to
possess or carry the same during the election period, unless authorized in writing
by the COMELEC.
In this case, the petitioner himself admits that on 10 January 1992 he was
requested by the Sergeant-at-Arms of the House of Representatives to return the
two firearms issued to him, and that on 13 January 1992, he instructed his driver,
Ernesto Arellano, to pick up the firearms from his (petitioner's) house at Valle Verde
and to return them to the House of Representatives. That day was already within
the election period, which commenced the day earlier pursuant to COMELEC
Resolution No. 2314 (In The Matter of Fixing The Schedule of Activities in
Connection With the Elections of National and Local Officials on May 11, 1992),
promulgated on 20 November 1991. Considering then that the offense for which he
was to be charged was for the violation of paragraph (q), Section 261 of the
Omnibus Election Code, in relation to Section 32 of R.A. No. 7166, which, in view of
his aforesaid admissions, renders unnecessary the offer in evidence of the seized
firearms, I fail to grasp the rationale of a ruling on the admissibility in evidence of
the firearms.
2. COMELEC Resolution No. 92-0829, dated 6 April 1992, should not be set aside on
the ground of unconstitutionality. It simply directed the filing of an information
against the petitioner and Arellano for the violation of paragraph (q), Section 261 of
the Omnibus Election Code, in relation to Section 32 of R.A. No. 7166, and directed
the petitioner to show cause why he should not be disqualified from running for an
elective position, pursuant to COMELEC Resolution No. 2327, in relation to Sections
32, 33, and 35 of R.A. No. 7166 and paragraph (c), Section 52 of the Omnibus
Election Code. Insofar as Arellano is concerned, he is not a petitioner in this case.
Moreover, as to him, the resolution was nothing more than a disapproval of the
recommendation of the Office of the City Prosecutor to dismiss the complaint
against him. As against the petitioner, there was no denial of due process because
the petitioner was later heard on his motion for reconsideration. Moreover, the right
of an accused to a preliminary investigation is not a creation of the Constitution; its
origin is statutory (Kilusang Bayan sa Paglilingkod ng mga Magtitinda ng Bagong
Pamilihang Bayan ng Muntinglupa, Inc. vs. Dominguez, 205 SCRA 92 [1992]).
The fatal flaw of Resolution No. 92-0829 lies in its directive to file the information
against the petitioner despite the fact that he was never formally charged before
the Office of the City Prosecutor. There was only an "'unofficial' charge imputed
against" him. The COMELEC then acted with grave abuse of discretion amounting to
want or excess of jurisdiction.
I vote then to grant the petition, but solely on the ground that the COMELEC
acted with grave abuse of discretion in directing the filing of an information
against the petitioner for the violation of paragraph (q), Section 261 of the
Omnibus Election Code, in relation to Section 32 of R.A. No. 7166.

CONCURRING AND DISSENTING OPINION

REGALADO, J.:
I join Mr. Justice Davide, Jr. in his opinion wherein he concurs with the majority
ruling that with respect to petitioner Aniag, Resolution No. 92-0829 of respondent
commission should be set aside, not because of an unconstitutional warrantless
search but by reason of the fact that he was not actually charged as a respondent
in the preliminary investigation of the case.
With regard to petitioner's driver, Ernesto Arellano, although he was not impleaded
as a co-petitioner in the present recourse, the nullification of said Resolution No.
92-0829 necessarily applies to him and redounds to his benefit. To the extent,
therefore, that the majority opinion thereby reinstates the resolution of the Office of
the City Prosecutor dismissing the charge against Arellano, I concur in that result.
However, even as a simple matter of consistency but more in point of law, I dissent
from the rationale submitted therefor, that is, that Arellano was the victim of an
unlawful search without a warrant. The pertinent facts stated by the majority
readily yield the conclusion that there was consent on the part of Arellano to the
search of the car then under his control, particularly of its baggage compartment
where the firearms were discovered. As held in People vs. Excela, et al.,[1] consent
to a search may be given expressly or impliedly, and as early as People vs.
Malasugui,[2] the settled rule is that a search may be validly conducted without a
warrant if the person searched consented thereto.
I would prefer to sustain the exoneration of Ernesto Arellano on the justifying
circumstance that he was acting in obedience to what he innocently believed to be
a lawful order of a superior, that is, the instructions of his employer, petitioner
Aniag, who was himself acting upon and in compliance with Resolution No. 2323 of
respondent commission which was implemented by the Sergeant-at-Arms of the
House of Representatives.
The said justifying circumstance provided in paragraph 6, Article 11 of the Revised
Penal Code can be given suppletory effect to special laws like B.P. Blg. 881 and R.A.
No. 7166 by force of Article 10 of the same Code. There is no prohibition therefor in
the cited provisions of B.P. Blg. 881 in relation to R.A. No. 7166, nor is there any
legal impossibility for such suppletory application whether by express provision or
by necessary implication. And even if the order of petitioner Aniag may be
considered as illegal, Arellano acted thereon in good faith[3] and under a mistake of
fact as to its legality, hence his exculpation is ineludibly dictated. Ignorantia facti
excusat.
It being evident from the very records and the factual findings adopted in the
majority opinion that no error was committed by the Office of the City Prosecutor in
dismissing the charge against Ernesto Arellano for lack of sufficient grounds to
engender a well founded belief that a crime had been committed and that he was
probably guilty thereof,[4] respondent commission acted with grave abuse of
discretion in arriving at a contrary conclusion and directing his prosecution in its
Resolution No. 92-0829.

[1] G.R. No. 76005 April 23, 1993, 221 SCRA 494.
[2] 63 Phil. 221 (1936).
[3] People vs. Beronilla, et al., 96 Phil. 566 (1955).
[4] Sec. 1, Rule 112, 1985 Rules of Criminal Procedure, as amended.

CONCURRING OPINION
VITUG, J.:
The ultimate hypothesis of sound governance is not might but the willingness of the
governed to accept and subordinate themselves to authority.
When our people gave their consent to the fundamental law of the land, they did
not renounce but, to the contrary, reserved for themselves certain rights that they
held sacred and inviolable.
One such right is the privilege to be so secured "in their persons, houses, papers,
and effects against unreasonable searches and seizures of whatever nature and for
any purpose." Their sole conceded proviso to this rule is when a search warrant or a
warrant of arrest is lawfully issued. There are, to be sure, known exceptions,
predicated on necessity and justified by good reasons, when warrantless searches
and seizures are allowed. It is in this context that I appreciate the ratio decidendi of
the Court in Valmonte vs. De Villa (178 SCRA 211). In giving its imprimatur to the
installation of checkpoints, the Court clearly has based its decision on the existence
at the time of what has been so described as an "abnormal" situation that then
prevailed. Evidently, the Court did not have the intention to have its ruling continue
to apply to less aberrant circumstances than previously obtaining.
The question has been asked: Between the security of the State and its due
preservation, on the one hand, and the constitutionally-guaranteed right of an
individual, on the other hand, which should be held to prevail? There is no choice to
my mind not for any other reason than because there is, in the first place, utterly
no need to make a choice. The two are not incompatible; neither are they
necessarily opposed to each other. Both can be preserved; indeed, the vitality of
one is the strength of the other.
There should be ways to curb the ills of society so severe as they might seem. A
disregard of constitutional mandates or an abuse on the citizenry, I am most
certain, is not the answer. It might pay to listen to the words of Mr. Justice Isagani
A. Cruz when he said, "(u)nless we are vigilant of our rights, we may find ourselves
back to the dark era of the truncheon and the barbed wire, with the Court itself a
captive of its own complaisance and sitting at the death-bed of liberty."
It is a welcome note that in the subsequent case of Bagalihog vs. Fernandez (198
SCRA 614), the Court has expressed:
 "This guaranty is one of the greatest of individual liberties and was
already recognized even during the days of the absolute
monarchies, when the king could do no wrong. On this right,
Cooley wrote: "Awe surrounded and majesty clothed the King, but
the humblest subject might shut the door of his cottage against
him and defend from intrusion that privacy which was as sacred as
the kingly prerogatives.

"The provision protects not only those who appear to be innocent

but also whose who appear to be guilty but are nevertheless to be
presumed innocent until the contrary is proved. The mere fact that
in the private respondent's view the crime involved is ‘heinous’ and
the victim was ‘a man of consequence’ did not authorize disregard
of the constitutional guaranty. Neither did 'superior orders' condone
the omission for they could not in any case be superior to the
Constitution."

While it gives me great comfort to concur with my esteemed colleague, Mr. Justice
Josue N. Bellosillo, in his ponencia, I would express, nonetheless, the humble view
that even on the above constitutional aspect, the petition could rightly be granted.

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287 Phil. 601

FIRST DIVISION

[ G.R. No. 93516, August 12, 1992 ]

THE PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS.

BASILIO DAMASO @ BERNARDO/BERNIE MENDOZA @ KA DADO,
 ACCUSED-APPELLANT.

DECISION

MEDIALDEA, J.:
The accused-appellant, Basilio Damaso, was originally charged in an information
filed before the Regional Trial Court of Dagupan City with violation of Presidential
Decree No. 1866 in furtherance of, or incident to, or in connection with the crime of
subversion, together with Luzviminda Morados y Galang @ Ka Mel, Teresita Calosa
y Macabangon @ Ka Tessie, Ricardo Calosa y Perez @ Ka Ric, Marites Calosa y
Evangelista @ Ka Tess, Eric Tanciangco y Capira @ Ka Ric and Luz Tanciangco y
Pencial @ Ka Luz (Records, p. 3). Such information was later amended to exclude
all the above-enumerated persons except the accused-appellant from the criminal
charge. The amended information reads:

"That on or about the 19th day of June, 1988, in the City of

Dagupan, Philippines, and within the territorial jurisdiction of this
Honorable Court, the above-named accused, Basilio DAMASO @
Bernardo/Bernie Mendoza @ KA DADO, did then and there, wilfully,
unlawfully and criminally, have in his possession, custody and
control one (1) M14 Rifle bearing Serial No. 1249935 with
magazine and Fifty-Seven (57) live ammunition, in furtherance of,
or incident to, or in connection with the crime of subversion, filed
against said accused in the above-entitled case for Violation of
Republic Act 1700, as amended by Executive order No. 276.

"Contrary to Third Paragraph of Sec. 1, P.D. 1866." (Records, p.

20)

Upon arraignment, the accused-appellant pleaded not guilty to the crime charged
(Records, p. 37). Trial on the merits ensued. The prosecution rested its case and
offered its exhibits for admission. The counsel for accused-appellant interposed his
objections to the admissibility of the prosecution's evidence on grounds of its being
hearsay, immaterial or irrelevant and illegal for lack of a search warrant. On these
bases, he, thereafter, manifested that he was not presenting any evidence for the
accused (TSN, December 28, 1989, p. 139). On January 17, 1990, the trial court
rendered its decision, the dispositive portion of which states:

"WHEREFORE, the Court finds accused Basilico Damaso alias

Bernardo/Bernie Mendoza alias Ka Dado guilty beyond reasonable
doubt of Violation of Presidential Decree Number 1866, and
considering that the Violation is in furtherance of, or incident to, or
in connection with the crime of subversion, pursuant to Section 1,
Paragraph 3 of Presidential Decree Number 1866 hereby sentences
the accused to suffer the penalty of Reclusion Perpetua and to pay
the costs of the proceedings.

"The M14 Rifle bearing Serial Number 1249935 and live

ammunition and all the articles and/or items seized on June 19,
1988 in connection with this case and marked and submitted in
court as evidence are ordered confiscated and forfeited in favor of
the government, the same to be turned over to the Philippine
Constabulary Command at Lingayen, Pangasinan.
 "SO ORDERED." (Rollo, p. 31)

Thus, this present recourse with the following assignment of errors:

A. THE TRIAL COURT ERRED IN FINDING ACCUSED APPELLANT

GUILTY BEYOND REASONABLE DOUBT OF THE CRIME OF ILLEGAL
POSSESSION OF FIREARMS AND AMMUNITIONS IN FURTHERANCE
OF, OR INCIDENT TO, OR IN CONNECTION WITH THE CRIME OF
SUBVERSION DESPITE THE WOEFULLY INADEQUATE EVIDENCE
PRESENTED BY THE PROSECUTION.

B. THE COURT ERRED IN CONVICTING THE ACCUSED WHEN THE

QUALIFYING CIRCUMSTANCES OF SUBVERSION WAS NOT PROVEN
BY THE PROSECUTION.

C. THE LOWER COURT ERRED IN CONSIDERING AS EVIDENCE THE

FIREARMS DOCUMENTS AND ITEMS LISTED IN EXHIBIT E AFTER
THEY WERE DECLARED INADMISSIBLE WITH FINALITY BY
ANOTHER BRANCH OF THE SAME COURT AND THE SAID EVIDENCE
ARE THE FRUITS OF AN ILLEGAL SEARCH.

D. THE TRIAL COURT ERRED IN DENYING THE MOTIONS TO

QUASH FILED BY ACCUSED-APPELLANT BECAUSE THE SEPARATE
CHARGE FOR SUBVERSION AGAINST HIM ABSORBED THE CHARGE
FOR ILLEGAL POSSESSION OF FIREARMS IN FURTHERANCE OR OF
INCIDENT TO, OR IN CONNECTION WITH THE CRIME OF
SUBVERSION." (pp. 55-66, Rollo)

The antecedent facts are set forth by the Solicitor General in his Brief, as follows:

"On June 18, 1988, Lt. Candido Quijardo, a Philippine Constabulary

officer connected with the 152nd PC Company at Lingayen,
Pangasinan, and some companions were sent to verify the
presence of CPP/NPA members in Barangay Catacdang, Arellano-
Bani, Dagupan City. In said place, the group apprehended Gregorio
Flameniano, Berlina Aritumba, Revelina Gamboa and Deogracias
Mayaoa. When interrogated, the persons apprehended revealed
that there was an underground safehouse at Gracia Village in
Urdaneta, Pangasinan. After coordinating with  the Station
Commander of Urdaneta, the group proceeded to the house in
Gracia Village. They found subversive documents, a radio, a 1 x 7
caliber .45 firearm and other items (pp. 4, 6-7, tsn, october 23,
1989).

"After the raid, the group proceeded to Bonuan, Dagupan City, and
put under surveillance the rented apartment of Rosemarie
Aritumba, sister of Berlina Aritumba whom they earlier arrested.
They interviewed Luzviminda Morados, a visitor of Rosemarie
Aritumba. She stated that she worked with Bernie Mendoza, herein
appellant. She guided the group to the house rented by appellant.
When they reached the house, the group found that it had already
been vacated by the occupants. Since Morados was hesitant to give
the new address of Bernie Mendoza, the group looked for the
Barangay Captain of the place and requested him to point out the
new house rented by appellant. The group again required Morados
 to go with them. When they reached the house, the group saw Luz
Tanciangco outside. They told her that they already knew that she
was a member of the NPA in the area. At first, she denied it, but
when she saw Morados she requested the group to go inside the
house. Upon entering the house, the group, as well as the
Barangay Captain, saw radio sets, pamphlets entitled ‘Ang Bayan',
xerox copiers and a computer machine. They also found persons
who were companions of Luz Tanciangco (namely, Teresita Calosa,
Ricardo Calosa, Marites Calosa, Eric Tanciangco and Luzviminda
Morados). The group requested the persons in the house to allow
them to look around. When Luz Tanciangco opened one of the
rooms, they saw books used for subversive orientation, one M-14
rifle, bullets and ammunitions, Kenwood radio, artificial beard,
maps of the Philippines, Zambales, Mindoro an(d) Laguna and
other items. They confiscated the articles and brought them to
their headquarters for final inventory. They likewise brought the
persons found in the house to the headquarters for investigation.
Said persons revealed that appellant was the lessee of the house
and owned the items confiscted therefrom (pp. 8-12, tsn, ibid; pp.
2-4, 6, 8-10, 31, tsn, October 31, 1989)." (p. 5, Brief of Plaintiff-
Appellee, p. 91, Rollo)

While We encourage and support law enforcement agencies in their drive against
lawless elements in our society, We must, however, stress that the latter's efforts
to this end must be done within the parameters of the law. In the case at bar, not
only did We find that there are serious flaws in the method used by the law officers
in obtaining evidence against the accused-appellant but also that the evidence as
presented against him is weak to justify conviction.
We reverse.
The records of this case show that the accused-appellant was singled out as the
sole violator of P.D. No. 1866, in furtherance of, or incident to, or in connection
with the crime of subversion. Yet, there is no substantial and credible evidence to
establish the fact that the appellant is allegedly the same person as the lessee of
the house where the M-14 rifle and other subversive items were found or the owner
of the said items. The prosecution presented two witnesses who attested to this
fact, thus:

"Lieutenant Candito Quijardo

Fiscal

"Q : How about this Bernie Mendoza, who was the one renting the
house?

"A :  He was not around at that time, but according to Luz

(Tanciangco) who mentioned the name Bernie Mendoza (as) the
one who was renting the house and at the same time claiming that
it was Bernie Mendoza who owns the said items." (TSN of October
31, 1989, p.40)

"x x x.

"Q : I am showing you another picture which we request to be

 marked as Exhibit ‘K-2,’ tell us if it has any connection to the
house?

"A :  The same house, sir.

"Q : Now, this person who according to you allegedly occupied the
house at Bonuan Gueset, by the name of Bernie Mendoza, in your
capacity as a Military officer, did you find out the identity?

"A : I am not the proper (person) to tell the real identity of Bernie
de Guzman.

"Q : Can you tell the Honorable Court the proper person who could
tell the true identity of Bernie Mendoza?

"A : The Intelligence of the Pangasinan PC Command.

"Q : Can you name these officers?

"A : Captain Roberto Rosales and his assistant, First Lt. Federico
Castro. (ibid, pp. 54-55)

"M/Sgt. Artemio Gomez

"Q : That underground house, do you know who was the principal
occupant of that house?

"x x x.

"A : During our conversation with the occupants, they revealed that
a certain Ka Bernie is the one occupying the house, Bernie
Mendoza alias Basilio Damaso.

"x x x. (TSN, December 27, 1989, pp. 126-128)

Clearly, the aforequoted testimonies are hearsay because the witnesses testified on
matters not on their own personal knowledge. The Solicitor General, however,
argues that while the testimonies may be hearsay, the same are admissible
because of the failure of counsel for appellant to object thereto.
It is true that the lack of objection to a hearsay testimony results in its being
admitted as evidence. But, one should not be misled into thinking that since these
testimonies are admitted as evidence, they now have probative value. Hearsay
evidence, whether objected to or not, cannot be given credence. In People v.
Valero, We emphatically declared that:

"The failure of the defense counsel to object to the presentation of

incompetent evidence, like hearsay evidence or evidence that
violates the rule of res inter alios acta, or his failure to ask for the
striking out of the same does not give such evidence any probative
value. The lack of objection may make any incompetent evidence
admissible. But admissibility of evidence should not be equated
with weight of evidence. Hearsay evidence whether objected to or
not has no probative value." (L-45283-84, March 19, 1982, 112
SCRA 675, underlining supplied)
It is unfortunate that the prosecution failed to present as witnesses the persons
who knew the appellant as the lessee and owner of the M-14 rifle. In this way, the
appellant could have exercised his constitutional right to confront the witnesses and
to cross-examine them for their truthfulness. Likewise, the records do not show any
other evidence which could have identified the appellant as the lessee of the house
and the owner of the subversive items. To give probative value to these hearsay
statements and convict the appellant on this basis alone would be to render his
constitutional rights useless and without meaning.
Even assuming for the sake of argument that the appellant is the lessee of the
house, the case against him still will not prosper, the reason being that the law
enforcers failed to comply with the requirements of a valid search and seizure
proceedings.
The right against unreasonable searches and seizures is enshrined in the
Constitution (Article III, Section 2). The purpose of the law is to prevent violations
of private security in person and property, and unlawful invasions of the sanctity of
the home by officers of the law acting under legislative or judicial sanction and to
give remedy against such usurpations when attempted (see Alvero v. Dizon, 76
Phil. 637, 646). However, such right is not absolute. There are instances when a
warrantless search and seizure becomes valid, namely: (1) search incidental to an
arrest; (2) search of a moving vehicle; and (3) seizure of evidence in plain view
(Manipon, Jr. v. Sandiganbayan, L-58889, July 31, 1986, 143 SCRA 267, 276).
None of these exceptions is present in this case.
The Solicitor General argues otherwise. He claims that the group of Lt. Quijardo
entered the appellant's house upon invitation of Luz Tanciangco and Luzviminda
Morados, helper of the appellant; that when Luz Tanciangco opened one of the
rooms, they saw a copier machine, computer, M-14 rifle, bullets and ammunitions,
radio set and more subversive items; that technically speaking, there was no
search as the group was voluntarily shown the articles used in subversion; that
besides, a search may be validly conducted without a search warrant with the
consent of the person searched as in this case, appellant's helper and Luz
Tanciangco allowed them to enter and to look around the appellant's house; and
that since the evidence seized was in plain view of the authorities, the same may
be seized without a warrant.
We are not persuaded. The constitutional immunity from unreasonable searches
and seizures, being a personal one, cannot be waived by anyone except the person
whose rights are invaded or one who is expressly authorized to do so in his or her
behalf (De Garcia v. Locsin, 65 Phil. 689, 695). In the case at bar, the records show
that appellant was not in his house at that time Luz Tanciangco and Luz Morados,
his alleged helper, allowed the authorities to enter it (TSN, October 31, 1989, p.
10). We find no evidence that would establish the fact that Luz Morados was indeed
the appellant's helper or if it was true that she was his helper, that the appellant
had given her authority to open his house in his absence. The prosecution likewise
failed to show if Luz Tanciangco has such an authority. Without this evidence, the
authorities' intrusion into the appellant's dwelling cannot be given any color of
legality. While the power to search and seize is necessary to the public welfare, still
it must be exercised and the law enforced without transgressing the constitutional
rights of the citizens, for the enforcement of no statute is of sufficient importance to
justify indifference to the basic principles of government (Rodriguez v. Evangelista,
65 Phil. 230, 235). As a consequence, the search conducted by the authorities was
illegal. It would have been different if the situation here demanded urgency which
could have prompted the authorities to dispense with a search warrant. But the
record is silent on this point. The fact that they came to the house of the appellant
at nighttime (Exh. J, p. 7, Records), does not grant them the license to go inside
his house. In Alih v. Castro, We ruled that:

"The respondents cannot even plead the urgency of the raid

because it was in fact not urgent. They knew where the petitioners
were. They had every opportunity to get a search warrant before
making the raid. If they were worried that the weapons inside the
compound would be spirited away, they could have surrounded the
premises in the meantime, as a preventive measure. There was
absolutely no reason at all why they should disregard the orderly
processes required by the Constitution and instead insist on
arbitrarily forcing their way into the petitioner's premises with all
the menace of a military invasion." (G.R. No. 69401, June 23,
1987, 151 SCRA 279, 286)

Another factor which illustrates the weakness of the case against the accused-
appellant is in the identification of the gun which he was charged to have illegally
possessed. In the amended information (supra, pp. 1-2), the gun was described as
an M-14 rifle with serial no. 1249935. Yet, the gun presented at the trial bore a
different serial number thus:

"FISCAL:

Q.   Will you kindly restate again the items that you found inside
the house?

Lt. Quijardo:

A.    When she opened the doors of the rooms that we requested
for, we immediately saw different kinds of books of which we
believed to be used for subversive orientation and the M-14 rifle.

Q.   In what portion of the house did you find this M-14 rifle which
you mentioned?

A.    In the same room of which the subversive documents were

placed.

Q.   If this firearm would be shown to you would you be able to

identify the same?

A.    Yes, sir.

Q.   I am showing to you a rifle bearing a serial number 1249985

which for purposes of identification, may we request your Honor,
that this rifle be marked as Exhibit 'D.'

"COURT:

Mark it.

"FISCAL:
 Q.   Kindly examine the said firearm and tell the Honorable Court
the relation of that firearm to the firearm which according to you
you found inside the room allegedly occupied by one Bernie
Mendoza?

A.    This is the same rifle which was discovered during our raid in
the same house." (TSN, October 31, 1989, pp. 36-38, underlining
supplied).

The Solicitor General contends that the discrepancy is merely a typographical error.
We do not think so. This glaring error goes into the substance of the charge. Its
correction or lack of it could spell the difference between freedom and incarceration
of the accused-appellant.
In crimes of illegal possession of firearm as in this case, the prosecution has the
burden to prove the existence of the firearm and that the accused who possessed
or owned the firearm does not have the corresponding license for it. Since the gun
as identified at the trial differs from the gun described in the amended information,
the corpus delicti (the substance of the crime, the fact that a crime has actually
been committed) has not been fully established. This circumstance coupled with
dubious claims of appellant's connection to the house (where the gun was found)
have totally emasculated the prosecution's case.
But even as We find for the accused-appellant, We, take exception to the argument
raised by the defense that the crime of subversion absorbs the crime of illegal
possession of firearm in furtherance of or incident to or in connection with the crime
of subversion. It appears that the accused-appellant is facing a separate charge of
subversion. The defense submits that the trial court should have peremptorily
dismissed this case in view of the subversion charge. In People of the Philippines v.
Asuncion, et al., We set forth in no uncertain terms the futility of such argument.
We quote:

"If We are to espouse the theory of the respondents that force and
violence are the very essence of subversion, then it loses its
distinction from rebellion. In People v. Liwanag (G.R. No. 27683;
1976, 73 SCRA 473, 480 [1976])., the Court categorically
distinguished subversion from rebellion, and held:

`Violation of Republic Act No. 1700, or subversion, as it is more commonly called,

is a crime distinct from that of actual rebellion. The crime of rebellion is committed
by rising publicly and taking up arms against the Government for any of the
purposes specified in Article 134 of the Revised Penal Code; while the Anti-
Subversion Act (Republic Act No. 1700) punishes affiliation or membership in a
subversive organization as defined therein. In rebellion, there must be a public
uprising and taking of arms against the Government; whereas, in subversion, mere
membership in a subversive association is sufficient and the taking up of arms by a
member of a subversive organization against the Government is but a circumstance
which raises the penalty to be imposed upon the offender.' (Underscoring supplied)

"Furthermore, in the case of Buscayno v. Military Commission (G.R.

58284, 109 SCRA 289 [1981]), this Court said that subversion, like
treason, is a crime against national security, while rebellion is a
crime against public order. Rising publicly and taking arms against
the Government is the very element of the crime of rebellion. On
 the other hand, R.A. 1700 was enacted to outlaw the Communist
Party of the Philippines (CPP), other similar associations and its
successors because their existence and activities constitute a clear,
present and grave danger to national security.

"The first Whereas clause of R.A. 1700 states that the CPP is an
organized conspiracy to overthrow the Government, not only by
force and violence but also by deceit, subversion and other illegal
means. This is a recognition that subversive acts do not only
constitute force and violence (contrary to the arguments of private
respondents), but may partake of other forms as well. One may in
fact be guilty of subversion by authoring subversive materials,
where force and violence is neither necessary or indispensable."

"Private respondents contended that the Court in Misolas v. Panga

impliedly ruled that if an accused is simultaneously charged with
violation of P.D. 1866 and subversion, the doctrine of absorption of
common crimes as applied in rebellion would have found
application therein. The respondents relied on the opinion of this
Court when it said:

'x x x in the present case, petitioner is being charged specifically for the qualified
offense of illegal possession of firearms and ammunition under PD 1866. HE IS NOT
BEING CHARGED WITH THE COMPLEX CRIME OF SUBVERSION WITH ILLEGAL
POSSESSION OF FIREARMS. NEITHER IS HE BEING SEPARATELY CHARGED FOR
SUBVERSION AND FOR ILLEGAL POSSESSION OF FIREARMS. Thus, the rulings of
the Court in Hernandez, Geronimo and Rodriquez find no application in this case.'

"This is however a mere obiter. In the above case, the Court

upheld the validity of the charge under the third paragraph of
Section 1 of P.D. 1866. The Court opined that the dictum in the
Hernandez case is not applicable in that case, considering that the
legislature deemed it fit to provide for two distinct offenses: (1)
illegal possession of firearms qualified by subversion (P.D. 1866)
and (2) subversion qualified by the taking up of arms against the
Government (R.A. 1700). 'The practical result of this may be harsh
or it may pose grave difficulty on an accused in instances similar to
those that obtain in the present case, but the wisdom of the
legislature in the lawful exercise of its power to enact laws is
something that the Court cannot inquire into. . ." (G.R. Nos.
83837-42, April 22, 1992).

Nonetheless, the evidence in hand is too weak to convict the accused-appellant of

the charge of illegal possession of firearm in furtherance of, or incident to or in
connection with the crime of subversion, We are therefore, left with no option, but
to acquit the accused on reasonable doubt.
ACCORDINGLY, the decision appealed from is hereby REVERSED and the appellant
is ACQUITTED with costs de oficio.
SO ORDERED.

Cruz, (Chairman), Grino-Aquino, and Bellosillo, JJ., concur.

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345 Phil. 632

THIRD DIVISION

[ G.R. No. 113447, October 09, 1997 ]

ALAIN MANALILI Y DIZON, PETITIONER, VS. COURT OF APPEALS

AND PEOPLE OF THE PHILIPPINES, RESPONDENTS.
DECISION

PANGANIBAN, J.:
When dealing with a rapidly unfolding and potentially criminal situation in the city
streets where unarguably there is no time to secure an arrest or a search warrant,
policemen should employ limited, flexible responses -- like “stop-and-frisk” -- which
are graduated in relation to the amount of information they possess, the lawmen
being ever vigilant to respect and not to violate or to treat cavalierly the citizen’s
constitutional rights against unreasonable arrest, search and seizure.
The Case

This rule is reiterated as we resolve this petition for review on certiorari under Rule
45 of the Rules of Court, seeking the reversal of the Decision of the Court of
Appeals dated April 19, 1993 and its Resolution dated January 20, 1994 in CA G.R.
CR No. 07266, entitled “People of the Philippines vs. Alain Manalili y Dizon.”

In an Information dated April 11, 1988,[1] Petitioner Alain Manalili y Dizon was
charged by Assistant Caloocan City Fiscal E. Juan R. Bautista with violation of
Section 8, Article II of Republic Act No. 6425, allegedly committed as follows:[2]

“That on or about the 11th day of April 1988 in Caloocan City, MM,
Philippines and within the jurisdiction of this Honorable Court, the
above-named accused without any authority of law, did then and
there wilfully, unlawfully and feloniously have in his custody,
possession and control crushed marijuana residue, which is a
prohibited drug and knowing the same to be such.
 Contrary to Law.”

Upon his arraignment on April 21, 1988, appellant pleaded “not guilty” to the
charge.[3] With the agreement of the public prosecutor, appellant was released
after filing a P10,000.00 bail bond.[4] After trial in due course, the Regional Trial
Court of Caloocan City, Branch 124, acting as a Special Criminal Court, rendered on
May 19, 1989 a decision[5] convicting appellant of illegal possession of marijuana
residue. The dispositive portion of the decision reads:[6]

“WHEREFORE, in view of all the foregoing, this Court finds the

accused ALAIN MANALILI Y DIZON guilty beyond reasonable doubt
of violation of Section 8, Article II, of Republic Act No. 6425, as
amended (Illegal Possession of Marijuana residue), and hereby
snetences (sic) said accused to suffer imprisonment of SIX (6)
YEARS and ONE (1) DAY; and to pay a fine of P6,000.00; and to
pay the costs.

xxx                                                                       
xxx                                                                               xxx.”

Appellant remained on provisional liberty.[7] Atty. Benjamin Razon, counsel for the
defense, filed a Notice of Appeal[8] dated May 31, 1989. On April 19, 1993,
Respondent Court[9] promulgated its assailed Decision, denying the appeal and
affirming the trial court:[10]

“ACCORDINGLY, the decision appealed from dated May 19, 1989 is

hereby AFFIRMED in all respects. Costs against appellant.”

Respondent Court[11] denied reconsideration via its assailed Resolution dated

January 20, 1994, disposing:

“ACCORDINGLY, accused-appellant’s motion for reconsideration is,

as is hereby DENIED.”

The Facts

Version of the Prosecution

The facts, as found by the trial court, are as follows:[12]

“At about 2:10 o’clock in the afternoon of April 11, 1988, policemen
from the Anti-Narcotics Unit of the Kalookan City Police Station
were conducting a surveillance along A. Mabini street, Kalookan
City, in front of the Kalookan City Cemetery. The policemen were
Pat. Romeo Espiritu and Pat. Anger Lumabas and a driver named
Arnold Enriquez was driving a Tamaraw vehicle which was the
official car of the Police Station of Kalookan City. The surveillance
 was being made because of information that drug addicts were
roaming the area in front of the Kalookan City Cemetery.

Upon reaching the Kalookan City Cemetery, the policemen alighted

from their vehicle. They then chanced upon a male person in front
of the cemetery who appeared high on drugs. The male person was
observed to have reddish eyes and to be walking in a swaying
manner. When this male person tried to avoid the policemen, the
latter approached him and introduced themselves as police officers.
The policemen then asked the male person what he was holding in
his hands. The male person tried to resist. Pat. Romeo Espiritu
asked the male person if he could see what said male person had in
his hands. The latter showed the wallet and allowed Pat. Romeo
Espiritu to examine the same. Pat. Espiritu took the wallet and
examined it. He found suspected crushed marijuana residue inside.
He kept the wallet and its marijuana contents.

The male person was then brought to the Anti-Narcotics Unit of the
Kalookan City Police Headquarters and was turned over to Cpl.
Wilfredo Tamondong for investigation. Pat. Espiritu also turned
over to Cpl. Tamondong the confiscated wallet and its suspected
marijuana contents. The man turned out to be the accused ALAIN
MANALILI y DIZON.

Upon receipt of the confiscated suspected marijuana residue from

Pat. Espiritu, Cpl. Tamondong wrapped the same with a white
sheet of paper on which he wrote ‘Evidence ‘A’ 4/11/88 Alain
Manalili’. The white sheet of paper was marked as Exhibit ‘E-3’. The
residue was originally wrapped in a smaller sheet of folded paper.
(Exhibit ‘E-4’).

Cpl. Tamondong next prepared a referral slip addressed to the NBI

Forensic Chemistry Section requesting a chemical analysis of the
subject marijuana residue (Exhibit ‘D’). Cpl. Tamondong thereafter
prepared a Joint Affidavit of the apprehending policemen (Exhibit
‘A’). Pat. Angel Lumabas handcarried the referral slip (Exhibit ‘D’)
to the National Bureau of Investigation (NBI), including the subject
marijuana residue for chemical analysis. The signature of Pat.
Lumabas appears on the left bottom corner of Exhibit ‘D’.

The Forensic Chemistry Section of the NBI received the aforesaid

referral slip and the subject marijuana residue at 7:40 o’clock in
the evening of April 11, 1988 as shown on the stamped portion of
Exhibit ‘D’.

It was NBI Aida Pascual who conducted the microscopic and chemical examinations
of the specimen which she identified. (Exhibit ‘E’)[13] Mrs. Pascual referred to the
subject specimen as ‘crushed marijuana leaves’ in her Certification dated April 11,
1988 (Exhibit ‘F’).[14] These crushed marijuana leaves gave positive results for
marijuana, according to the Certificate.

Mrs. Pascual also conducted a chromatographic examination of the

 specimen. In this examination, she also found that the ‘crushed
marijuana leaves’ gave positive results for marijuana. She then
prepared a Final Report of her examinations (Exhibit ‘G’).

After conducting the examinations, Ms. Pascual placed the

specimen in a white letter-envelope and sealed it. (Exhibit ‘E’). She
then wrote identification notes on this letter-envelope. (Exhibit ‘E-
1’).

Pat. Lumabas carried the Certification marked as Exhibit ‘F’ from

the NBI Forensic Chemistry Section to Cpl. Tamondong. Upon
receipt thereof, Cpl. Tamondong prepared a referral slip addressed
to the City Fiscal of Kalookan City. (Exhibit ‘C’)”

On rebuttal, Pat. Espiritu testified that appellant was not riding a tricycle but was
walking in front of the cemetery when he was apprehended.[15]

Version of the Defense

The trial court summarized the testimonies of the defense witnesses as follows:[16]

“At about 2:00 o’clock in the afternoon of April 11, 1988, the
accused ALAIN MANALILI was aboard a tricycle at A. Mabini street
near the Kalookan City Cemetery on the way to his boarding house.
Three policemen ordered the driver of the tricycle to stop because
the tricycle driver and his lone passenger were under the influence
of marijuana. The policemen brought the accused and the tricycle
driver inside the Ford Fiera which the policemen were riding in. The
policemen then bodily searched the accused and the tricycle driver.
At this point, the accused asked the policemen why he was being
searched and the policemen replied that he (accused) was carrying
marijuana. However, nothing was found on the persons of the
accused and the driver. The policemen allowed the tricycle driver to
go while they brought the accused to the police headquarters at
Kalookan City where they said they would again search the
accused.

On the way to the police headquarters, the accused saw a neighbor

and signaled the latter to follow him. The neighbor thus followed
the accused to the Kalookan City Police Headquarters. Upon arrival
thereat, the accused was asked to remove his pants in the
presence of said neighbor and another companion. The policemen
turned over the pants of the accused over a piece of bond paper
trying to look for marijuana. However, nothing was found, except
for some dirt and dust. This prompted the companion of the
neighbor of the accused to tell the policemen to release the
accused. The accused was led to a cell. The policemen later told the
accused that they found marijuana inside the pockets of his pants.

At about 5:00 o’clock in the afternoon on the same day, the

accused was brought outside the cell and was led to the Ford Fiera.
The accused was told by the policemen to call his parents in order
 to ‘settle’ the case. The policemen who led the accused to the Ford
Fiera were Pat. Lumabas, Pat. Espiritu and Cpl. Tamondong. Pat.
Lumabas was the policeman who told the accused to call his
parents. The accused did not call his parents and he told the
policemen that his parents did not have any telephone.

At about 5:30 o’clock in the afternoon of the same day, the

accused was brought in the office of an inquest Fiscal. There, the
accused told the Fiscal that no marijuana was found on his person
but the Fiscal told the accused not to say anything. The accused
was then brought back to the Kalookan City Jail.

Loreto Medenilla, the tricycle driver who was allegedly with the
accused when he and the accused were stopped by policemen and
then bodily searched on April 11, 1988, testified. He said that the
policemen found nothing either on his person or on the person of
the accused when both were searched on April 11, 1988.

Roberto Abes, a neighbor of the accused, testified that he followed

the accused at the Kalookan City Police Headquarters on April 11,
1988. He said that the police searched the accused who was made
to take off his pants at the police headquarters but no marijuana
was found on the body of the accused.”

Appellant, who was recalled to the stand as sur-rebuttal witness, presented several
pictures showing that tricycles were allowed to ply in front of the Caloocan
Cemetery.[17]
The Rulings of the Trial and the Appellate Courts

The trial court convicted petitioner of illegal possession of marijuana residue largely
on the strength of the arresting officers’ testimony. Patrolmen Espiritu and Lumabas
were “neutral and disinterested” witnesses, testifying only on what transpired
during the performance of their duties. Substantially, they asserted that the
appellant was found to be in possession of a substance which was later identified as
crushed marijuana residue.

The trial court disbelieved appellant’s defense that this charge was merely “trumped
up,” because the appellant neither took any legal action against the allegedly erring
policemen nor moved for a reinvestigation before the city fiscal of Kalookan City.

On appeal, Respondent Court found no proof that the decision of the trial court was
based on speculations, surmises or conjectures. On the alleged “serious”
discrepancies in the testimonies of the arresting officers, the appellate court ruled
that the said inconsistencies were insubstantial to impair the essential veracity of
the narration. It further found petitioner’s contention -- that he could not be
convicted of illegal possession of marijuana residue -- to be without merit, because
the forensic chemist reported that what she examined were marijuana leaves.

Issues
Petitioner assigns the following errors on the part of Respondent Court:
“I

The Court of Appeals erred in upholding the findings of fact of the trial court.
II

The Court of Appeals erred in upholding the conviction of (the) accused (and) in
ruling that the guilt of the accused had been proved (beyond) reasonable doubt.
III

The Court of Appeals erred in not ruling that the inconsistencies in the testimonies
of the prosecution witnesses were material and substantial and not minor.
IV

The Court of Appeals erred in not appreciating the evidence that the accused was
framed for the purpose of extorting money.
V

The Court of Appeals erred in not acquitting the accused when the evidence
presented is consistent with both innocence and guilt.
VI

The Court of Appeals erred in admitting the evidence of the prosecution which are
inadmissible in evidence.”

Restated more concisely, petitioner questions (1) the admissibility of the evidence
against him, (2) the credibility of prosecution witnesses and the rejection by the
trial and the appellate courts of the defense of extortion, and (3) the sufficiency of
the prosecution evidence to sustain his conviction.
The Court’s Ruling

The petition has no merit.

First Issue: Admissibility of the Evidence Seized During a Stop-and-Frisk

Petitioner protests the admission of the marijuana leaves found in his possession,
contending that they were products of an illegal search. The Solicitor General, in his
Comment, dated July 5, 1994, which was adopted as memorandum for respondent,
counters that the inadmissibility of the marijuana leaves was waived because
petitioner never raised this issue in the proceedings below nor did he object to their
admissibility in evidence. He adds that, even assuming arguendo that there was no
waiver, the search was legal because it was incidental to a warrantless arrest under
Section 5 (a), Rule 113 of the Rules of Court.

We disagree with petitioner and hold that the search was valid, being akin to a
stop-and-frisk. In the landmark case of Terry vs. Ohio,[18] a stop-and-frisk was
defined as the vernacular designation of the right of a police officer to stop a citizen
on the street, interrogate him, and pat him for weapon(s):

“x x x (W)here a police officer observes an 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 identified 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, and any weapon
seized may properly be introduced in evidence against the person
from whom they were taken.”[19]

In allowing such a search, the United States Supreme Court held that the interest
of effective crime prevention and detection allows a police officer to approach a
person, in appropriate circumstances and manner, for purposes of investigating
possible criminal behavior even though there is insufficient probable cause to make
an actual arrest. This was the legitimate investigative function which Officer
McFadden discharged in that case, when he approached petitioner and his
companion whom he observed to have hovered alternately about a street corner for
an extended period of time, while not waiting for anyone; paused to stare in the
same store window roughly 24 times; and conferred with a third person. It would
have been sloppy police work for an officer of 30 years’ experience to have failed to
investigate this behavior further.

In admitting in evidence two guns seized during the stop-and-frisk, the US

Supreme Court held that what justified the limited search was the more immediate
interest of the police officer in taking steps to assure himself that the person with
whom he was dealing was not armed with a weapon that could unexpectedly and
fatally be used against him.

It did not, however, abandon the rule that the police must, whenever practicable,
obtain advance judicial approval of searches and seizures through the warrant
procedure, excused only by exigent circumstances.

In Philippine jurisprudence, the general rule is that a search and seizure must be
validated by a previously secured judicial warrant; otherwise, such search and
seizure is unconstitutional and subject to challenge.[20] Section 2, Article III of the
1987 Constitution, gives this guarantee:

“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.”

Any evidence obtained in violation of the mentioned provision is legally inadmissible

in evidence as a “fruit of the poisonous tree,” falling under the exclusionary rule:

“SEC. 3. x x x

(2)     Any evidence obtained in violation of x x x the preceding

section shall be inadmissible for any purpose in any proceeding.”

This right, however, is not absolute.[21] The recent case of People vs. Lacerna
enumerated five recognized exceptions to the rule against warrantless search and
seizure, viz.: “(1) search incidental to a lawful arrest, (2) search of moving
vehicles, (3) seizure in plain view, (4) customs search, and (5) waiver by the
accused themselves of their right against unreasonable search and seizure.”[22] In
People vs. Encinada,[23] the Court further explained that “[i]n these cases, the
search and seizure may be made only with probable cause as the essential
requirement. Although the term eludes exact definition, probable cause for a search
is, at best, defined as a reasonable ground of suspicion, supported by
circumstances sufficiently strong in themselves to warrant a cautious man in the
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 item(s), article(s) or object(s) sought in connection with said offense or subject
to seizure and destruction by law is in the place to be searched.”

Stop-and-frisk has already been adopted as another exception to the general rule
against a search without a warrant. In Posadas vs. Court of Appeals ,[24] the Court
held that there are many instances where a search and seizure can be effected
without necessarily being preceded by an arrest, one of which is stop-and-frisk. In
said case, members of the Integrated National Police of Davao stopped petitioner,
who was carrying a buri bag and acting suspiciously. They found inside petitioner’s
bag one .38-cal. revolver with two rounds of live ammunition, two live ammunitions
for a .22-cal. gun and a tear gas grenade. In upholding the legality of the search,
the Court said that to require the police officers to search the bag only after they
had obtained a search warrant might prove to be useless, futile and much too late
under the circumstances. In such a situation, it was reasonable for a police officer
to stop a suspicious individual briefly in order to determine his identity or to
maintain the status quo while obtaining more information, rather than to simply
shrug his shoulders and allow a crime to occur.

In the case at hand, Patrolman Espiritu and his companions observed during their
surveillance that appellant had red eyes and was wobbling like a drunk along the
Caloocan City Cemetery, which according to police information was a popular
hangout of drug addicts. From his experience as a member of the Anti-Narcotics
Unit of the Caloocan City Police, such suspicious behavior was characteristic of drug
addicts who were “high.” The policemen therefore had sufficient reason to stop
petitioner to investigate if he was actually high on drugs. During such investigation,
they found marijuana in petitioner’s possession:[25]

FISCAL RALAR:

Q    And why were you conducting surveillance in front of the

Caloocan Cemetery, Sangandaan, Caloocan City?
A     Because there were some informations that some drug
dependents were roaming around at A. Mabini Street in front of the
Caloocan Cemetery, Caloocan City.

xxx                                                                       
xxx                                                                               xxx

Q    While you were conducting your surveillance, together with

Pat. Angel Lumabas and one Arnold Enriquez, what happened, if
any?
A     We chanced upon one male person there in front of the
Caloocan Cemetery then when we called his attention, he tried to
avoid us, then prompting us to approach him and introduce
ourselves as police officers in a polite manner.

xxx                                                                       
xxx                                                                               xxx

Q    Could you describe to us the appearance of that person when

you chanced upon him?
A     That person seems like he is high on drug.

Q    How were you able to say Mr. Witness that that person that
you chanced upon was high on drug?
A     Because his eyes were red and he was walking on a swaying
manner.

Q    What was he doing in particular when you chanced upon him?
A     He was roaming around, sir.

Q    You said that he avoided you, what did you do when he
avoided you?
A     We approached him and introduced ourselves as police officers
in a polite manner, sir.

Q    How did you introduce yourselves?

A     In a polite manner, sir.

Q    What did you say when you introduced yourselves?

A     We asked him what he was holding in his hands, sir.

Q    And what was the reaction of the person when you asked him
what he was holding in his hands?
A     He tried to resist, sir.

Q    When he tried to resist, what did you do?

A     I requested him if I can see what was he was(sic) holding in
 his hands.

Q    What was the answer of the person upon your request?
A     He allowed me to examine that something in his hands, sir.

xxx                                                                       
xxx                                                                               xxx

Q    What was he holding?

A     He was holding his wallet and when we opened it, there was a
marijuana (sic) crushed residue.”

Furthermore, we concur with the Solicitor General’s contention that petitioner

effectively waived the inadmissibility of any evidence illegally obtained when he
failed to raise this issue or to object thereto during the trial. A valid waiver of a
right, more particularly of the constitutional right against unreasonable search,
requires the concurrence of the following requirements: (1) the right to be waived
existed; (2) the person waiving it had knowledge, actual or constructive, thereof;
and (3) he or she had an actual intention to relinquish the right.[26] Otherwise, the
Courts will indulge every reasonable presumption against waiver of fundamental
safeguards and will not deduce acquiescence from the failure to exercise this
elementary right. In the present case, however, petitioner is deemed to have
waived such right for his failure to raise its violation before the trial court. In
petitions under Rule 45, as distinguished from an ordinary appeal of criminal cases
where the whole case is opened for review, the appeal is generally limited to the
errors assigned by petitioner. Issues not raised below cannot be pleaded for the
first time on appeal.[27]

Second Issue: Assessment of Evidence

Petitioner also contends that the two arresting officers’ testimony contained
“polluted, irreconcilable and unexplained” contradictions which did not support
petitioner’s conviction.

We disagree. Time and again, this Court has ruled that the trial court’s assessment
of the credibility of witnesses, particularly when affirmed by the Court of Appeals as
in this case, is accorded great weight and respect, since it had the opportunity to
observe their demeanor and deportment as they testified before it. Unless
substantial facts and circumstances have been overlooked or misappreciated by the
trial court which, if considered, would materially affect the result of the case, we
will not countenance a departure from this rule.[28]

We concur with Respondent Court’s ruling:

“(e)ven assuming as contended by appellant that there had been

some inconsistencies in the prosecution witnesses’ testimonies, We
do not find them substantial enough to impair the essential veracity
of their narration. In People vs. Avila, it was held that –‘As long as
the witnesses concur on the material points, slight differences in
their remembrance of the details, do not reflect on the essential
veracity of their statements.’”
However, we find that, aside from the presumption of regularity in the performance
of duty, the bestowal of full credence on Pat. Espiritu’s testimony is justified by
tangible evidence on record. Despite Pat. Lumabas’ contradictory testimony, that of
Espiritu is supported by the Joint Affidavit[29] signed by both arresting policemen.
The question of whether the marijuana was found inside petitioner’s wallet or inside
a plastic bag is immaterial, considering that petitioner did not deny possession of
said substance. Failure to present the wallet in evidence did not negate that
marijuana was found in petitioner’s possession. This shows that such contradiction
is minor, and does not destroy Espiritu’s credibility.[30]

Third Issue: Sufficiency of Evidence

The elements of illegal possession of marijuana are: (a) the accused is in

possession of an item or object which is identified to be a prohibited drug; (b) such
possession is not authorized by law; and (c) the accused freely and consciously
possessed the said drug.[31]

The substance found in petitioner’s possession was identified by NBI Forensic

Chemist Aida Pascual to be crushed marijuana leaves. Petitioner’s lack of authority
to possess these leaves was established. His awareness thereof was undeniable,
considering that petitioner was high on drugs when stopped by the policemen and
that he resisted when asked to show and identify the thing he was holding. Such
behavior clearly shows that petitioner knew that he was holding marijuana and that
it was prohibited by law.

Furthermore, like the trial and the appellate courts, we have not been given
sufficient grounds to believe the extortion angle in this case. Petitioner did not file
any administrative or criminal case against the arresting officers or present any
evidence, other than his bare claim. His argument that he feared for his life was
lame and unbelievable, considering that he was released on bail and continued to
be on bail as early as April 26, 1988.[32] Since then, he could have made the
charge in relative safety, as he was no longer in the custody of the police. His
defense of frame-up, like alibi, is viewed by this Court with disfavor, because it is
easy to concoct and fabricate.[33]
The Proper Penalty

The trial and the appellate courts overlooked the Indeterminate Sentence Law (Act
No. 4103, as amended) by sentencing petitioner to a straight penalty of six years
and one day of imprisonment, aside from the imposed fine of six thousand pesos.
This Act requires the imposition of an indeterminate penalty:

“SECTION 1. Hereafter, in imposing a prison sentence for an

offense punished by the Revised Penal Code, or its amendments,
the court shall sentence the accused to an indeterminate sentence
the maximum term of which shall be that which, in view of the
attending circumstances, could be properly imposed under the
rules of the said Code, and the minimum which shall be within the
range of the penalty next lower to that prescribed by the Code for
the offense; and if the offense is punished by any other law, the
court shall sentence the accused to an indeterminate sentence, the
 maximum term of which shall not exceed the maximum fixed by
said law and the minimum shall not be less than the minimum term
prescribed by the same. (As amended by Act No. 4225.)

“SEC. 2. This Act shall not apply to persons convicted of offenses

punished with death penalty or life-imprisonment; to those
convicted of treason; to those convicted of misprision of treason,
rebellion, sedition or espionage; to those convicted of piracy; to
those who are habitual delinquents; to those who shall have
escaped from confinement or evaded sentence; to those who
having been granted conditional pardon by the Chief Executive
shall have violated the terms thereof; to those whose maximum
term of imprisonment does not exceed one year, not to those
already sentenced by final judgment at the time of approval of this
Act, except as provided in Section 5 hereof.” (Underscoring
supplied)

The Dangerous Drugs Law, R.A. 6425, as amended by B.P. 179, imposes the
following penalty for illegal possession of marijuana:

“Sec. 8. x x x x

The penalty of imprisonment ranging from six years and one day to twelve years
and a fine ranging from six thousand to twelve thousand pesos shall be imposed
upon any person who, unless authorized by law, shall possess or use Indian hemp.”

Prescinding from the foregoing, the Court holds that the proper penalty is an
indeterminate sentence of imprisonment ranging from six years and one day to
twelve years.[34]

WHEREFORE, the assailed Decision and Resolution are hereby AFFIRMED with
MODIFICATION. Petitioner is sentenced to suffer IMPRISONMENT of SIX (6)
YEARS, as minimum, to TWELVE (12) YEARS, as maximum, and to PAY a FINE
of SIX THOUSAND PESOS. Costs against petitioner.
SO ORDERED.

Narvasa, C.J., (Chairman), Romero, Melo, and Francisco, JJ., concur.

[1] Docketed as Crim. Case No. C-30549.

[2] CA rollo, p. 4.

[3] Records, p. 12.

[4] Ibid., p. 23.

[5] Penned by Judge Rene Victoriano.

[6] CA rollo, p. 12D.

[7] Records, p. 180.

[8] p. 13.

[9] The Eighth Division composed of JJ. Justo P. Torres, Jr., ponente, Reynato S.
Puno (both of whom are now members of the Supreme Court), and Pacita
Canizares-Nye.

[10] Rollo, pp. 45-51.

[11] The former Eighth Division was reorganized and J. Emeterio C. Cui replaced J.
Reynato S. Puno.

[12] Records, pp. 175-177. The narration of facts by the trial court is reproduced
here because it contains more details than the version of Respondent Court.

[13] Exhibit “F,” Exhibits Envelope, p. 2

[14] Exhibit “G,” Exhibits Envelope, p. 3.

[15] TSN, April 19, 1989, pp. 2-4.

[16] Records, pp. 177-178. The Memorandum for the Petitioner did not present the
defense’s version of the facts.

[17] TSN, April 19, 1989, pp. 9-12.

[18] 20 L Ed 2d 889; 88 S Ct 1868, 392 US 1, 900, June 10, 1968.

[19] Herrera, A Handbook on Arrest, Search and Seizure and Custodial

Investigation, 1995 ed., p. 185; and Terry vs. Ohio, supra, p. 911.

[20] Pita vs. Court of Appeals, 178 SCRA 362, 376, October 5, 1989; People vs.
Saycon, 236 SCRA 325, 328, September 5, 1994; People vs. Cuizon, 256 SCRA
325, 338, April 18, 1996; and People vs. Lacerna, G.R. No. 109250, September 5,
1997.

[21] Section 12, Rule 126 of the Rules of Court, allows a search without a warrant
for “dangerous weapons or anything which may be used as proof of the commission
of an offense” of a person lawfully arrested.

[22] People vs. Lacerna, supra; People vs. Fernandez, 239 SCRA 174, 182-183,
December 13, 1994. In the latter case, Puno, J., proposed a sixth exception:
exigent circumstances, as a catchall category that would encompass a number of
diverse situations where some kind of emergency makes obtaining a search warrant
impractical, useless, dangerous or unnecessary.

[23] G.R. No. 116720, October 2, 1997, pp. 15-16, citing A Handbook on Arrest,
supra, p. 40.

[24] 188 SCRA 288, 292-293, August 2, 1990, per Gancayco, J., concurred in by all
members of the First Division, namely: Narvasa, Cruz, Griño-Aquino and Medialdea,
JJ.

[25] TSN, May 27, 1988, pp. 6-9.

[26] People vs. Salangga, 234 SCRA 407, 417-4187, July 25, 1994, per Regalado,
J.

[27] Manila Bay Club Corporation vs. Court of Appeals, 245 SCRA 715, 729, July
11, 1995; Chua vs. Court of Appeals, 206 SCRA 339, 344-345, February 19, 1992;
and Baquiran v.s Court of Appeals, 2 SCRA 873, 877, July 31, 1961.

[28] People vs. Atad, G.R. No. 114105, January 16, 1997, p. 19; People vs. Lua,
256 SCRA 539, 546, April 26, 1996; and People vs. Exala, 221 SCRA 494, 498-499,
April 22, 1993.

[29] Exhibits “A” & “A-1,” Exhibits Envelope, p. 1.

[30] People vs. Lua, supra, p. 547.

[31] People vs. Lacerna, supra.

[32] Records, p. 23.

[33] People vs. Velasco, 252 SCRA 135, 143, January 23, 1996, per Davide, J.

[34] People vs. Tabar, 222 SCRA 144, 155, May 17, 1993, per Davide, J.

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444 Phil. 757

FIRST DIVISION

[ G.R. Nos. 136066-67, February 04, 2003 ]

PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. BINAD SY

CHUA, ACCUSED-APPELLANT.

DECISION

YNARES-SANTIAGO, J.:

Accused-appellant Binad Sy Chua was charged with violation of Section 16,

Article III of R.A. 6425, as amended by R.A. 7659, and for Illegal Possession
of ammunitions in two separate Informations which read as follows:

Criminal Case No. 96-507[1]

That on or about the 21st day of September 1996, 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 control two (2) plastic bags containing
Methamphetamine Hydrochloride (SHABU) weighing more or less two (2)
kilos and one (1) small plastic bag containing Methamphetamine
Hydrocloride weighing more or less fifteen (15) grams, which is a regulated
drug, without any authority whatsoever.
Criminal Case No. 96-513[2]
That on or about the 21st day of September 1996, 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 control twenty (20) pieces of live .22 cal.
ammunitions, without first having obtained a license or permit to possess or
carry the same.
Accused-appellant pleaded “not guilty” on arraignment. The two cases were
then jointly tried.

The prosecution presented three (3) witnesses, all members of the police
force of Angeles City. Their testimonies can be synthesized as follows:

On September 21, 1996, at around 10:00 in the evening, SPO2 Mario Nulud
and PO2 Emmeraldo Nunag received a report from their confidential
informant that accused-appellant was about to deliver drugs that night at
the Thunder Inn Hotel in Balibago, Angeles City. The informer further
reported that accused-appellant distributes illegal drugs in different karaoke
bars in Angeles City. On the basis of this lead, the PNP Chief of Angeles City,
Col. Neopito Gutierrez, immediately formed a team of operatives composed
of Major Bernardino, Insp. Tullao, Insp. Emmanuel Nunag, P02 Emmeraldo
Nunag, SP01 Fernando Go, and some civilian assets, with SPO2 Mario Nulud,
as team investigator. The group of SPO2 Nulud, PO2 Nunag and the civilian
informer positioned themselves across McArthur Highway near Bali Hai
Restaurant, fronting Thunder Inn Hotel. The other group acted as their back
up.

At around 11:45 in the evening, their informer pointed to a car driven by

accused-appellant which just arrived and parked near the entrance of the
Thunder Inn Hotel. After accused-appellant alighted from the car carrying a
sealed Zest-O juice box, SPO2 Nulud and PO2 Nunag hurriedly accosted him
and introduced themselves as police officers. As accused-appellant pulled
out his wallet, a small transparent plastic bag with a crystalline substance
protruded from his right back pocket. Forthwith, SPO2 Nulud subjected him
to a body search which yielded twenty (20) pieces of live .22 caliber firearm
bullets from his left back pocket. When SPO2 Nunag peeked into the
contents of the Zest-O box, he saw that it contained a crystalline substance.
SPO2 Nulud instantly confiscated the small transparent plastic bag, the Zest-
O juice box, the twenty (20) pieces of .22 caliber firearm bullets and the car
used by accused-appellant. Afterwards, SPO2 Nulud and the other police
operatives who arrived at the scene brought the confiscated items to the
office of Col. Guttierez at the PNP Headquarters in Camp Pepito, Angeles
City.[3]

When Col. Gutierrez opened the sealed Zest-O juice box, he found 2 big
plastic bags containing crystalline substances. The initial field test conducted
by SPO2 Danilo Cruz at the PNP Headquarters revealed that the siezed items
contained shabu.[4] Thereafter, SPO2 Nulud together with accused-appellant
brought these items for further laboratory examination to the Crime
Laboratory at Camp Olivas, San Fernando, Pampanga. After due testing,
forensic chemist S/Insp. Daisy Babor concluded that the crystalline
substances yielded positive results for shabu. The small plastic bag weighed
13.815 grams while the two big plastic bags weighed 1.942 kilograms of
shabu.[5]

Accused-appellant vehemently denied the accusation against him and

narrated a different version of the incident.

Accused-appellant alleged that on the night in question, he was driving the

car of his wife to follow her and his son to Manila. He felt sleepy, so he
decided to take the old route along McArthur Highway. He stopped in front of
a small store near Thunder Inn Hotel in Balibago, Angeles City to buy
cigarettes and candies. While at the store, he noticed a man approach and
examine the inside of his car. When he called the attention of the onlooker,
the man immediately pulled out a .45 caliber gun and made him face his car
with raised hands. The man later on identified himself as a policeman.
During the course of the arrest, the policeman took out his wallet and
instructed him to open his car. He refused, so the policeman took his car
keys and proceeded to search his car. At this time, the police officer’s
companions arrived at the scene in two cars. PO2 Nulud, who just arrived at
the scene, pulled him away from his car in a nearby bank, while the others
searched his car.

Thereafter, he was brought to the Salakot Police Station and was held inside
a bathroom for about fifteen minutes until Col. Guttierez arrived, who
ordered his men to call the media. In the presence of reporters, Col.
Guttierez opened the box and accused-appellant was made to hold the box
while pictures were being taken.[6]

Wilfredo Lagman corroborated the story of the accused-appellant in its

material points. He testified that he witnessed the incident while he was
conducting a routine security check around the premises of the Guess
Building, near Thunder Inn Hotel. [7]

On September 15, 1998 the Regional Trial Court of Angeles City, Branch 59,
rendered a decision,[8] the dispositive portion of which reads:
WHEREFORE, the foregoing considered, judgement is hereby rendered as
follows:

1. In Criminal Case No. 96-513 for Illegal Possession of Ammunitions,

the accused is hereby acquitted of the crime charged for
insufficiency of evidence.

2. In Criminal Case No. 96-507 for Illegal Possession of 1,955.815

grams of shabu, accused Binad Sy Chua is found GUILTY beyond
reasonable doubt of the crime charge and is hereby sentenced to
suffer the penalty of reclusion perpetua and to pay a fine of One
Million (P1,000,000.00) Pesos.

SO ORDERED.[9]
Hence, the instant appeal where accused-appellant raised the following
errors:
THE TRIAL COURT ERRED GRAVELY IN ITS FOLLOWING FINDINGS:

A. THE ARREST OF ACCUSED-APPELLANT BINAD SY CHUA WAS

LAWFUL;

B. THE SEARCH OF HIS PERSON AND THE SUBSEQUENT

CONFISCATION OF SHABU ALLEGEDLY FOUND ON HIM WERE
CONDUCTED IN A LAWFUL AND VALID MANNER;

C. THE PROSECUTION EVIDENCE SUPPORTING THE CRIME CHARGED

IS SUFICIENT TO PROVE THE GUILT OF THE ACCUSED-APPELLANT
BEYOND REAONABLE DOUBT.[10]

Accused-appellant maintains that the warrantless arrest and search made by

the police operatives was unlawful; that in the light of the testimony of SPO2
Nulud that prior to his arrest he has been under surveillance for two years,
there was therefore no compelling reason for the haste within which the
arresting officers sought to arrest and search him without a warrant; that
the police officers had sufficient information about him and could have easily
arrested him. Accused-appellant further argues that since his arrest was null
an void, the drugs that were seized should likewise be inadmissible in
evidence since they were obtained in violation of his constitutional rights
against unreasonable search and seizures and arrest.

Accused-appellant’s argument is impressed with merit.

Although the trial court’s evaluation of the credibility of witnesses and their
testimonies is entitled to great respect and will not be disturbed on appeal,
however, this rule is not a hard and fast one.
It is a time-honored rule that the assessment of the trial court with regard to
the credibility of witnesses deserves the utmost respect, if not finality, for
the reason that the trial judge has the prerogative, denied to appellate
judges, of observing the demeanor of the declarants in the course of their
testimonies. The only exception is if there is a showing that the trial judge
overlooked, misunderstood, or misapplied some fact or circumstance of
weight and substance that would have affected the case.[11]
In the case at bar, there appears on record some facts of weight and
substance that have been overlooked, misapprehended, or misapplied by the
trial court which casts doubt on the guilt of accused-appellant. An appeal in
a criminal case opens the whole case for review and this includes the review
of the penalty and indemnity imposed by the trial court. [12] We are clothed
with ample authority to review matters, even those not raised on appeal, if
we find that their consideration is necessary in arriving at a just disposition
of the case. Every circumstance in favor of the accused shall be considered.
[13]
This is in keeping with the constitutional mandate that every accused
shall be presumed innocent unless his guilt is proven beyond reasonable
doubt.

First, with respect to the warrantless arrest and consequent search and
seizure made upon accused-appellant, the court a quo made the following
findings:
Accused was searched and arrested while in possession of regulated drugs
(shabu). A crime was actually being committed by the accused and he was
caught in flagrante delicto. Thus, the search made upon his personal effects
x x x allow a warrantless search incident to a lawful arrest. x x x x

While it is true that the police officers were not armed with a search warrant
when the search was made over the personal affects (sic) of the 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.

x x x           x x x            x x x

In the present case, the police received information that the accused will
distribute illegal drugs that evening at the Thunder Inn Hotel and its
vicinities. The police officer had to act quickly and there was no more time to
secure a search warrant. The search is valid being akin to a “stop and frisk”.
[14]

A thorough review of the evidence on record belies the findings and

conclusion of the trial court. It confused the two different concepts of a
search incidental to a lawful arrest (in flagrante delicto) and of a “stop-and-
frisk.”

In Malacat v. Court of Appeals,[15] we distinguished the concepts of a “stop-

and-frisk” and of a search incidental to a lawful arrest, to wit:
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. In this
instance, the law requires that there first be 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.

x x x            x x x           x x x

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.
Other notable points of Terry are that while probable cause is not required to
conduct a “stop-and-frisk,” it nevertheless holds that mere suspicion or a
hunch will not validate a “stop-and-frisk”. A genuine reason must
exist, in light of the police officer’s experience and surrounding
conditions, to warrant the belief that the person detained has
weapons concealed about him. 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. [16]
(Emphasis ours)
In the case at bar, neither the in flagrante delicto nor the “stop and frisk”
principles is applicable to justify the warrantless arrest and consequent
search and seizure made by the police operatives on accused-appellant.

In in flagrante delicto arrests, the accused is apprehended at the very

moment he is committing or attempting to commit or has just committed an
offense in the presence of the arresting officer. Emphasis should be laid on
the fact that the law requires that the search be incidental to a lawful arrest.
Therefore it is beyond cavil that a lawful arrest must precede the search of a
person and his belongings.[17] Accordingly, for this exception to apply two
elements 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. [18]

We find the two aforementioned elements lacking in the case at bar. The
record reveals that when accused-appellant arrived at the vicinity of Thunder
Inn Hotel, he merely parked his car along the McArthur Highway, alighted
from it and casually proceeded towards the entrance of the Hotel clutching a
sealed Zest-O juice box. Accused-appellant did not act in a suspicious
manner. For all intents and purposes, there was no overt manifestation that
accused-appellant has just committed, is actually committing, or is
attempting to commit a crime.

However, notwithstanding the absence of any overt act strongly manifesting

a violation of the law, the group of SPO2 Nulud “hurriedly accosted” [19]
accused-appellant and later on “introduced themselves as police officers.” [20]
Accused-appellant was arrested before the alleged drop-off of shabu was
done. Probable cause in this case was more imagined than real. Thus, there
could have been no in flagrante delicto arrest preceding the search, in light
of the lack of an overt physical act on the part of accused-appellant that he
had committed a crime, was committing a crime or was going to commit a
crime. As applied to in flagrante delicto arrests, it has been held that
“reliable information” alone, absent any overt act indicative of a felonious
enterprise in the presence and within the view of the arresting officers, is not
sufficient to constitute probable cause that would justify an in flagrante
delicto arrest.[21] Hence, in People v. Aminudin,[22] we ruled 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” (Emphasis supplied).

The reliance of the prosecution in People v. Tangliben[23] to justify the

police’s actions is misplaced. In the said case, based on the information
supplied by informers, police officers conducted a surveillance at the Victory
Liner Terminal compound in San Fernando, Pampanga against persons who
may commit misdemeanors and also on those who may be engaged in the
traffic of dangerous drugs. At 9:30 in the evening, the policemen noticed a
person carrying a red travelling bag who was acting suspiciously. They
confronted him and requested him to open his bag but he refused. He
acceded later on when the policemen identified themselves. Inside the bag
were marijuana leaves wrapped in a plastic wrapper. The police officers
only knew of the activities of Tangliben on the night of his arrest.
In the instant case, the apprehending policemen already had prior
knowledge from the very same informant of accused-appellant’s activities.
No less than SPO2 Mario Nulud, the team leader of the arresting operatives,
admitted that their informant has been telling them about the activities of
accused-appellant for two years prior to his actual arrest on September 21,
1996. An excerpt of the testimony of SPO2 Mario Nulud reveals the illegality
of the arrest of accused-appellant as follows:
Q. Did the civilian informer of yours mentioned to you the name of this
chinese drug pusher?
A. He is mentioning the name of Binad or Jojo Chua.
 
Q. And he had been mentioning these names to you even before
September 21, 1996?
A. Yes, sir.
 
Q. How long did this civilian informant have been telling you about the
activities of this chinese drug pusher reckoning in relation to
September 21, 1996?   
A. That was about two years already.
 
Q. Nothwithstanding his two years personal knowledge which you
gained from the civilian informant that this chinese drug pusher have
been engaged pushing drugs here in Angeles City, you did not think
of applying for a search warrant for this chinese drug pusher?
A No, sir.
   
  x x x                                        x x x                                        x x
x
   
Q. When you accosted this Binad Chua, he was casually walking along
the road near the Thunder Inn Hotel, is that right?
A. He was pinpointed by the civilian informer that he is the chinese
drug pusher that will deliver to him also.
 
Q. My question Mr. Witness, is this Jojo Chua or Binad Chua the
accused in this case he alighted with a Corolla car with plate number
999, I think, he just alighted when you saw him?
A. Yes, sir.
 
Q. From the car when he alighted, he casually walked towards near the
entrance of the Thunder Inn Hotel?   
A. He was about to proceed towards Thunder Inn Hotel but he was
pinpointed already by the civilian informer.
 
Q. But he was just walking towards the entrance of the Thunder Inn
Hotel?
A. Yes, sir, he is about to enter Thunder Inn Hotel.
   
  x x x                                        x x x                                        x x
x
   
Q. While he was walking, then you and PO2 Nunag pounced on him as
 you used pounced on him in your affidavit?
A. Yes, sir.
   
  x x x                                        x x x                                        x x
x
   
Q. And you pounced on Jojo Chua before you saw that alleged small
plastic bag, is that correct?
A. Yes, sir.
 
Q. And after that you also confiscated this Zesto juice box?
A. Yes, sir.
   
  x x x                                        x x x                                        x x
x
   
Q. But would you agree with me that not all crystalline substance is
shabu?
A. No, that is shabu and it is been a long time that we have been tailing
the accused that he is really a drug pusher.
 
Q. So you have been tailing this accused for quite a long time that you
are very sure that what was brought by him was shabu?
A. Yes, sir.[24]
The police operatives cannot feign ignorance of the alleged illegal activities
of accused-appellant. Considering that the identity, address and activities of
the suspected culprit was already ascertained two years previous to the
actual arrest, there was indeed no reason why the police officers could not
have obtained a judicial warrant before arresting accused-appellant and
searching his person. Whatever information their civilian asset relayed to
them hours before accused-appellant’s arrest was not a product of an “on-
the-spot” tip which may excuse them from obtaining a warrant of arrest.
Accordingly, the arresting team’s contention that their arrest of accused-
appellant was a product of an “on-the-spot” tip is untenable.

In the same vein, there could be no valid “stop-and-frisk” in this case. A

stop-and-frisk was defined as the act of a police officer to stop a citizen on
the street, interrogate him, and pat him for weapon(s)[25] or contraband. The
police officer should properly introduce himself and make initial inquiries,
approach and restrain a person who manifests unusual and suspicious
conduct, in order to check the latter’s outer clothing for possibly concealed
weapons.[26] The apprehending police officer must have a genuine reason, in
accordance with the police officer’s experience and the surrounding
conditions, to warrant the belief that the person to be held has weapons (or
contraband) concealed about him.[27] It should therefore be emphasized that
a search and seizure should precede the arrest for this principle to apply. [28]

This principle of “stop-and-frisk” search was invoked by the Court in Manalili

v. Court of Appeals.[29] In said case, the policemen chanced upon the
accused who had reddish eyes, walking in a swaying manner, and who
appeared to be high on drugs. Thus, we upheld the validity of the search as
akin to a “stop-and-frisk.” In People v. Solayao,[30] we also found justifiable
reason to “stop-and-frisk” the accused after considering the following
circumstances: the drunken actuations of the accused and his companions,
the fact that his companions fled when they saw the policemen, and the fact
that the peace officers were precisely on an intelligence mission to verify
reports that armed persons where roaming the vicinity.

The foregoing circumstances do not obtain in the case at bar. There was no
valid “stop-and-frisk” in the case of accused-appellant. To reiterate,
accused-appellant was first arrested before the search and seizure of the
alleged illegal items found in his possession. The apprehending police
operative failed to make any initial inquiry into accused-appellant’s business
in the vicinity or the contents of the Zest-O juice box he was carrying. The
apprehending police officers only introduced themselves when they already
had custody of accused-appellant. Besides, at the time of his arrest,
accused-appellant did not exhibit manifest unusual and suspicious conduct
reasonable enough to dispense with the procedure outlined by jurisprudence
and the law. There was, therefore, no genuine reasonable ground for the
immediacy of accused-appellant’s arrest.

Obviously, the acts of the police operatives wholly depended on the

information given to them by their confidential informant. Accordingly,
before and during that time of the arrest, the arresting officers had no
personal knowledge that accused-appellant had just committed, was
committing, or was about to commit a crime.

At any rate, even if the fact of delivery of the illegal drugs actually occurred,
accused-appellant’s warrantless arrest and consequent search would still not
be deemed a valid “stop-and frisk”. For a valid “stop-and-frisk” the search
and seizure must precede the arrest, which is not so in this case. Besides, as
we have earlier emphasized, the information about the illegal activities of
accused-appellant was not unknown to the apprehending officers. Hence, the
search and seizure of the prohibited drugs cannot be deemed as a valid
“stop-and-frisk”.

Neither can there be valid seizure in plain view on the basis of the seized
items found in accused-appellant’s possession. First, there was no valid
intrusion. Second, the evidence, i.e., the plastic bags found in the Zest-O
juice box which contained crystalline substances later on identified as
methamphetamine hydrochloride (shabu) and the 20 rounds of .22 caliber
ammunition, were not inadvertently discovered. The police officers first
arrested accused-appellant and intentionally searched his person and peeked
into the sealed Zest-O juice box before they were able to see and later on
ascertain that the crystalline substance was shabu. There was no clear
showing that the sealed Zest-O juice box accused-appellant carried
contained prohibited drugs. Neither were the small plastic bags which
allegedly contained crystalline substance and the 20 rounds of .22 caliber
ammunition visible. These prohibited substances were not in plain view of
the arresting officers; hence, inadmissible for being the fruits of the
poisonous tree.

In like manner, the search cannot be categorized as a search of a moving

vehicle, a consented warrantless search, or a customs search. It cannot even
fall under exigent and emergency circumstances, for the evidence at hand is
bereft of any such showing.

All told, the absence of ill-motive on the part of the arresting team cannot
simply validate, much more cure, the illegality of the arrest and consequent
warrantless search of accused-appellant. Neither can the presumption of
regularity of performance of function be invoked by an officer in aid of the
process when he undertakes to justify an encroachment of rights secured by
the Constitution.[31] In People v. Nubla,[32] we clearly stated that:
The presumption of regularity in the performance of official duty cannot be
used as basis for affirming accused-appellant’s conviction because, first, the
presumption is precisely just that – a mere presumption. Once challenged by
evidence, as in this case, xxx [it] cannot be regarded as binding truth.
Second, the presumption of regularity in the performance of official functions
cannot preponderate over the presumption of innocence that prevails if not
overthrown by proof beyond reasonable doubt.
Furthermore, we entertain doubts whether the items allegedly seized from
accused-appellant were the very same items presented at the trial of this
case. The record shows that the initial field test where the items seized were
identified as shabu, was only conducted at the PNP headquarters of Angeles
City.[33] The items were therefore not marked at the place where they were
taken. In People v. Casimiro,[34] we struck down with disbelief the reliability
of the identity of the confiscated items since they were not marked at the
place where they were seized, thus:
The narcotics field test, which initially identified the seized item as
marijuana, was likewise not conducted at the scene of the crime, but only at
the narcotics office. There is thus reasonable doubt as to whether the item
allegedly seized from accused-appellant is the same brick of marijuana
marked by the policemen in their headquarters and given by them to the
crime laboratory.
The government’s drive against illegal drugs needs the support of every
citizen. But it should not undermine the fundamental rights of every citizen
as enshrined in the Constitution. The constitutional guarantee against
warrantless arrests and unreasonable searches and seizures cannot be so
carelessly disregarded as overzealous police officers are sometimes wont to
do. Fealty to the constitution and the rights it guarantees should be
paramount in their minds, otherwise their good intentions will remain as
such simply because they have blundered. The criminal goes free, if he
must, but it is the law that sets him free. Nothing can destroy a government
more quickly than its failure to observe its own laws, or worse, its disregard
of the charter of its own existence.[35]

WHEREFORE, in view of the foregoing, the decision of the Regional Trial

Court of Angeles City, Branch 59, in Criminal Cases Nos. 96-507 and 96-
513, convicting accused-appellant Binad Sy Chua of violation of Section 16,
Article III, Republic Act No. 6425 and sentencing him to suffer the penalty of
reclusion perpetua and to pay a fine of P1,000,000.00, is REVERSED and
SET ASIDE. Accused-appellant Binad Sy Chua is ACQUITTED on the
ground of reasonable doubt. Consequently, he is ordered forthwith released
from custody, unless he is being lawfully held for another crime.

SO ORDERED.
Davide, Jr., C.J., (Chairman), Vitug, Carpio, and Azcuna. JJ., concur.

[1]
Records, Volume 1, p. 1.

[2]
Ibid., p. 12.

[3]
TSN, January 7, 1998, pp. 4-10; TSN, April 21, 1998, pp. 5-9.

[4]
TSN, April 21, 1998, pp. 9-10.

[5]
Records, Vol. 2, p. 306.

[6]
TSN, July 2, 1998, pp. 3-8.

[7]
TSN, August 5, 1998, pp. 5-19.

[8]
Penned by Judge Eliezer R. De Los Santos now Associate Justice of the
Court of Appeals.

[9]
Rollo, p. 26.

[10]
Ibid., pp. 40-41.

[11]
People v. Alvarado, G.R. No. 145730, March 19, 2002, citing People v. De
Los Santos, 355 SCRA 301 (2001); People v. Osing, 349 SCRA 310 (2001).

[12]
People v. Leones, G.R. Nos. 128514 & 143856-61, October 3, 2001.

[13]
People v. Manambit, 271 SCRA 344, 385-386 (1997), citing Heirs of
Crisanta Y. Gabriel-Almoradie v. CA, 229 SCRA 15 (1994) and People v.
Villagracia, 226 SCRA 374, 381(1993).

[14]
Rollo, pp. 470, 473-474; RTC Decision, pp. 7, 10-11.

[15]
283 SCRA 159 (1997).

[16]
Ibid, pp. 175-177.

[17]
People v. Aruta, 288 SCRA 626, 643 (1998).

[18]
Concurring Opinion of Justice Artemio V. Panganiban in People v. Doria,
301 SCRA 668, 720 (1999).

[19]
TSN, January 7, 1998, p. 8.

[20]
Ibid.

[21]
People v. Molina, 352 SCRA 174, 183 (2001).

[22]
163 SCRA 402, 409-410(1988).
[23]
184 SCRA 220, 221-222 (1990).

[24]
TSN, January 27, 1998, pp. 8-13.

[25]
Manalili v. CA, 280 SCRA 400, 411 (1997).

[26]
Concurring Opinion of Justice Artemio Panganiban in People v. Doria, 301
SCRA 668, 729 (1999).

[27]
Malacat v. CA, supra, p. 177.

[28]
Posadas v. CA, 188 SCRA 288, 292 (1990).

[29]
280 SCRA 400 (1997).

[30]
262 SCRA 255 (1996).

[31]
People v. Salanguit, 356 SCRA 683, 702 (2001), citing Nolasco v. Paño,
139 SCRA 152 (1985).

[32]
G.R. No. 129376, May 29, 2002, citing People v. Ruiz, G.R. Nos. 135679
and 137375, October 10, 2001.

[33]
TSN, January 7, 1998, pp. 10-12.

[34]
G.R. No. 146277, June 20, 2002.

[35]
People v. Sagaysay, 308 SCRA 432, 454 (1999).

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347 Phil. 462

EN BANC

[ G.R. No. 123595, December 12, 1997 ]

SAMMY MALACAT Y MANDAR, PETITIONER, VS. COURT OF APPEALS,

AND PEOPLE OF THE PHILIPPINES, RESPONDENTS.
DECISION

DAVIDE, JR., J.:

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:
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
oficio, 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 G. 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]heir 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 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 G. 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 Ordnance 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 “[f]ound 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]

[22]
In his Appellant’s Brief 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 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
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.
(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.

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, here 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:
Q    And what were they doing?
A     They were merely standing.

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.

Costs de oficio.
SO ORDERED.

Narvasa, C.J., Regalado, Romero, Bellosillo, Melo, Puno, Vitug, Kapunan,

Mendoza, Francisco, and Martinez, JJ., concur.
Panganiban, J., please see separate opinion.

[1]
Original Record (OR), 1.

[2]
Entitled Codifying the Laws on Illegal/Unlawful Possession, Manufacture,
Dealing in, Acquisition or Disposition, of Firearms, Ammunition or Explosives
or Instruments used in the Manufacture of Firearms, Ammunition or
Explosives; and Imposing Stiffer Penalties for Certain Violations thereof and
for Relevant Purposes.

[3]
OR, 9.

[4]
The affidavit of arrest, booking sheet and letter-referral to the prosecutor,
respectively.

[5]
OR, 21.

[6]
Transcript of Stenographic Notes (TSN), 14 April 1993, 12.
[7]
TSN, 14 April 1993, 13.

[8]
TSN, 14 April 1993, 14.

[9]
Id., 15-21.

[10]
Spelled as Suquila in the Affidavit of Arrest; Exhibit A; Rollo, CA-G.R. CR
No. 15988 [CA Rollo] 7.

[11]
TSN 14 April 1993, 3-9.

[12]
TSN, 14 April 1993, 9.

[13]
TSN, 27 October 1992, 2-5.

[14]
TSN, 11 June 1993, 2-5.

[15] [1990]
Citing Posadas v. Court of Appeals, 188 SCRA 288 .

[16]
Citing 1 Joaquin G. Bernas, THE CONSTITUTION OF THE REPUBLIC OF
THE PHILIPPINES, A COMMENTARY, 124 (1987 ed.) [hereinafter 1 Bernas].

[17]
Citing Schmerber v. California, 384 U.S. 757; 86 S. CT. 1826; 16 L: Ed.
2d. 908 (1966).

[18]
Citing Isagani A. Cruz, CONSTITUTIONAL LAW 141 (1987 ed.).

[19]
OR, 196-200; Annex “A” [should be “E”] of Petition, Rollo, 91-95. Per
Judge Cesar Mindaro.

[20]
OR, 208.

[21]
CA Rollo, 37.

[22]
Id., 49 et seq.

[23] [1992]
210 SCRA 174 .

[24]
Id., 84-100.

[25]
Annex “A” of the Petition, Rollo, 34-41. Per Garcia, C., J., ponente, with
Labitoria, E., and Aliño-Hormachuelos, P., JJ., concurring.

[26]
Supra note 23.

[27]
Said Section provides:

SEC. 9. Jurisdiction. -- The Court of Appeals shall exercise:

xxx

(3)        Exclusive appellate jurisdiction over all final judgments, decisions,

resolutions, orders, or awards of Regional Trial Courts and quasi-judicial
agencies, instrumentalities, boards, or commission, except those falling
within the appellate jurisdiction of the Supreme Court in accordance with the
Constitution, the provisions of this Act, and of subparagraph (1) of the third
paragraph and subparagraph (4) of the fourth paragraph of Section 17 of
the Judiciary Act of 1948.

[28]
The Section pertinently reads:

SEC. 17. Jurisdiction of the Supreme Court. – x x x

The Supreme Court shall have exclusive jurisdiction to review, revise,

reverse, modify or affirm on appeal, as the law or rules of court may
provide, final judgments and decrees of inferior courts as herein provided, in
–

(1)        All criminal cases involving offenses for which the penalty imposed
is death or life imprisonment; and those involving other offenses which,
although not so punished, arose out of the same occurrence or which may
have been committed by the accused on the same occasion, as that giving
rise to the mere serious offense, regardless of whether the accused are
charged as principals, accomplices or accessories, or whether they have
been tried jointly or separately;

xxx

[29]
The Section relevantly reads:

SEC. 5. The Supreme Court shall have the following powers:

xxx

(2)        Review, revise, reverse, modify, or affirm on appeal or certiorari as

the law or the Rules of Court may provide, final judgments and orders of the
lower courts in:

xxx

(d) All criminal cases in which the penalty imposed is reclusion perpetua or
higher….

[30]
The Section provides:

SEC. 3. How appeal taken. –

xxx

The appeal to the Supreme Court in cases where the penalty imposed is life
imprisonment, or where a lesser penalty is imposed but involving offenses
committed on the same occasion or arising out of the same occurrence that
give rise to the more serious offense for which the penalty of death or life
imprisonment is imposed. …
[31]
Art. III, Section 2, Constitution.

[32]
See 1 Bernas 86 (1987).

[33] [1996]
Mustang Lumber Inc. v. Court of Appeals, 257 SCRA 430, 450 .

[34] [1909]
Moreno v. Ago Chi, 12 Phil. 439 ; Rule 126, Section 12, Rules of
Court.

[35] [1968]
Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L.Ed.2d 889 .

[36] [1964]
See Rex D. Davis, Federal Searches and Seizures 96-98, 120 .

[37] [1991]
People v. Malmstedt, 198 SCRA 401, 422 per Narvasa, C.J.,
concurring and dissenting.

[38]
1 Bernas 105.

[39]
Terry, at 911. In fact, the Court noted that the "sole justification" for a
stop-and-frisk was the "protection of the police officer and others nearby;"
while the scope of the search conducted in the case was limited to patting
down the outer clothing of petitioner and his companions, the police officer
did not place his hands in their pockets nor under the outer surface of their
garments until he had felt weapons, and then he merely reached for and
removed the guns. This did not constitute a general exploratory search, Id.

See MICHELE G. HERMAN, SEARCH AND SEIZURE CHECKLIST 202 [1994]

(hereinafter Hermann): "Nothing in Terry can be understood to allow a
generalized cursory search for weapons or, indeed, any search whatever for
anything but weapons," quoting from Ybarra v. Illinois, 444 U.S. 85, 93-94
[1979]
.

[40]
We have held that probable cause means a fair probability that
contraband or evidence of a crime will be found, *** and the level of
suspicion required for a Terry stop is obviously less demanding than that for
probable cause, in Hermann, at 187, quoting from United States v. Sokolow,
490 U.S. 1, 7 [1989].

Thus, it may be said that a brief on-the-street seizure does not require as
much evidence of probable cause as one which involves taking the individual
to the station, as the former is relatively short, less conspicuous, less
humiliating, in 3 Wayne R. LaFave, Search and Seizure: A Treatise on the
Fourth Amendment §9.1(d), at 342 [2nd ed. 1987] (underscoring supplied).

It is necessary to determine if "stop and frisk" may be distinguished from

arrest and search, knowing that the justification of stopping and frisking is
less than the probable cause to arrest and search, in 1 Joseph A. Varon,
Searches, Seizures and Immunities 81 [2nd ed. 1974] (hereinafter 1 Varon)
(underscoring supplied).

[41]
See 1 Varon, at 84.
[42]
TSN, 14 April 1993, 19-20.

[43]
RTC Decision, 2; CA Rollo, 28.

SEPARATE OPINION

PANGANIBAN, J.:

I agree with the persuasive ponencia of Mr. Justice Hilario G. Davide, Jr.,
that:

1.  the search conducted on petitioner (a) was not incidental to a lawful
arrest and (b) did not constitute a valid stop-and-frisk; thus, the grenade
found in his person cannot be admitted as evidence against him; and

2.  the Court of Appeals had no jurisdiction to entertain the appeal from the
trial court's decision.

I wish, however, to correlate the present case with four relevant decisions I
authored for the Court: Manalili vs. Court of Appeals, [1] People vs. Encinada,
[2]
People vs. Lacerna[3] and People vs. Cuizon,[4] all of which were
promulgated without any dissenting view. This correlation may be of benefit
to the bench, the bar and, particularly, to law enforcement officers. Let me
first present a background on each.

Manalili Involved a

Valid Stop-and-Frisk

In Manalili, anti-narcotics policemen conducted a surveillance in response to

information that drug addicts were roaming the area fronting the city
cemetery of Kalookan, and chance upon Manalili who was observed to have
reddish eyes and to be walking in a wobbly manner. Because his appearance
was characteristic of a person "high on drugs," the lawmen approached him,
introduced themselves and inquired as to what was in his hands. At first,
Manalili resisted but the police prevailed and he showed them his wallet. The
anti-narcotics men found inside what they suspected to be crushed
marijuana residue. They took Manalili to their station for further
investigation. A chromatographic test of the wallet contents positively
affirmed the lawmen's suspicions. Manalili was thus charged, tried and
convicted of illegal possession of the prohibited substance. He subsequently
challenged before us the legality of his search and arrest, and the admission
of the marijuana as evidence. He contended that the latter two were
products of the illegal search.

Rejecting his appeal, this Court held that the search was akin to a stop-and-
frisk. The police had sufficient reason to stop Manalili, who "had red eyes
and was wobbling like a drunk x x x [in] a popular hangout of drug addicts,"
in order to investigate if he was actually "high" on drugs. The situation verily
called for a stop-and-frisk.

Lawmen Had Sufficient Opportunity

to Secure Warrant in Encinada

In Encinada, a police officer received late in the afternoon a tip from an

informant that the following morning, appellant would be arriving at the
Surigao port bringing marijuana. Without securing a search warrant
allegedly because courts were already closed for the day, the lawmen
proceeded early next morning to the city wharf. About 8:30 a.m., they saw
the suspect, carrying two plastic baby chairs, disembark and thereafter
board a tricycle. The police followed immediately and ordered the driver to
stop. After introducing themselves, the policemen asked Encinada to alight
and to hand over his luggage for inspection. found between the baby chairs
was a bulky package which was later found to contain marijuana. On these
particulars, he was charged, tried and convicted by the trial court for
violation of Sec. 4, Art. II of RA 6425, holding that Encinada was caught in
flagrante delicto. Hence, the warrantless search following his arrest was
valid, and the marijuana seized was admissible in evidence.

Reversing the trial court, this Court stressed the following: Encinada was not
committing a crime in the presence of the police; the latter did not have
personal knowledge of facts indicating that he just committed an offense;
and raw intelligence information was not a sufficient ground for a warantless
arrest.[5] Furthermore, "[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." [6] Having
known the identity of their suspect the previous day, the law enforcers could
have secured a warrant of arrest even within such limited period (per
Administative Circular No. 13 and Circular No. 19, s. 1987). In emphasizing
the importance of according respect to every person's constitutional rights
against illegal arrests and searches, the Court exhorted:
"Lawmen cannot be allowed to violate every law they are expected to
enforce. [The policeman's] receipt of the intelligence information regarding
the culprit's identity, the particular crime he allegedly committed and his
exact whereabouts underscored the need to secure a warrant for his arrest.
But he failed to do so. Such failure or neglect cannot excuse him from
violating a constitutional right of the appellant." [7]

"x x x That the search disclosed a prohibited substance in appellant's

possession and thus confirmed the police officers' initial information and
suspicion, did not cure its patent illegality. An illegal search cannot be
undertaken and then an arrest effected on the strength of the evidcnce
yielded by the search."[8]
Consent Validated an Otherwise

Illegal Search in Lacerna

In Lacerna meanwhile, a police officer observed that the occupants of a

taxicab bowed their heads and slouched when they passed through the
checkpoint he was manning, making him suspect that something was amiss.
He signaled the driver to stop, then asked permission to search the vehicle.
The occupants consented. Found inside a plastic bag were several blocks
wrapped in newspaper, which were later discovered to contain marijuana.
Lacerna questioned his warrantless arrest and seizure, claiming that they
were violative of his constitutional rights.

The Court, despite declaring that the prior attendant circumstances did not
justify a warrantless search and seizure, ruled that the search was valid, not
because Lacerna was caught in flagrante delicto, but because he freely
consented to the search. Although appellant and his companion were
stopped by the police on mere suspicion -- without probable cause -- that
they were engaged in a felonious enterprise, the Court stressed that their
permission for the search was expressly sought and obtained by the law
enforcers. This consent validated the search, waiver being a generally
recognized exception to the rule against warrantless search.[9] The
marijuana, therefore, was admissible in evidence. "There was no poisonous
tree to speak of."

Mere Suspicion of Criminal Activity

Did Not Justify Search of Cuizon

Lastly, in Cuizon, the NBI, after conducting a surveillance on Cuizon for

about a month, received in the morning a tip from an informant that Cuizon
and his wife were arriving at NAIA that same day, bringing a large quantity
of shabu. A team was immediately organized and sent to the airport to
intercept the suspect. Shortly after noon, the Cuizon spouses arrived. While
at the airport arrival area, Cuizon handed four travelling bags to Pua and Lee
who thereafter boarded a taxicab, while the Cuizons took a different vehicle.
The NBI team members posted at the NAIA parking area, however, failed to
intercept the suspects. The team merely trailed the taxicab which proceeded
to the Manila Peninsula Hotel in Makati. After identifying themselves to the
suspects in their hotel room, the team asked permission to search their bags
in the presence of the hotel's chief security officer. Pua and Lee consented in
writing. Found inside three of the four bags similar to those handed to them
by Cuizon at the airport were plastic packages of white crystaline substances
which, upon later examination, were confirmed to be shabu. Taking with
them the two accused (who, however, did not implicate Cuizon), the NBI
team proceeded to the Cuizon residence where they found a bag allegedly
containing the same subtance. The three were charged and convicted of
illegal transport of the regulated drug. On appeal, only Cuizon challenged the
validity of his warrantless arrest, search and seizure.

Reiterating the doctrine that "where a person is searched without a warrant,

and under circumstances other than those justifying a warrantless arrest x x
x, upon a mere suspicion that he has embarked on some criminal activity,
and/or for the purpose of discovering if indeed a crime has been committed
by him, then the search made of such person as well as his arrest [is]
deemed illegal," [10] this Court declared unlawful the arrest of Cuizon as well
as the incidental search and seizure. The warrantless arrest and search were
not justified by the rules on "in flagrante delicto" or "hot pursuit" for, at the
time of his arrest, Cuizon was inside his home resting with his wife and child.
No offense had just been committed or was actually being committed or
attempted by him in the presence of the lawmen, nor did the latter have
personal knowledge of facts indicating that Cuizon authored an offense that
had just in fact been committed. Consequently, any evidence obtained
during the illegal search, "even if tending to confirm or actually confirming
the initial suspicion, is absolutely inadmissible for any purpose and in any
proceeding, the same being 'the fruit of the poisonous tree.’" [11]

The same would have been true as regards Pua and Lee. But Pua effectively
waived his right against the warantless search when he agreed in writing for
the NBI team to search his luggage. Besides, he failed to challenge the
validity of his arrest and search and the admission of the evidence obtained
thereby. However, the case against Lee, who could not speak English or
Filipino, was remanded for a retrial, because he was effectively denied his
right to counsel; for although he was provided with one, he could not
understand and communicate with him concerning his defense.

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
warantless arrests and searches. Likewise, urgency must attend such arrests
and searches, as where motor vehicles are used and there is great probaility
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.[12]

Instant Case Correlated

with Four cited

Now to the correlation with the case at bar.

(1)          As in Manalili, lawmen were on surveillance in response to

information that a criminal activity could be in the offing at a specified place.
The stark difference, however, is that in Manalili, the reported activity
involved drug use and the lawmen belonged to the anti-narcotics group,
while in the instant case, the police on patrol were ordinary law enforcers on
the lookout for possible bombers. In the former, the law enforcers concerned
may be presumed to possess special knowledge and skill to detect the
physical features exhibited by a current drug user. Thus, when these
specially trained enforcers saw Manalili with reddish eyes and walking in a
wobbly manner characteristic of a person "high" on drugs per their
experience, and in a known hangout of drug users, there was sufficient
genuine reason to stop and frisk the suspect. It is well to emphasize that
under different circumstances, such as where the policemen are not specially
trained, and in common places where people ordinarily converge, the same
features displayed by a person will not normally justify a warrantless arrest
or search on him.
The case before us presents such a situation. The policemen merely
observed that Malacat's eyes were moving very fast. They did not notice any
bulges or packets about the bodies of these men indicating that they might
be hiding explosive 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.

(2)          In relation to the cases of Encinada and Cuizon, at the time of the
arrests of the suspects, none of the actions of Accused Encinada and Cuizon
were beyond normal as to suggest that they were then engaged in felonious
activities. The simple handing over of the baggage by Cuizon to Pua and Lee
was far from being indicative of any illegal activity. Such act by itself does
not, by any stretch of imagination, even appear to be suspicious. Granting
that indeed and offense was committed by Cuizon at the airport, his
subsequent arrest cannot even be justified under the rule on "hot pursuit."
He did not attempt to flee, but was actually able to leave the premises and
reach his house unhampered by the police. There was considerable
interruption between the supposed commission of the crime and his
subsequent arrest in his house where he was already resting.

Moreover, Encinada and Cuizon had been previously identified and subjected
to surveillance. Police informants themselves, presumably reliable, tipped off
their alleged criminal activity. Specifically with respect to Encinada, there
was sufficient time to priorly obtain a warrant for his arrest. It must be
stressed that raw unverified intelligence information alone is not sufficient to
justify a warrantless arrest or search. That is why it is important to bring
one's evidence before a judge who shall independently determine if probable
cause exists for the issuance of the warrant. It is not for the police to make
such determination.

As regards Cuizon, it was, worse, the ineptness of the NBI team dispatched
to intercept him which foiled his arrest and search. In the present case, if it
were true that the arresting officer saw Malacat two days earlier attempting
to detonate a grenade in the same vicinity, again it was the policemen's
ineptitude that frustrated his valid arrest there and then and, further, their
inability to effectively investigate and identify the culprit -- so as to have
obtained a lawful arrest warrant -- that hindered his valid seizure thereafter.

(3)          In Lacerna, true, the occupants of the taxicab bowed their heads
and slouched when they passed through the police checkpoint. Although
such acts could raise suspicions, they did not provide sufficient reason for
the police to stop and investigate them for possible criminal operation; much
less, to conduct an extensive search of their belongings. A checkpoint search
is limited to a roving view within the vehicle. A further search may be validly
effected only if something probably illegal is within his "plain view." In
Lacerna, if not for the passengers' free and express consent, the search
would have been undoubtedly declared illegal. Similarly, the fast-moving
eyes of Malacat, although connoting unusual behavior, was not indicative
that he was armed and dangerous as to justify a search on his person.

Mengote Supports
Present Ponencia

Bolstering the invalidity of the arrest and search of Malacat is People vs.
Mengote,[13] 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, succintly 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?"

"x x x [T]here 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."[14]
In closing, the Court lamented and thus warned:
"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 stomach-ache, 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."[15]
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.

WHEREFORE, I vote to SET ASIDE the assailed decision and to ACQUIT

Petitioner Sammy Malacat y Mandar.

[1]
G.R. No. 113447, October 9, 1997.

[2]
G.R. No. 116720, October 2, 1997.
[3]
G.R. No. 109250, September 5, 1957.

[4]
256 SCRA 325, April 18, 1996.

[5]
People vs. Encinada, supra, pp. 17-18.

[6]
Ibid., pp. 18-19.

[7]
Ibid., pp. 21-22.

[8]
Ibid., p. 24.

[9]
Citing People vs. Fernandez, 239 SCRA 174, December 13, 1994, Aniag,
Jr., vs. Comelec, 237 SCRA 424, October 7, 1994, and other cases.

[10]
People vs. Cuizon, supra, p. 339.

[11]
Ibid.

[12]
Ibid., pp. 346-347.

[13]
210 SCRA 174, June 22, 1992.

[14]
Ibid., p. 179.

[15]
Ibid., pp. 181-182.

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People v. Nuevas, 545 Phil. 356 (G.R. Nos. 133254-55, February 22, 2007)

SECOND DIVISION

[ G.R. NO. 170233, February 22, 2007 ]

 THE PEOPLE OF THE PHILIPPINES, APPELLEE, VS. JESUS NUEVAS Y
GARCIA, REYNALDO DIN Y GONZAGA, AND FERNANDO INOCENCIO Y
ABADEOS, APPELLANTS.

DECISION

TINGA, J.:

Jesus Nuevas y Garcia (Nuevas) was charged[1] before the Regional Trial
Court (RTC) of Olongapo City, Branch 75, with illegal possession of
marijuana in 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.

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 Jesus Nuevas (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]

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) n 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 virture thereof.

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, 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 ½ 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 ½ 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;

4. Consented warrantless search;

5. Customs search;

6. Stop and Frisk; and

7. Exigent and emergency circumstances.[36]

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.
[37]

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.[38]

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 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." [41]

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. [42]

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.[46]

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.
xxxx
Q What, exactly, did he tell you in Waray dialect?
A  "Sir Famir[sic], don't charge me, sir[.] I am planning to go home to
Leyte. I was just earning enough money for my fare, sir."
xxxx
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]
xxxx
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.

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?
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:
x x x 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:
x x x In the final analysis, we in the administration of justice would have no
right to expect ordinary people to be law-abiding if we do not insist on the
full protection of their rights. Some lawmen, prosecutors and judges may
still tend to gloss over an illegal search and seizure as long as the law
enforcers show the alleged evidence of the crime regardless of the methods
by which they were obtained. This kind of attitude condones law-breaking in
the name of law enforcement. Ironically, it only fosters the more rapid
breakdown of our system of justice, and the eventual denigration of society.
While this Court appreciates and encourages the efforts of law enforcers to
uphold the law and to preserve the peace and security of society, we
nevertheless admonish them to act with deliberate care and within the
parameters set by the Constitution and the law. Truly, the end never
justifies the means.[59]
WHEREFORE, the Decision dated 4 April 2002 of the Regional Trial Court of
Olongapo City, Branch 75, in Criminal Case 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.

SO ORDERED.

Quisumbing, (Chairperson), Carpio, Carpio-Morales  and Velasco, Jr., JJ.,

concur.

[1]
The Information against Nuevas reads:

CRIMINAL CASE No. 458-97

That on or about the twenty-seventh (27th) day of September, [sic] 1997, in
the City of Olongapo, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, without being lawfully
authorized, did then and there wil[l]fully, unlawfully and knowingly have in
his person, possession and control[,] marijuana dried leaves/fruiting tops
approximately weighing ONE AND ONE-HALF KILOS (1.5) which are
prohibited drugs.

CONTRARY TO LAW. (Records, p. 2)

[2]
Otherwise known as "The Dangerous Drugs Act."

[3]
The Information against Din and Inocencio reads:
CRIMINAL CASE No. 459-97

That on or about the twenty-seventh (27th) day of September, [sic] 1997, in

the City of Olongapo, Philippines, and within the jurisdiction  of this
Honorable Court, the above-named accused, conspiring and confederating
together and mutually helping one another, without being lawfully
authorized, did then and there wil[l]fully, unlawfully and knowingly have in
their persons, possession and control[,] marijuana dried leaves/fruiting tops
approximately weighing TWO AND ONE-HALF KILOS (2.5) which are
prohibited drugs.

CONTRARY TO LAW. (Records, p. 28)

[4]
Records, pp. 16, 54.

[5]
Id. at 219-226; Penned by Honorable Avelino A. Lazo.

[6]
Id. at 226.

[7]
TSN, 3 February 1998, pp. 3-5; TSN, 21 May 1998, pp. 3-6, 8, 10.

[8]
TSN, 21 May 1998, p. 13.

[9]
  TSN, 21 May 1998, pp. 11-15.

[10]
TSN, 23 June 1998, pp. 2-11.

[11]
TSN, 23 June 1998, pp. 12-14.

[12]
TSN, 5 March 1998, p. 11.

[13]
TSN, 2 April 1998, pp. 3-4.

[14]
Id. at 6.

[15]
Id. at  8.

[16]
Id. at  7-8.

[17]
TSN, 17 November 1998, pp. 4-8.

[18]
TSN, 13 July 1999, pp. 5-14.

[19]
TSN, 24 August 1999, pp. 3-15.

[20]
CA rollo, pp. 79-80.

[21]
Id. at  88.

[22]
Id. at  133.

[23]
The docket numbers of the cases when first elevated to the Court.

[24]
G.R. Nos. 147678-87, 7 July 2004, 433 SCRA 640.

[25]
CA rollo, p. 57.
[26]
Id. at 135-143; Penned by Associate Justice Elvi John S. Asuncion with
the concurrence of Associate Justices Hakim S. Abdulwahid and Aurora
Santiago-Lagman.

[27]
Id. at 142-143.

[28]
Rollo, p. 7.

[29]
Id. at  9-10.

[30]
Id. at 13-14.

[31]
Id. at 13.

[32]
Id. at 15-16; Manifestation and Motion dated 28 March 2006.

[33]
CA rollo, p. 72.

[34]
Id. at  61.

[35]
CONST., Art. III, Secs. 2 and 3 (2), which provides:
SEC. 2.  The right of the people to be secured 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. x x x

(2) Any evidence obtained in violation of x x x the preceding section shall be

inadmissible for any purpose in any proceeding.
[36]
People v. Tudtud, 458 Phil. 752, 771 (2003) citing People v. Bolasa,
378 Phil. 1073, 1078-1079 (1999).

[37]
Caballes v. Court of Appeals, 424 Phil. 263, 278 (2002).

[38]
Rollo, p. 10; CA rollo, p. 72.

[39]
Rule 126, Sec. 13, provides:

SEC. 13. Search incidental to a lawful arrest.-A person lawfully

arrested may be searched for dangerous weapons or anything which
may have been used or constitute proof in the commission of an
offense without a search warrant.

[40]
People v. Tudtud, supra note 36.

[41]
Id.
[42]
People v. Doria,  361 Phil. 595, 634-635 (1999).

[43]
TSN,  21 May 1998, p. 8.

[44]
Id. at 13.

[45]
Caballes v. Court of Appeals, supra note 37 at 285.

Rule 113, Sec. 5(a) likewise states:

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; x x x x.

[46]
Caballes v. Court of Appeals, supra note 37 at 286.

[47]
The plastic bag confiscated from Nuevas containing marijuana.

[48]
TSN, 21 May 1998, pp. 5-6.

[49]
Id. at  8.

[50]
TSN, 2 April 1998, p. 6.

[51]
TSN, 21 May 1998, pp. 12-13.

[52]
TSN, 5 March 1998, p. 11.

[53]
Caballes v. Court of Appeals, supra note 37 at 289 citing People v.
Figueroa, G.R. No. 134056, 6 July 2000, 335 SCRA 249, 263.

[54]
228 Phil. 1 (1986).

[55]
Id. at 17.

[56]
People v. Kimura, G.R. No. 130805, 27 April 2004, 428 SCRA 51,
70.

[57]
People v. Bacla-an, 445 Phil. 729, 748 (2003).

[58 ]
Rollo, pp. 8-9.

[59]
People v. Encinada, 345 Phil. 301, 323 (1997) citing People v.
Cuizon, G.R. No. 109287, 18 April 1996, 256 SCRA 325.
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345 Phil. 632

THIRD DIVISION

[ G.R. No. 113447, October 09, 1997 ]

ALAIN MANALILI Y DIZON, PETITIONER, VS. COURT OF APPEALS

AND PEOPLE OF THE PHILIPPINES, RESPONDENTS.
DECISION

PANGANIBAN, J.:

When dealing with a rapidly unfolding and potentially criminal situation in

the city streets where unarguably there is no time to secure an arrest or a
search warrant, policemen should employ limited, flexible responses -- like
“stop-and-frisk” -- which are graduated in relation to the amount of
information they possess, the lawmen being ever vigilant to respect and not
to violate or to treat cavalierly the citizen’s constitutional rights against
unreasonable arrest, search and seizure.

The Case

This rule is reiterated as we resolve this petition for review on certiorari

under Rule 45 of the Rules of Court, seeking the reversal of the Decision of
the Court of Appeals dated April 19, 1993 and its Resolution dated January
20, 1994 in CA G.R. CR No. 07266, entitled “People of the Philippines vs.
Alain Manalili y Dizon.”

In an Information dated April 11, 1988, [1] Petitioner Alain Manalili y Dizon
was charged by Assistant Caloocan City Fiscal E. Juan R. Bautista with
violation of Section 8, Article II of Republic Act No. 6425, allegedly
committed as follows:[2]

“That on or about the 11th day of April 1988 in Caloocan City, MM,
Philippines and within the jurisdiction of this Honorable Court, the above-
named accused without any authority of law, did then and there wilfully,
unlawfully and feloniously have in his custody, possession and control
crushed marijuana residue, which is a prohibited drug and knowing the same
to be such.

Contrary to Law.”

Upon his arraignment on April 21, 1988, appellant pleaded “not guilty” to the
charge.[3] With the agreement of the public prosecutor, appellant was
released after filing a P10,000.00 bail bond.[4] After trial in due course, the
Regional Trial Court of Caloocan City, Branch 124, acting as a Special
Criminal Court, rendered on May 19, 1989 a decision[5] convicting appellant
of illegal possession of marijuana residue. The dispositive portion of the
decision reads:[6]

“WHEREFORE, in view of all the foregoing, this Court finds the accused
ALAIN MANALILI Y DIZON guilty beyond reasonable doubt of violation of
Section 8, Article II, of Republic Act No. 6425, as amended (Illegal
Possession of Marijuana residue), and hereby snetences (sic) said accused to
suffer imprisonment of SIX (6) YEARS and ONE (1) DAY; and to pay a fine of
P6,000.00; and to pay the costs.

xxx                                                                       
xxx                                                                               xxx.”

Appellant remained on provisional liberty. [7] Atty. Benjamin Razon, counsel

for the defense, filed a Notice of Appeal[8] dated May 31, 1989. On April 19,
1993, Respondent Court[9] promulgated its assailed Decision, denying the
appeal and affirming the trial court:[10]

“ACCORDINGLY, the decision appealed from dated May 19, 1989 is hereby
AFFIRMED in all respects. Costs against appellant.”

Respondent Court[11] denied reconsideration via its assailed Resolution dated

January 20, 1994, disposing:

“ACCORDINGLY, accused-appellant’s motion for reconsideration is, as is

hereby DENIED.”

The Facts

Version of the Prosecution

The facts, as found by the trial court, are as follows:[12]

“At about 2:10 o’clock in the afternoon of April 11, 1988, policemen from the
Anti-Narcotics Unit of the Kalookan City Police Station were conducting a
surveillance along A. Mabini street, Kalookan City, in front of the Kalookan
City Cemetery. The policemen were Pat. Romeo Espiritu and Pat. Anger
Lumabas and a driver named Arnold Enriquez was driving a Tamaraw vehicle
which was the official car of the Police Station of Kalookan City. The
surveillance was being made because of information that drug addicts were
roaming the area in front of the Kalookan City Cemetery.

Upon reaching the Kalookan City Cemetery, the policemen alighted from
their vehicle. They then chanced upon a male person in front of the
cemetery who appeared high on drugs. The male person was observed to
have reddish eyes and to be walking in a swaying manner. When this male
person tried to avoid the policemen, the latter approached him and
introduced themselves as police officers. The policemen then asked the male
person what he was holding in his hands. The male person tried to resist.
Pat. Romeo Espiritu asked the male person if he could see what said male
person had in his hands. The latter showed the wallet and allowed Pat.
Romeo Espiritu to examine the same. Pat. Espiritu took the wallet and
examined it. He found suspected crushed marijuana residue inside. He kept
the wallet and its marijuana contents.

The male person was then brought to the Anti-Narcotics Unit of the Kalookan
City Police Headquarters and was turned over to Cpl. Wilfredo Tamondong
for investigation. Pat. Espiritu also turned over to Cpl. Tamondong the
confiscated wallet and its suspected marijuana contents. The man turned out
to be the accused ALAIN MANALILI y DIZON.

Upon receipt of the confiscated suspected marijuana residue from Pat.

Espiritu, Cpl. Tamondong wrapped the same with a white sheet of paper on
which he wrote ‘Evidence ‘A’ 4/11/88 Alain Manalili’. The white sheet of
paper was marked as Exhibit ‘E-3’. The residue was originally wrapped in a
smaller sheet of folded paper. (Exhibit ‘E-4’).

Cpl. Tamondong next prepared a referral slip addressed to the NBI Forensic
Chemistry Section requesting a chemical analysis of the subject marijuana
residue (Exhibit ‘D’). Cpl. Tamondong thereafter prepared a Joint Affidavit of
the apprehending policemen (Exhibit ‘A’). Pat. Angel Lumabas handcarried
the referral slip (Exhibit ‘D’) to the National Bureau of Investigation (NBI),
including the subject marijuana residue for chemical analysis. The signature
of Pat. Lumabas appears on the left bottom corner of Exhibit ‘D’.

The Forensic Chemistry Section of the NBI received the aforesaid referral slip
and the subject marijuana residue at 7:40 o’clock in the evening of April 11,
1988 as shown on the stamped portion of Exhibit ‘D’.

It was NBI Aida Pascual who conducted the microscopic and chemical
examinations of the specimen which she identified. (Exhibit ‘E’) [13] Mrs.
Pascual referred to the subject specimen as ‘crushed marijuana leaves’ in
her Certification dated April 11, 1988 (Exhibit ‘F’). [14] These crushed
marijuana leaves gave positive results for marijuana, according to the
Certificate.

Mrs. Pascual also conducted a chromatographic examination of the

specimen. In this examination, she also found that the ‘crushed marijuana
leaves’ gave positive results for marijuana. She then prepared a Final Report
of her examinations (Exhibit ‘G’).

After conducting the examinations, Ms. Pascual placed the specimen in a

white letter-envelope and sealed it. (Exhibit ‘E’). She then wrote
identification notes on this letter-envelope. (Exhibit ‘E-1’).

Pat. Lumabas carried the Certification marked as Exhibit ‘F’ from the NBI
Forensic Chemistry Section to Cpl. Tamondong. Upon receipt thereof, Cpl.
Tamondong prepared a referral slip addressed to the City Fiscal of Kalookan
City. (Exhibit ‘C’)”

On rebuttal, Pat. Espiritu testified that appellant was not riding a tricycle but
was walking in front of the cemetery when he was apprehended. [15]

Version of the Defense

The trial court summarized the testimonies of the defense witnesses as

follows:[16]

“At about 2:00 o’clock in the afternoon of April 11, 1988, the accused ALAIN
MANALILI was aboard a tricycle at A. Mabini street near the Kalookan City
Cemetery on the way to his boarding house. Three policemen ordered the
driver of the tricycle to stop because the tricycle driver and his lone
passenger were under the influence of marijuana. The policemen brought
the accused and the tricycle driver inside the Ford Fiera which the policemen
were riding in. The policemen then bodily searched the accused and the
tricycle driver. At this point, the accused asked the policemen why he was
being searched and the policemen replied that he (accused) was carrying
marijuana. However, nothing was found on the persons of the accused and
the driver. The policemen allowed the tricycle driver to go while they
brought the accused to the police headquarters at Kalookan City where they
said they would again search the accused.

On the way to the police headquarters, the accused saw a neighbor and
signaled the latter to follow him. The neighbor thus followed the accused to
the Kalookan City Police Headquarters. Upon arrival thereat, the accused
was asked to remove his pants in the presence of said neighbor and another
companion. The policemen turned over the pants of the accused over a piece
of bond paper trying to look for marijuana. However, nothing was found,
except for some dirt and dust. This prompted the companion of the neighbor
of the accused to tell the policemen to release the accused. The accused was
led to a cell. The policemen later told the accused that they found marijuana
inside the pockets of his pants.

At about 5:00 o’clock in the afternoon on the same day, the accused was
brought outside the cell and was led to the Ford Fiera. The accused was told
by the policemen to call his parents in order to ‘settle’ the case. The
policemen who led the accused to the Ford Fiera were Pat. Lumabas, Pat.
Espiritu and Cpl. Tamondong. Pat. Lumabas was the policeman who told the
accused to call his parents. The accused did not call his parents and he told
the policemen that his parents did not have any telephone.

At about 5:30 o’clock in the afternoon of the same day, the accused was
brought in the office of an inquest Fiscal. There, the accused told the Fiscal
that no marijuana was found on his person but the Fiscal told the accused
not to say anything. The accused was then brought back to the Kalookan
City Jail.

Loreto Medenilla, the tricycle driver who was allegedly with the accused
when he and the accused were stopped by policemen and then bodily
searched on April 11, 1988, testified. He said that the policemen found
nothing either on his person or on the person of the accused when both were
searched on April 11, 1988.

Roberto Abes, a neighbor of the accused, testified that he followed the

accused at the Kalookan City Police Headquarters on April 11, 1988. He said
that the police searched the accused who was made to take off his pants at
the police headquarters but no marijuana was found on the body of the
accused.”

Appellant, who was recalled to the stand as sur-rebuttal witness, presented

several pictures showing that tricycles were allowed to ply in front of the
Caloocan Cemetery.[17]

The Rulings of the Trial and the Appellate Courts

The trial court convicted petitioner of illegal possession of marijuana residue

largely on the strength of the arresting officers’ testimony. Patrolmen
Espiritu and Lumabas were “neutral and disinterested” witnesses, testifying
only on what transpired during the performance of their duties.
Substantially, they asserted that the appellant was found to be in possession
of a substance which was later identified as crushed marijuana residue.

The trial court disbelieved appellant’s defense that this charge was merely
“trumped up,” because the appellant neither took any legal action against
the allegedly erring policemen nor moved for a reinvestigation before the
city fiscal of Kalookan City.

On appeal, Respondent Court found no proof that the decision of the trial
court was based on speculations, surmises or conjectures. On the alleged
“serious” discrepancies in the testimonies of the arresting officers, the
appellate court ruled that the said inconsistencies were insubstantial to
impair the essential veracity of the narration. It further found petitioner’s
contention -- that he could not be convicted of illegal possession of
marijuana residue -- to be without merit, because the forensic chemist
reported that what she examined were marijuana leaves.

Issues

Petitioner assigns the following errors on the part of Respondent Court:

“I

The Court of Appeals erred in upholding the findings of fact of the trial court.

II

The Court of Appeals erred in upholding the conviction of (the) accused

(and) in ruling that the guilt of the accused had been proved (beyond)
reasonable doubt.

III
The Court of Appeals erred in not ruling that the inconsistencies in the
testimonies of the prosecution witnesses were material and substantial and
not minor.

IV

The Court of Appeals erred in not appreciating the evidence that the accused
was framed for the purpose of extorting money.

The Court of Appeals erred in not acquitting the accused when the evidence
presented is consistent with both innocence and guilt.

VI

The Court of Appeals erred in admitting the evidence of the prosecution

which are inadmissible in evidence.”

Restated more concisely, petitioner questions (1) the admissibility of the

evidence against him, (2) the credibility of prosecution witnesses and the
rejection by the trial and the appellate courts of the defense of extortion,
and (3) the sufficiency of the prosecution evidence to sustain his conviction.

The Court’s Ruling

The petition has no merit.

First Issue: Admissibility of the Evidence Seized During a Stop-and-

Frisk

Petitioner protests the admission of the marijuana leaves found in his

possession, contending that they were products of an illegal search. The
Solicitor General, in his Comment, dated July 5, 1994, which was adopted as
memorandum for respondent, counters that the inadmissibility of the
marijuana leaves was waived because petitioner never raised this issue in
the proceedings below nor did he object to their admissibility in evidence. He
adds that, even assuming arguendo that there was no waiver, the search
was legal because it was incidental to a warrantless arrest under Section 5
(a), Rule 113 of the Rules of Court.

We disagree with petitioner and hold that the search was valid, being akin to
a stop-and-frisk. In the landmark case of Terry vs. Ohio, [18] a stop-and-frisk
was defined as the vernacular designation of the right of a police officer to
stop a citizen on the street, interrogate him, and pat him for weapon(s):

“x x x (W)here a police officer observes an 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
identified 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, and any weapon seized may properly be introduced in evidence
against the person from whom they were taken.”[19]

In allowing such a search, the United States Supreme Court held that the
interest of effective crime prevention and detection allows a police officer to
approach a person, in appropriate circumstances and manner, for purposes
of investigating possible criminal behavior even though there is insufficient
probable cause to make an actual arrest. This was the legitimate
investigative function which Officer McFadden discharged in that case, when
he approached petitioner and his companion whom he observed to have
hovered alternately about a street corner for an extended period of time,
while not waiting for anyone; paused to stare in the same store window
roughly 24 times; and conferred with a third person. It would have been
sloppy police work for an officer of 30 years’ experience to have failed to
investigate this behavior further.

In admitting in evidence two guns seized during the stop-and-frisk, the US

Supreme Court held that what justified the limited search was the more
immediate interest of the police officer in taking steps to assure himself that
the person with whom he was dealing was not armed with a weapon that
could unexpectedly and fatally be used against him.

It did not, however, abandon the rule that the police must, whenever
practicable, obtain advance judicial approval of searches and seizures
through the warrant procedure, excused only by exigent circumstances.

In Philippine jurisprudence, the general rule is that a search and seizure

must be validated by a previously secured judicial warrant; otherwise, such
search and seizure is unconstitutional and subject to challenge. [20] Section 2,
Article III of the 1987 Constitution, gives this guarantee:

“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.”

Any evidence obtained in violation of the mentioned provision is legally

inadmissible in evidence as a “fruit of the poisonous tree,” falling under the
exclusionary rule:

“SEC. 3. x x x

(2)     Any evidence obtained in violation of x x x the preceding section shall

be inadmissible for any purpose in any proceeding.”
This right, however, is not absolute. [21] The recent case of People vs. Lacerna
enumerated five recognized exceptions to the rule against warrantless
search and seizure, viz.: “(1) search incidental to a lawful arrest, (2) search
of moving vehicles, (3) seizure in plain view, (4) customs search, and (5)
waiver by the accused themselves of their right against unreasonable search
and seizure.”[22] In People vs. Encinada,[23] the Court further explained that
“[i]n these cases, the search and seizure may be made only with probable
cause as the essential requirement. Although the term eludes exact
definition, probable cause for a search is, at best, defined as a reasonable
ground of suspicion, supported by circumstances sufficiently strong in
themselves to warrant a cautious man in the 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 item(s),
article(s) or object(s) sought in connection with said offense or subject to
seizure and destruction by law is in the place to be searched.”

Stop-and-frisk has already been adopted as another exception to the general

rule against a search without a warrant. In Posadas vs. Court of Appeals ,[24]
the Court held that there are many instances where a search and seizure
can be effected without necessarily being preceded by an arrest, one of
which is stop-and-frisk. In said case, members of the Integrated National
Police of Davao stopped petitioner, who was carrying a buri bag and acting
suspiciously. They found inside petitioner’s bag one .38-cal. revolver with
two rounds of live ammunition, two live ammunitions for a .22-cal. gun and
a tear gas grenade. In upholding the legality of the search, the Court said
that to require the police officers to search the bag only after they had
obtained a search warrant might prove to be useless, futile and much too
late under the circumstances. In such a situation, it was reasonable for a
police officer to stop a suspicious individual briefly in order to determine his
identity or to maintain the status quo while obtaining more information,
rather than to simply shrug his shoulders and allow a crime to occur.

In the case at hand, Patrolman Espiritu and his companions observed during
their surveillance that appellant had red eyes and was wobbling like a drunk
along the Caloocan City Cemetery, which according to police information was
a popular hangout of drug addicts. From his experience as a member of the
Anti-Narcotics Unit of the Caloocan City Police, such suspicious behavior was
characteristic of drug addicts who were “high.” The policemen therefore had
sufficient reason to stop petitioner to investigate if he was actually high on
drugs. During such investigation, they found marijuana in petitioner’s
possession:[25]

FISCAL RALAR:

Q    And why were you conducting surveillance in front of the Caloocan
Cemetery, Sangandaan, Caloocan City?
A     Because there were some informations that some drug dependents
were roaming around at A. Mabini Street in front of the Caloocan Cemetery,
Caloocan City.
xxx                                                                       
xxx                                                                               xxx

Q    While you were conducting your surveillance, together with Pat. Angel
Lumabas and one Arnold Enriquez, what happened, if any?
A     We chanced upon one male person there in front of the Caloocan
Cemetery then when we called his attention, he tried to avoid us, then
prompting us to approach him and introduce ourselves as police officers in a
polite manner.

xxx                                                                       
xxx                                                                               xxx

Q    Could you describe to us the appearance of that person when you
chanced upon him?
A     That person seems like he is high on drug.

Q    How were you able to say Mr. Witness that that person that you chanced
upon was high on drug?
A     Because his eyes were red and he was walking on a swaying manner.

Q    What was he doing in particular when you chanced upon him?
A     He was roaming around, sir.

Q    You said that he avoided you, what did you do when he avoided you?
A     We approached him and introduced ourselves as police officers in a
polite manner, sir.

Q    How did you introduce yourselves?

A     In a polite manner, sir.

Q    What did you say when you introduced yourselves?

A     We asked him what he was holding in his hands, sir.

Q    And what was the reaction of the person when you asked him what he
was holding in his hands?
A     He tried to resist, sir.

Q    When he tried to resist, what did you do?

A     I requested him if I can see what was he was(sic) holding in his hands.

Q    What was the answer of the person upon your request?
A     He allowed me to examine that something in his hands, sir.

xxx                                                                       
xxx                                                                               xxx

Q    What was he holding?

A     He was holding his wallet and when we opened it, there was a
marijuana (sic) crushed residue.”
Furthermore, we concur with the Solicitor General’s contention that
petitioner effectively waived the inadmissibility of any evidence illegally
obtained when he failed to raise this issue or to object thereto during the
trial. A valid waiver of a right, more particularly of the constitutional right
against unreasonable search, requires the concurrence of the following
requirements: (1) the right to be waived existed; (2) the person waiving it
had knowledge, actual or constructive, thereof; and (3) he or she had an
actual intention to relinquish the right.[26] Otherwise, the Courts will indulge
every reasonable presumption against waiver of fundamental safeguards and
will not deduce acquiescence from the failure to exercise this elementary
right. In the present case, however, petitioner is deemed to have waived
such right for his failure to raise its violation before the trial court. In
petitions under Rule 45, as distinguished from an ordinary appeal of criminal
cases where the whole case is opened for review, the appeal is generally
limited to the errors assigned by petitioner. Issues not raised below cannot
be pleaded for the first time on appeal.[27]

Second Issue: Assessment of Evidence

Petitioner also contends that the two arresting officers’ testimony contained
“polluted, irreconcilable and unexplained” contradictions which did not
support petitioner’s conviction.

We disagree. Time and again, this Court has ruled that the trial court’s
assessment of the credibility of witnesses, particularly when affirmed by the
Court of Appeals as in this case, is accorded great weight and respect, since
it had the opportunity to observe their demeanor and deportment as they
testified before it. Unless substantial facts and circumstances have been
overlooked or misappreciated by the trial court which, if considered, would
materially affect the result of the case, we will not countenance a departure
from this rule.[28]

We concur with Respondent Court’s ruling:

“(e)ven assuming as contended by appellant that there had been some

inconsistencies in the prosecution witnesses’ testimonies, We do not find
them substantial enough to impair the essential veracity of their narration.
In People vs. Avila, it was held that –‘As long as the witnesses concur on the
material points, slight differences in their remembrance of the details, do not
reflect on the essential veracity of their statements.’”

However, we find that, aside from the presumption of regularity in the

performance of duty, the bestowal of full credence on Pat. Espiritu’s
testimony is justified by tangible evidence on record. Despite Pat. Lumabas’
contradictory testimony, that of Espiritu is supported by the Joint Affidavit [29]
signed by both arresting policemen. The question of whether the marijuana
was found inside petitioner’s wallet or inside a plastic bag is immaterial,
considering that petitioner did not deny possession of said substance. Failure
to present the wallet in evidence did not negate that marijuana was found in
petitioner’s possession. This shows that such contradiction is minor, and
does not destroy Espiritu’s credibility.[30]
Third Issue: Sufficiency of Evidence

The elements of illegal possession of marijuana are: (a) the accused is in

possession of an item or object which is identified to be a prohibited drug;
(b) such possession is not authorized by law; and (c) the accused freely and
consciously possessed the said drug.[31]

The substance found in petitioner’s possession was identified by NBI Forensic

Chemist Aida Pascual to be crushed marijuana leaves. Petitioner’s lack of
authority to possess these leaves was established. His awareness thereof
was undeniable, considering that petitioner was high on drugs when stopped
by the policemen and that he resisted when asked to show and identify the
thing he was holding. Such behavior clearly shows that petitioner knew that
he was holding marijuana and that it was prohibited by law.

Furthermore, like the trial and the appellate courts, we have not been given
sufficient grounds to believe the extortion angle in this case. Petitioner did
not file any administrative or criminal case against the arresting officers or
present any evidence, other than his bare claim. His argument that he
feared for his life was lame and unbelievable, considering that he was
released on bail and continued to be on bail as early as April 26, 1988. [32]
Since then, he could have made the charge in relative safety, as he was no
longer in the custody of the police. His defense of frame-up, like alibi, is
viewed by this Court with disfavor, because it is easy to concoct and
fabricate.[33]

The Proper Penalty

The trial and the appellate courts overlooked the Indeterminate Sentence
Law (Act No. 4103, as amended) by sentencing petitioner to a straight
penalty of six years and one day of imprisonment, aside from the imposed
fine of six thousand pesos. This Act requires the imposition of an
indeterminate penalty:

“SECTION 1. Hereafter, in imposing a prison sentence for an offense

punished by the Revised Penal Code, or its amendments, the court shall
sentence the accused to an indeterminate sentence the maximum term of
which shall be that which, in view of the attending circumstances, could be
properly imposed under the rules of the said Code, and the minimum which
shall be within the range of the penalty next lower to that prescribed by the
Code for the offense; and if the offense is punished by any other law, the
court shall sentence the accused to an indeterminate sentence, the
maximum term of which shall not exceed the maximum fixed by said law
and the minimum shall not be less than the minimum term prescribed by the
same. (As amended by Act No. 4225.)

“SEC. 2. This Act shall not apply to persons convicted of offenses punished
with death penalty or life-imprisonment; to those convicted of treason; to
those convicted of misprision of treason, rebellion, sedition or espionage; to
those convicted of piracy; to those who are habitual delinquents; to those
who shall have escaped from confinement or evaded sentence; to those who
having been granted conditional pardon by the Chief Executive shall have
violated the terms thereof; to those whose maximum term of imprisonment
does not exceed one year, not to those already sentenced by final judgment
at the time of approval of this Act, except as provided in Section 5 hereof.”
(Underscoring supplied)

The Dangerous Drugs Law, R.A. 6425, as amended by B.P. 179, imposes the
following penalty for illegal possession of marijuana:

“Sec. 8. x x x x

The penalty of imprisonment ranging from six years and one day to twelve
years and a fine ranging from six thousand to twelve thousand pesos shall
be imposed upon any person who, unless authorized by law, shall possess or
use Indian hemp.”

Prescinding from the foregoing, the Court holds that the proper penalty is an
indeterminate sentence of imprisonment ranging from six years and one day
to twelve years.[34]

WHEREFORE, the assailed Decision and Resolution are hereby AFFIRMED

with MODIFICATION. Petitioner is sentenced to suffer IMPRISONMENT of
SIX (6) YEARS, as minimum, to TWELVE (12) YEARS, as maximum, and
to PAY a FINE of SIX THOUSAND PESOS. Costs against petitioner.
SO ORDERED.

Narvasa, C.J., (Chairman), Romero, Melo, and Francisco, JJ., concur.

[1]
Docketed as Crim. Case No. C-30549.

[2]
CA rollo, p. 4.

[3]
Records, p. 12.

[4]
Ibid., p. 23.

[5]
Penned by Judge Rene Victoriano.

[6]
CA rollo, p. 12D.

[7]
Records, p. 180.

[8]
p. 13.

[9]
The Eighth Division composed of JJ. Justo P. Torres, Jr., ponente, Reynato
S. Puno (both of whom are now members of the Supreme Court), and Pacita
Canizares-Nye.

[10]
Rollo, pp. 45-51.

[11]
The former Eighth Division was reorganized and J. Emeterio C. Cui
replaced J. Reynato S. Puno.

[12]
Records, pp. 175-177. The narration of facts by the trial court is
reproduced here because it contains more details than the version of
Respondent Court.

[13]
Exhibit “F,” Exhibits Envelope, p. 2

[14]
Exhibit “G,” Exhibits Envelope, p. 3.

[15]
TSN, April 19, 1989, pp. 2-4.

[16]
Records, pp. 177-178. The Memorandum for the Petitioner did not
present the defense’s version of the facts.

[17]
TSN, April 19, 1989, pp. 9-12.

[18]
20 L Ed 2d 889; 88 S Ct 1868, 392 US 1, 900, June 10, 1968.

[19]
Herrera, A Handbook on Arrest, Search and Seizure and Custodial
Investigation, 1995 ed., p. 185; and Terry vs. Ohio, supra, p. 911.

[20]
Pita vs. Court of Appeals, 178 SCRA 362, 376, October 5, 1989; People
vs. Saycon, 236 SCRA 325, 328, September 5, 1994; People vs. Cuizon, 256
SCRA 325, 338, April 18, 1996; and People vs. Lacerna, G.R. No. 109250,
September 5, 1997.

[21]
Section 12, Rule 126 of the Rules of Court, allows a search without a
warrant for “dangerous weapons or anything which may be used as proof of
the commission of an offense” of a person lawfully arrested.

[22]
People vs. Lacerna, supra; People vs. Fernandez, 239 SCRA 174, 182-
183, December 13, 1994. In the latter case, Puno, J., proposed a sixth
exception: exigent circumstances, as a catchall category that would
encompass a number of diverse situations where some kind of emergency
makes obtaining a search warrant impractical, useless, dangerous or
unnecessary.

[23]
G.R. No. 116720, October 2, 1997, pp. 15-16, citing A Handbook on
Arrest, supra, p. 40.

[24]
188 SCRA 288, 292-293, August 2, 1990, per Gancayco, J., concurred in
by all members of the First Division, namely: Narvasa, Cruz, Griño-Aquino
and Medialdea, JJ.

[25]
TSN, May 27, 1988, pp. 6-9.

[26]
People vs. Salangga, 234 SCRA 407, 417-4187, July 25, 1994, per
Regalado, J.

[27]
Manila Bay Club Corporation vs. Court of Appeals, 245 SCRA 715, 729,
July 11, 1995; Chua vs. Court of Appeals, 206 SCRA 339, 344-345, February
19, 1992; and Baquiran v.s Court of Appeals, 2 SCRA 873, 877, July 31,
1961.

[28]
People vs. Atad, G.R. No. 114105, January 16, 1997, p. 19; People vs.
Lua, 256 SCRA 539, 546, April 26, 1996; and People vs. Exala, 221 SCRA
494, 498-499, April 22, 1993.

[29]
Exhibits “A” & “A-1,” Exhibits Envelope, p. 1.

[30]
People vs. Lua, supra, p. 547.

[31]
People vs. Lacerna, supra.

[32]
Records, p. 23.

[33]
People vs. Velasco, 252 SCRA 135, 143, January 23, 1996, per Davide, J.

[34]
People vs. Tabar, 222 SCRA 144, 155, May 17, 1993, per Davide, J.

Source: Supreme Court E-Library | Date created: October 01, 2014

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363 Phil. 481

SECOND DIVISION

[ G.R. No. 127801, March 03, 1999 ]

PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. SAMUEL YU

VALDEZ @ BEBOT, ACCUSED-APPELLANT.

DECISION
QUISUMBING, J.:

This is an appeal from the decision[1] rendered on November 4, 1996, by the

Regional Trial Court of Lagawe, Ifugao, Branch 14, in Criminal Case No. 930,
which found Samuel Valdez guilty of the crime of illegal transport of
marijuana buds/leaves and sentencing him to reclusion perpetua and to pay
a fine of P500,000.00.

In an information dated December 28, 1994, Provincial Prosecutor Jose

Godofredo Naui charged herein accused-appellant with violation of Section 4
of Republic Act No. 6425, as amended, otherwise known as Dangerous
Drugs Act of 1972, allegedly committed as follows:
"That on or about the 1st day of September, 1994, in the Municipality of
Hingyon, Ifugao and within the jurisdiction of the Honorable Court, the
above-named accused, while on board a Dangwa Tranco bus bound for
Manila, did then and there, wilfully and unlawfully transport marijuana
weighing more or less two kilos packed in two separate containers.

CONTRARY TO LAW."[2]
Upon arraignment, herein accused-appellant, assisted by counsel, entered a
plea of "not guilty." Thereafter, trial on the merits ensued. Subsequently, the
trial court rendered the assailed judgment, the dispositive portion of which
reads:
"From the foregoing, the prosecution having proven the guilt of the accused
beyond reasonable doubt, he is hereby sentenced to suffer the penalty of
reclusion perpetua. He is fined the amount of Five Hundred Thousand
(P500,000.00) Pesos. The drug in question is ordered forfeited in favor of
the government.

SO ORDERED."[3]
The prosecution's evidence upon which the finding of guilt beyond
reasonable doubt was based is summarized by the trial court as follows:
"In the morning of September 1, 1994, SPO1 Bernardo Mariano was in the
Municipality of Banaue, Ifugao waiting for a ride to report for work in
Lagawe, Ifugao. A civilian asset approached him and intimated that an
Ilocano person was ready to transport marijuana. This asset described to
him the physical appearance of the suspect as thin and possessing a green
bag. Mr. Mariano invited the asset and together they proceeded to Barangay
O-ong, Hingyon, Ifugao. There they alighted and stopped and ordinary
Dangwa passenger bus bound for Baguio City. Aboard on this bus, they did
not find the person concerned and reaching Barangay Pitawan, Hingyon,
Ifugao, they stepped out of the vehicle and waited for the air conditioned
Dangwa bus bound for Manila. When this bus arrived, Police Officer Mariano
boarded the aircon bus and looked for that person from among the
passengers and noticed him holding the green bag. He immediately ordered
the person to get out of the bus. This fellow followed holding the bag. Once
outside, he further ordered the suspect to open the bag and saw a water jug
colored red and white and a lunch box. He told this man to open the jug and
the lunch box and when opened, he saw marijuana leaves as contents. At
this time, suspect revealed his name to be Samuel Yu Valdez. With this
discovery, the asset was left behind and Peace Officer Mariano escorted the
accused to the Philippine National Police (PNP) Provincial Headquarters at
Lagawe, Ifugao. He turned over the accused including the contents of the
green bag to his superiors for further investigation."[4]
In open court, SPO1 Bernardo Mariano identified the water jug, the lunch
box, both stuffed with dried marijuana leaves and the green bag. He further
identified the accused as the same person from whom he seized the
prohibited drug. Police Senior Inspector Alma Margarita Villasenor, Forensic
Chemist, PNP Crime Laboratory, Camp Dangwa, La Trinidad, Benguet
averred that from her laboratory examination, the items or samples taken
from the water jug and lunchbox gave positive results to the test for the
presence of marijuana, a prohibited drug.

Only the accused testified in his defense. His testimony is narrated by the
trial court as follows:
"Accused is a resident of Barangay Gumol, Guimba, Nueva Ecija and knows
construction work and more often than not, his co-worker is a certain Edwin
Andres from Cabanatuan City who married one from Banaue, Ifugao. Upon
the invitation of Edwin Andres to attend the latter's birthday celebration
slated on August 31, 1994, accused and Edwin Andres arrived in Banaue,
Ifugao on August 30, 1994. The next day, August 31, 1994, accused partook
of the birthday party and the following morning September 1, 1994, he was
bound for Nueva Ecija taking the 7:00 o'clock in the morning Dangwa bus.
Because of too much intake of liquor (hang-over), when he boarded the bus,
he still felt groggy and sat alone on a seat near the window. While the bus
was proceeding, he felt sleepy on that seat still alone. His bag was placed on
the right side and the green bag was place under the seat to the right.
Feeling slee0py, he noticed somebody or a passenger seated beside him and
later he also felt and noticed that his seatmate was gone and at this time he
was awakened by a tap on his shoulder. He saw two persons standing and
one of them mentioned as `Mariano' who he thought at first was the bus
inspector as he was in fatigue uniform. Then this `Mariano' asked him
whether or not he owns the green bag but he replied saying `I do not know.
I have a fellow seated with me here but he is no more.' He was made to step
out of the bus and there he was forced to declare that he is the owner of the
bag. The other policeman was nearby who pointed to the green bag. That
the two policemen were the ones who opened that bag and its contents were
marijuana. Thereafter, he was brought to the PNP Provincial Headquarters
(termed by the accused as `barracks') in Lagawe, Ifugao. When brought to
said office, he saw many people possibly police or soldiers. He was later on
investigated and showed them the bag. He was told to stay for a while in the
jailhouse. He could remember that he was made to sign some papers or
documents which he did not read. After an overnight stay at the barracks,
he was brought to the hospital for medical examination about the pain on his
breast but kept mum on the blow delivered by Bernardo Mariano at the
waiting shed where he was first aprehended. That from the hospital, he was
brought to the Municipal Jail and later to the Provincial Jail for further
detention."[5]
Appellant, through his counsel, Public Attorney's Office, raised the following
assignment of errors in his appeal:

I
"THE COURT A QUO ERRED IN ADMITTING THE SEIZED DRUGS IN
EVIDENCE.
 II

THE COURT A QUO ERRED IN CONVICTING THE ACCUSED DESPITE THE

FAILURE OF THE PROSECUTION TO PROVE HIS GUILT OF THE CRIME
CHARGED BEYOND REASONABLE DOUBT."[6]
Appellant contends that the marijuana allegedly seized from him was a
product of an unlawful search, hence, inadmissible in evidence.

The resolution of this case hinges on the pivotal question of the

constitutionality and legality of the arrest and search of herein appellant
effected by the police officer.

Settled is the rule that no arrest, search and seizure can be made without a
valid warrant issued by a competent judicial authority. The Constitution
guarantees the right of the people to be secure in their persons, houses,
papers and effects against unreasonable searches and seizures. [7] It further
decrees that any evidence obtained in violation of said rights shall be
inadmissible for any purpose in any proceeding. [8]

The abovementioned constitutional provisions serve as safeguards against

wanton and unreasonable invasion of the privacy and liberty of a citizen as
to his person, papers and effects. The right of a person to be secure against
any unreasonable seizure of his body and any deprivation of his liberty is a
most basic and fundamental one. A statute, rule or situation which allows
exceptions to the requirement of a warrant of arrest or search warrant must
be strictly construed. We cannot liberally consider arrests or seizures without
warrant or extend their application beyond the cases specifically provided or
allowed by law. To do so would infringe upon personal liberty and set back a
basic right so often violated and yet, so deserving of full protection and
vindication.[9]

Nevertheless, the constitutional proscription against warrantless searches

and seizures admits of certain legal and judicial exceptions, 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; (3) search of a moving vehicle; (4) consented
warrantless search; (5) customs search; (6) stop and frisk; and (7) exigent
and emergency circumstances.[10]

On the other hand, a lawful arrest without a warrant may be made by a

peace officer or a private person under the following circumstances:
"(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."[11]
In this case, appellant was caught in flagrante since he was carrying
marijuana at the time of his arrest. A crime was actually being committed by
the appellant, thus, the search made upon his personal effects falls squarely
under paragraph (a) of the foregoing provisions of law, which allow a
warrantless search incident to lawful arrest. While it is true that SPO1
Mariano was not armed with a search warrant when the search was
conducted over the personal effects of appellant, nevertheless, under the
circumstances of the case, there was sufficient probable cause for said police
officer to believe that appellant was then and there committing a crime.

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. [12] 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.[13]

Our jurisprudence is replete with instances where tipped information has

become a sufficient probable cause to effect a warrantless search and
seizure.[14]

In People v. Tangliben,[15] two police officers and a barangay tanod were

conducting surveillance mission at the Victory Liner terminal compound in
San Fernando, Pampanga against persons who may commit misdemeanors
and also on those who may be engaging in the traffic of dangerous drugs
based on information supplied by informers. At 9:30 in the evening, the
policemen noticed a person carrying a red travelling bag who was acting
suspiciously. An informer pointed to the accused-appellant as carrying
marijuana. They confronted him and requested him to open his bag but he
refused. He acceded later on when the policemen identified themselves.
Inside the bag were marijuana leaves wrapped in a plastic wrapper. The
police officers only knew of the activities of Tangliben on the night of his
arrest. Hence, faced with such on-the-spot tip, the police officers acted
quickly as there was not enough time to secure a search warrant.

In People v. Maspil,[16] a checkpoint was set up by elements of the First

Narcotics Regional Unit of the Narcotics Command at Sayangan, Atok,
Benguet, to monitor, inspect and scrutinize vehicles on the highway going
towards Baguio City. This was done because of a confidential report by
informers that Maspil and Bagking, would be transporting a large quantity of
marijuana to Baguio City. In fact, the informers were with the policemen
manning the checkpoint. As expected, at about 2 o'clock in the early
morning of November 1, 1986, a jeepney approached the checkpoint, driven
by Maspil, with Bagking as passenger. The officers stopped the vehicle and
saw that on it were loaded 2 plastic sacks, a jute sack, and 3 big round tin
cans. When opened, the sacks and cans were seen to contain what appeared
to be marijuana leaves. The policemen thereupon placed Maspil and Bagking
under arrest, and confiscated the leaves which, upon scientific examination,
were verified to be marijuana leaves. The Court upheld the validity of the
search thus conducted, as being incidental to lawful warrantless arrest and
declared that Maspil and Bagking had been caught in flagrante delicto
transporting prohibited drugs.

In People v. Malmstedt,[17] Narcom agents set up checkpoint at Acop, Tublay,

Mountain Province in view of reports that vehicles coming from Sagada were
transporting marijuana. They likewise received information that a Caucasian
coming from Sagada had in his possession prohibited drugs. There was no
reasonable time to obtain a search warrant, especially since the identity of
the suspect could not be readily ascertained. Accused's actuations also
aroused the suspicion of the officers conducting the inspection aboard the
bus. The Court held that in light of such circumstances, to deprive the
agents of the ability and facility to act promptly, including a search without a
warrant, would be to sanction impotence and ineffectiveness in law
enforcement, to the detriment of society.

In People v. Bagista,[18] the NARCOM officers had probable cause to stop and
search all vehicles coming from the north to Acop, Tublay, Benguet in view
of the confidential information they received from their regular informant
that a woman having the same appearance as that of accused-appellant
would be bringing marijuana from up north. They likewise had probable
cause to search accused-appellant's belongings since she fitted the
description given by the NARCOM informant.

In Manalili v. Court of Appeals,[19] the policemen conducted a surveillance in

an area of the Kalookan Cemetery based on information that drug addicts
were roaming therein. Upon reaching the place, they chanced upon a man in
front of the cemetery who appeared to be "high" on drugs. He was observed
to have reddish eyes and to be walking in a swaying manner. Moreover, he
appeared to be trying to avoid the policemen. When approached and asked
what he was holding in his hands , he tried to resist. When he showed his
wallet, it contained marijuana. The Court held that the policemen had
sufficient reason to accost accused-appellant to determine if he was actually
"high" on drugs due to his suspicious actuations, coupled with the fact that
based on information, this area was a haven for drug addicts.

As in the instant case, police officer Mariano was tipped off by a civilian
"asset" that a thin Ilocano person with a green bag was about to transport
marijuana from Banaue, Ifugao. Said information was received by SPO1
Mariano the very same morning he was waiting for a ride in Banaue to
report for work in Lagawe, the capital town of Ifugao province. Thus, face
with such on-the-spot information, the law enforcer had to respond quickly
to the call of duty. Obviously, there was not enough time to secure a search
warrant considering the time involved in the process. In fact, in view of the
urgency of the case, SPO1 Mariano together with the civilian `asset"
proceeded immediately to Hingyon, Ifugao to pursue the drug trafficker. In
Hingyon, he flagged down buses bound for Baguio City and Manila, and
looked for the person described by the informant. It must be noted that the
target of the pursuit was just the "thin Ilocano person with a green bag" and
no other. And so, when SPO1 Mariano inspected the bus bound for Manila,
he just singled out the passenger with the green bag. Evidently, there was
definite information of the identity of the person engaged in transporting
prohibited drugs at a particular time and place. SPO1 Mariano had already
an inkling of the identity of the person he was looking for. As a matter of
fact, no search at all was conducted on the baggages of other passengers.
Hence, appellant's claim that the arresting officer was only fishing for
evidence of a crime has no factual basis.

Clearly, SPO1 Mariano had probable cause to stop and search the buses
coming from Banaue in view of the information he got from the civilian
"asset" that somebody having the same appearance as that of appellant and
with a green bag would be transporting marijuana from Banaue. He likewise
had probable cause to search appellant's belongings since he fits the
description given by the civilian "asset". Since there was a valid warrantless
search by the police officer, any evidence obtained during the course of said
search is admissible against appellant.

Appellant likewise asserts that the prosecution failed to prove his guilt
beyond reasonable doubt. He claims that when SPO1 Mariano apprehended
him, he was not in possession of the green bag as the same was under the
seat before him.

The assertion is incredulous.

As SPO1 Mariano declared in his testimony, the appellant was alone in his
seat and the green bag was placed under the seat just in front of appellant.
SPO1 Mariano testified as follows:
"Q: How about this travelling bag, the green bag, is it not that this bag was
placed considerably far from the accused?
 
A: The green bag was placed just in front of him.
 
Q: But he was not holding the bag, is it not?
 
A: No.
 
Q: So he was not in possession of this bag when you apprehended him?
 
A: No.
 
Q: And of course there were other passengers aside from the accused?
 
A: There were other passengers but he was alone on that seat.
 
Q: How about the seat fronting this accused, is it not that there was a
person seated in front?
 
A: Yes, there were.
 
Q: And upon seeing the accused you ordered him to get that bag?
 
A: Yes.
 
Q: And you told him to get the bag and alight from the bus?
 
A: I told him, you get off the bus, and I told him to carry his bag." [20]
From the foregoing testimony, it can be gleamed that when appellant was
asked to get off the bus and bring "his" bag, appellant brought with him said
bag. If, indeed, the bag was not his, he should not have taken it with him in
alighting from the bus. Besides, denial, like alibi, if not substantiated by
clear and convincing evidence, is negative and self-serving evidence bearing
no weight in law.[21]

Appellant further avers that the civilian "asset" should have been presented
in court to shed light on how he managed to get his information. This
argument is not tenable. The settled rule is that the presentation of an
informant in illegal drugs case is not essential for conviction nor is it
indispensable for a successful prosecution because his testimony would be
merely corroborative and cumulative.[22]

Based on the foregoing, this Court is convinced that the guilt of appellant
has been proven beyond reasonable doubt by the evidence on record.

With the enactment and effectivity of R.A. No. 7659,[23] the penalty
imposable upon violators of Section 4 of Dangerous Drugs Act is reclusion
perpetua to death and a fine ranging from five hundred thousand pesos
(P500,000.00) to ten million pesos (P10,000,000.00) if the marijuana
involved weighs 750 grams or more. In this case, the quantity of marijuana
involved weighs more or less two kilograms, hence, the applicable penalty is
reclusion perpetua to death. Since the imposable penalty is composed of two
indivisible penalties, the rules for the application of indivisible penalties
under Article 63 of the Revised Penal Code should be applied. This is
pursuant to our pronouncement in People vs. Simon[24] where we recognized
the suppletory application of the rules on penalties in the Revised Penal Code
as well as the Indeterminate Sentence Law to the Dangerous Drugs Act after
the amendment of the latter by R.A. No. 7659. [25] Thus, as there is neither
mitigating nor aggravating circumstances in the commission of the crime,
the trial court correctly imposed the lesser penalty of reclusion perpetua.
Finally, considering that the penalty imposed is the indivisible penalty of
reclusion perpetua, the Indeterminate Sentence Law could not be applied.[26]

WHEREFORE, the instant appeal is DENIED. The judgment of the lower

court finding appellant guilty of the crime illegal transport of marijuana and
sentencing him to reclusion perpetua and to pay fine of P500,000.00 is
hereby AFFIRMED. Costs against appellant.

SO ORDERED.

Bellosillo, (Chairman), Puno, Mendoza, and Buena, JJ., concur.

[1]
Penned by Judge Anastacio D. Anghad.

[2]
Rollo, p. 4.
[3]
RTC Decision, p. 12; Rollo, p. 21.

[4]
RTC Decision, p. 2; Rollo, p. 11.

[5]
RTC Decision, pp. 4-5; Rollo, pp. 13-14.

[6]
Appellant `s Brief, p. 1; Rollo, p. 38.

[7]
1987 Constitution, Article III, Section 2.

[8]
1987 Constitution, Article III, Section 3 (2).

[9]
People vs. Argawanon, 215 SCRA 652, 667 (1992).

[10]
People vs. Aruta, G.R. No. 120915, April 3, 1998.

[11]
Rules of Court, Rule 113, Section 5.

[12]
People vs. Encinada, 280 SCRA 72, 85-86 (1997).

[13]
People vs. Malmstedt, 198 SCRA 401, 408 (1991).

[14]
People vs. Aruta, supra, note 10.

[15]
184 SCRA 220 (1990).

[16]
188 SCRA 751 (1990).

[17]
198 SCRA 401 (1991).

[18]
214 SCRA 63 (1992).

[19]
280 SCRA 400 (1997).

[20]
TSN, January 9, 1996, pp. 9-10.

[21]
People vs. Apongan, 270 SCRA 713, 727 (1997).

[22]
People vs. Salazar, 266 SCRA 607, 621 (1997).

[23]
RA 7659 took effect on December 31, 1993.

[24]
234 SCRA 555 (1994).

[25]
People vs. Medina, GR-127157, July 10, 1998; People vs. Doroja, 235
SCRA 238, 246 (1994).

[26]
Serrano vs. CA, 247 SCRA 203, 211 (1995).
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263 Phil. 106

THIRD DIVISION

[ G.R. NO. 63630, April 06, 1990 ]

PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. MEDEL

TANGLIBEN Y BERNARDINO, DEFENDANT-APPELLANT.
 DECISION

GUTIERREZ, JR., J.:

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,
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 Patrolman
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 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. 9-10, 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 Victory Liner Bus that he rode and because he was tipsy, he
did not notice that the bus was only bound for San Fernando
Pampanga; that upon alighting at the Victory Liner Compound at
San Fernando, Pampanga,  he crossed the street 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, approached him and asked
him if he has any residence certificate; that when he took out his
wallet, Pat. Punzalan got wallet and took all the money inside the
wallet amounting to P545.00; that Pat. Punzalan told him that he’ll
be taken to the municipal building for verification as he may be an
NPA member; that at the municipal building, he saw a policeman,
identified by him later as Pat. Silverio Quevedo, sleeping but was
awakened when he arrived; that Pat. Quevedo took him upstairs
and told him to take out everything from his pocket saying that the
prisoners inside the jail may get the same from him; that inside his
pocket was a fifty-peso bill and Pat. Quevedo took the same, telling
him that it shall be returned to him but that it was never returned
to him; that he was thereafter placed under detention and
somebody told him that he is being charged with possession of
marijuana and if he would like to be bailed out, somebody is willing
to help him; 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."
(Rollo, pp. 10-11)
Appellant, through counsel de oficio Atty. Enrique Chan, raised the lone assignment
of error in his appeal:

"THE COURT A-QUO ERRED IN CONVICTING THE ACCUSED-

APPELLANT AND FINDING HIM GUILTY OF THE CRIME CHARGED
ON INSUFFICIENT AND DOUBTFUL EVIDENCE." (At p. 48, Rollo)

The Solicitor-General likewise filed his brief, basically reiterating the lower court’s
findings.

However, before this Court had the chance to act on appeal, counsel de oficio 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 the Clerk
of Court, required the new counsel to file her appellant’s brief.  The latter complied
and, in her brief, raised the following assignment of errors:

"THE LOWER COURT ERRED IN ADMITTING AS EVIDENCE THE

PACKAGE OF MARIJUANA ALLEGEDLY SEIZED FROM DEFENDANT-
APPELLANT AS IT WAS A PRODUCT OF AN UNLAWFUL SEARCH
WITHOUT A WARRANT.

II

THE LOWER COURT ERRED IN ADMITTING AS EVIDENCE THE

ALLEGED PACKAGE OF MARIJUANA LEAVES AS THE LEAVES
SUPPOSEDLY SEIZED FROM ACCUSED WHEN IT WAS NEVER
AUTHENTICATED.

III

THE LOWER COURT ERRED IN NOT RULING THAT THE

PROSECUTION FAILED TO PROVE THE GUILT OF DEFENDANT-
APPELLANT." (At p. 92-93, Rollo)

It is contended that the marijuana allegedly seized from the accused was a product
of an unlawful search without a warrant and is therefore inadmissible in evidence.

This contention is devoid of merit.

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:

"xxx 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.

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:

"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,
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:

"The testimony of prosecution witnesses Patrolman 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 aforementioned 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.

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 transport the marijuana leaves has been clearly
established." (Rollo, pp. 13-14)
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."

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.

The offense committed by the appellant is possession of marijuana under Section 8

of Republic Act No. 6425 (Dangerous Drugs Act of 1972 as amended).

WHEREFORE, the judgment of conviction by the trial court is hereby AFFIRMED

but MODIFIED.  The appellant is sentenced to suffer the penalty of imprisonment
ranging from six (6) years and one (1) day to twelve (12) years and fine of Six
Thousand (P6,000.00) Pesos.

SO ORDERED.

Fernan, C.J., (Chairman), Feliciano, Bidin, and Cortes, JJ., concur.

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275 Phil. 447

EN BANC

[ G.R. No. 91107, June 19, 1991 ]

THE PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS.

MIKAEL MALMSTEDT, DEFENDANT-APPELLANT.

DECISION

PADILLA, J.:
 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 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 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.
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 be 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 6425, 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:

(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.
 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 of
the ability and facility to act accordingly, including, to search even without
warrant, in the light of such circumstances, would be to sanction impotence
and ineffectiveness in law enforcement, to the detriment of society.
WHEREFORE, premises considered, the appealed judgment of
conviction by the trial court is hereby AFFIRMED.  Costs against the accused-
appellant.
SO ORDERED.

Melencio-Herrera, Paras, Feliciano, Bidin, Grino-Aquino, Medialdea,

Regalado, and Davide, Jr., JJ., concur
Fernan, C.J., and Gutierrez, Jr., J., join J. Narvasa and J. Cruz in their
dissenting opinion.
Gancayco, J., join J. Narvasa in his dissenting opinion.
Sarmiento, J., on leave.

[1]
 Brief for Defendant-appellant, Rollo, pp. 43-44
[2]
 Brief for Plaintiff-appellee, Rollo, p. 89
[3]
 Decision of the RTC of La Trinidad, Branch 10, dated 12 October
1989, Rollo, pp. 14-20
[4]
 Rollo, pp. 16-17
[5]
 Art. III, Sec. 2, 1987 Constitution
[6]
 Sec. 5, Rule 113 of the Rules on Criminal Procedure
[7]
 People vs. Maspil, G.R. No. 85177, 20 August 1990; People vs. Tangliben,
G.R. No. 63630, 6 April 1990, 184 SCRA 220; People vs. Claudio, G.R.
No. 72564, 15 April 1988, 160 SCRA 646
[8]
 Quintero vs. NBI, G.R. No. 35149, 23 June 1988, 162 SCRA 467
[9]
 Valmonte vs. De Villa, G.R. No. 83988, 29 September 1989, 178 SCRA
211
[10]
 People vs. Claudio, supra.
[11]
 People vs. Tangliben, supra.
[12]
 Posadas vs. Court of Appeals, G.R. No. 83139, 2 August 1990
[13]
 Supra.

DISSENTING OPINION
CRUZ, J.:

I join Mr. Justice Andres R. Narvasa in his dissent, which I believe

represents the correct application to the facts of this case of the provisions
of the Bill of Rights and the Rules of Court on searches and seizures.  It is
consistent with my ponencia in People v. Amminudin, 163 SCRA 402, and
also with Alih v. Castro, 151 SCRA 279, the latter being a unanimous
decision of the Court en banc, and my dissents in Umil v. Ramos (on
warrantless arrests), 187 SCRA 311, Valmonte v. De Villa (on checkpoints),
178 SCRA 211, 185 SCRA 665, and Guazon v. De Villa (on "zonas"), 181
SCRA 623.
I write this separate opinion merely to remark on an observation made
during the deliberation on this case that some members of the Court seem
to be coddling criminals instead of extending its protection to society, which
deserves our higher concern.  The inference is that because of our wrong
priorities, criminals are being imprudently let free, to violate our laws again;
and it is all our fault.
Believing myself to be among those alluded to, I will say without apology
that I do not consider a person a criminal until he is convicted by final
judgment after a fair trial by a competent and impartial court.  Until then,
the Constitution bids us to presume him innocent.  He may seem boorish or
speak crudely or sport tattoos or dress weirdly or otherwise fall short of our
own standards of propriety and decorum.  None of these makes
him a criminal although he may look like a criminal.
It is so easy to condemn a person on the basis of his appearance but it is
also so wrong.
On the question before us, it seems to be the inclination of some judges
to wink at an illegal search and seizure as long as the suspect has been
actually found in possession of a prohibited article.  That fact will
retroactively validate the violation of the Bill of Rights for after all, as they
would rationalize, the suspect is a criminal.  What matters to them is the
fact of illegal possession, not the fact of illegal search and seizure.
This kind of thinking takes us back to the intolerant days of Moncado v.
People's Court, 80 Phil. 1, which was discredited in Stonehill v. Diokno, 20
SCRA 383, even before it was definitely rejected by an express provision in
the 1973 Constitution.  That provision, which has been retained in the
present Constitution, again explicitly declares that any evidence illegally
obtained "shall be inadmissible for any purpose in any proceeding."
The fruit of the forbidden tree should not be allowed to poison our
system of criminal justice.  In the case at bar, the search was made at a
checkpoint established for the preposterous reason that the route was being
used by marijuana dealers and on an individual who had something bulging
at his waist that excited the soldier's suspicion.  Was that probable
cause?  The ponencia notes that the military had advance information that a
Caucasian was coming from the Sagada with prohibited drugs in his
possession.  This is what the military says now, after the fact, to justify the
warrantless search.  It is so easy to make such a claim, and I am surprised
that the majority should readily accept it.
The conclusion that there was probable cause may have been influenced
by the subsequent discovery that the accused was carrying a prohibited
drug.  This is supposed to justify the soldier's suspicion.  In other words, it
was the fact of illegal possession that retroactively established the probable
cause that validated the illegal search and seizure.  It was the fruit of the
forbidden tree that washed clean the tree itself.
In Olmstead v. U.S., 277 U.S. 438, Justice Holmes said sixty-four years
ago:
x x x It is desirable that criminals should be detected, and to that end that
all available evidence should be used.  It is also desirable that the
government should not itself foster and pay for other crimes, when they are
the means by which the evidence is to be obtained.  If it pays its officers for
having got evidence by crime, I do not see why it may not as well pay them
for getting it in the same way, and I can attach no importance to
protestations of disapproval if it knowingly accepts and pays and announces
that in the future it will pay for the fruits.  We have to choose, and for my
part I think it a less evil that some criminals should escape than that the
government should play an ignoble part.

If by deterring the government from playing "an ignoble part," I am

"coddling criminals," I welcome the accusation and take pride in it.  I would
rather err in favor of the accused who is impaled with outlawed evidence
than exalt order at the price of liberty.

SEPARATE OPINION*

NARVASA, J.:

The ancient tradition that a man's home is his castle, safe from intrusion
even by the king, has not only found its niche in all our charters, from 1935
to the present; it has also received unvarying recognition and acceptance in
our case law.[1] The present Constitution[2] declares that -
"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."

It further ordains that any evidence obtained in violation of said right,

among others, "shall be inadmissible for any purpose in any proceeding." [3]
The rule is that no person may be subjected by the police or other
government authority to a search of his body, or his personal effects or
belongings, or his residence except by virtue of a search warrant or on the
occasion of a legitimate arrest.[4] An arrest is legitimate, of course, if effected
by virtue of a warrant of arrest.  Even without a warrant, an arrest may also
be lawfully made by a peace officer or a private person:[5]
"(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."

In any of these instances of a lawful arrest, the person 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." [6] And it has been
held that the search may extend to the area "within his immediate control,"
i.e., the area from which said person arrested might gain possession of a
weapon or destructible evidence.[7]
Apart from "search incidental to an arrest," a warrantless search has also
been held to be proper in cases of "search of a moving vehicle," [8] and
"seizure of evidence in plain view." [9] This was the pronouncement in
Manipon, Jr. v. Sandiganbayan, 143 SCRA 267, 276, which drew attention
to Moreno v. Ago Chi;[10] Alvero v. Dizon,[11] Papa v. Mago,[12] and an
American precedent, Harris v. U.S.[13]
If, on the other hand, a person is searched without a warrant, or under
circumstances other than those justifying an arrest without warrant in
accordance with law, supra, 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." [14] In that event,
any evidence taken, even if confirmatory of the initial suspicion, is
inadmissible "for any purpose in any proceeding." [15] But the right against an
unreasonable search and seizure may be waived by the person arrested,
provided he knew of such right and knowingly decided not to invoke it. [16]
There is unanimity among the members of the Court upon the continuing
validity of these established principles.  However, the Court is divided as
regards the ultimate conclusions which may properly be derived from the
proven facts and consequently, the manner in which the principles just cited
should apply thereto.
The proofs of the prosecution and those of the defense are diametrically
at odds.  What is certain, however, is that the soldiers had no warrant of
arrest when they conducted a search of Malmstedt's person and the things in
his possession at the time.  Indeed, the Court a quo acknowledged that the
soldiers could "not be expected to be armed with a warrant or arrest nor a
search warrant everytime they establish a temporary checkpoint ** (and) no
judge would issue them one considering that searching questions have to be
asked before a warrant could be issued." Equally plain is that prior to the
search, a warrantless arrest of Malmstedt could not validly have been made
in accordance with the norms of the law.  For Malmstedt had not committed,
nor was he actually committing or attempting to commit a crime, in the
soldiers' presence, nor did said soldiers have personal and competent
knowledge that Malmstedt had in fact just committed a crime.  All they had
was a suspicion that Malmstedt might have some prohibited drug on him or
in his bags; all they had was, in the words of the Trial Court, "the hope of
intercepting any dangerous drug being transported," or, as the Office of the
Solicitor General asserts, "information that most of the buses coming **
(from the Cordillera) were transporting marijuana and other prohibited
drugs."
This case, is remarkably similar to Peo. v. Aminnudin, decided on July 6,
1988 also by the First Division.[17] There, Aminnudin was arrested without a
warrant by PC officers as he was disembarking from an inter-island
vessel.  The officers were waiting for him because he was, according to an
informer's report, then transporting marijuana.  The search of Aminnudin's
bag confirmed the informer's report: the bag indeed contained
marijuana.  The Court nevertheless held that since the PC officers had failed
to procure a search warrant although they had sufficient time (two days) to
do so and therefore, the case presented no such urgency as to justify a
warrantless search, the search of Aminnudin's person and bag, the seizure of
the marijuana and his subsequent arrest were illegal; and the marijuana was
inadmissible in evidence in the criminal action subsequently instituted
against Aminnudin for violating the Dangerous Drugs Act.
 There are, on the other hand, other cases adjudicated by this Court in
which apparently different conclusions were reached.  It is needful to devote
a few words to them so that the relevant constitutional and legal
propositions are not misunderstood.
In People v. Claudio (decision promulgated on April 15, 1988), [18] the
accused boarded a "Victory Liner" passenger bus going to Olongapo from
Baguio City.  She placed the plastic bag she was carrying at the back of the
seat then occupied by Obiña, an INP member "on Detached Service with the
Anti-Narcotics Unit." This avowedly aroused Obiña's suspicion, and at the
first opportunity, and without Claudio's knowledge, he surreptitiously looked
into the plastic bag and noted that it contained camote tops as well as a
package, and that there emanated from the package the smell of marijuana
with which he had become familiar on account of his work.  So when the bus
stopped at Sta. Rita, and Claudio alighted, Obiña accosted her, showed her
his ID, identified himself as a policeman, and announced his intention to
search her bag which he said contained marijuana because of the distinctive
odor detected by him.  Ignoring her plea -- "Please go with me, let us settle
this at home" -- he brought her to the police headquarters, where
examination of the package in Claudio's bag confirmed his suspicion that it
indeed contained marijuana.  The Court held the warrantless arrest under
the circumstances to be lawful, the search justified, and the evidence thus
discovered admissible in evidence against the accused.
In People v. Tangliben (decision promulgated on April 6, 1990), [19] two
police officers and a barangay tanod were conducting a "surveillance
mission" at the Victory Liner Terminal at San Nicolas, San Fernando,
Pampanga "aimed not only against persons who may commit misdemeanors
** (there) but also on persons who may be engaging in the traffic of
dangerous drugs based on information supplied by informers; * * they
noticed a person carrying a red traveling bag; ** who was acting
suspiciously;" they asked him to open the bag; the person did so only after
they identified themselves as peace officers; found in the bag were
marijuana leaves wrapped in plastic weighing one kilogram, more or less;
the person was then taken to the police headquarters at San Fernando,
Pampanga, where he was investigated; and an information was thereafter
filed against that person, Tangliben, charging him with a violation of the
Dangerous Drugs Act of 1972 (RA 6425), as amended.  Upon these facts it
was ruled, citing Claudio, supra, that there was a valid warrantless arrest
and a proper warrantless search incident thereto.
The facts in Tangliben were pronounced to be different from
those in People v. Aminnudin, supra.  "In contrast" to Aminnudin where the
Court perceived no urgency as to preclude the application for and obtention
of a search warrant, it was declared that the Tangliben case -
" * * presented urgency.  ** (The evidence revealed) that there was an
informer who pointed to the accused-appellant as carrying marijuana.  **
Faced with such on-the-spot information, the police officers had to act
quickly.  There was not enough time to secure a search warrant.  * * 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."

In Tangliben, therefore, there was in the Court's view sufficient evidence on

hand to enable the PC officers to secure a search
warrant, had there been time.  But because there was actually no time to
get the warrant, and there were "on-the-spot" indications that Tangliben was
then actually committing a crime, the search of his person and his effects
was considered valid.
Two other decisions presented substantially similar
circumstances:  Posadas v. C.A., et al., decided on August 2, 1990,
[20]
 and People v. Moises Maspil, Jr., et al., decided on August 20, 1990.[21]
In the first case, Posadas was seen to be acting suspiciously by two
members of the INP, Davao Metrodiscom, and when he was accosted by the
two, who identified themselves as police officers, he suddenly fled.  He was
pursued, overtaken and, notwithstanding his resistance, placed in
custody.  The buri bag Posadas was then carrying was found to contain a
revolver, for which he could produce no license or authority to possess, four
rounds of live ammunition, and a tear gas grenade.  He was prosecuted for
illegal possession of firearms and ammunition and convicted after trial.  This
Court affirmed Posadas' conviction, holding that there was, in the premises,
probable cause for a search without warrant, i.e., the appellant was acting
suspiciously and attempted to flee with the buri bag he had with him at the
time.  The Court cited with approval the ruling of the U.S. Federal Supreme
Court in John W. Terry v. State of Ohio,[22] a 1968 case, which the Solicitor
General had invoked to justify the search.
 In the case of Maspil, et al., a checkpoint was set up by elements of the
First Narcotics Regional Unit of the Narcotics Command at Sayangan, Atok,
Benguet, to monitor, inspect and scrutinize vehicles on the highway going
towards Baguio City.  This was done because of a confidential report by
informers that Maspil and another person, Bagking, would be transporting a
large quantity of marijuana to Baguio City.  In fact, the informers were with
the policemen manning the checkpoint.  As expected, at about 2 o'clock in
the early morning of November 1, 1986, a jeepney approached the
checkpoint, driven by Maspil, with Bagking as passenger.  The officers
stopped the vehicle and saw that on it were loaded 2 plastic sacks, a jute
sack, and 3 big round tin cans.  When opened, the sacks and cans were seen
to contain what appeared to be marijuana leaves.  The policemen thereupon
placed Maspil and Bagking under arrest, and confiscated the leaves which,
upon scientific examination, were verified to be marijuana leaves.  The Court
upheld the validity of the search thus conducted, as being incidental to a
lawful warrantless arrest,[23] and declared that, as in Tangliben, supra, Maspil
and Bagking had been caught in flagrante delicto transporting prohibited
drugs at the time of their arrest.  Again, the Court took occasion to
distinguish the case from Aminnudin[24] in which, as aforestated, it appeared
that the police officers were aware of Aminnudin's identity, his projected
criminal enterprise and the vessel on which he would be arriving, and,
equally as importantly, had sufficient time and opportunity to
obtain a search warrant.  In the case of Maspil and Bagking, the Court found
that the officers concerned had no exact description of the vehicle the
former would be using to transport marijuana, and no inkling of the definite
time of the suspects' arrival, and pointed out that a jeepney on the road is
not the same as a passenger boat on the high seas whose route and time of
arrival are more or less certain, and which ordinarily cannot deviate from or
otherwise alter its course, or select another destination. [25]
The most recent decision treating of warrantless search and seizure
appears to be People v. Lo Ho Wing, etc., et al, G.R. No. 88017, decided on
January 21, 1991 (per Gancayco, J.).  In that case, an undercover or "deep
penetration" agent, Tia, managed somehow to gain acceptance into a group
of suspected drug smugglers, which included Peter Lo and Lim Ching
Huat.  Tia accompanied Peter Lo, to Guangzhou, China, where he saw him
and other persons empty the contents of six (6) tins of tea and replace them
with white powder.  On their return to Manila with the cans of substituted
"tea," they were met at the airport by Lim.  As they were leaving the airport
in separate vehicles, they were intercepted by officers and operatives of the
Narcotics Command (NARCOM), who had earlier been tipped off by Tia, and
placed under arrest.  A search of the luggage brought in by Tia and Peter Lo,
loaded on the group's vehicles, quickly disclosed the six (6) tin cans
containing fifty-six (56) bags of white crystalline powder which, upon
analysis, was identified as metamphetamine.  Tia, Lo and Lim were indicted
for violation of the Dangerous Drugs Act of 1972.  Tia was discharged as
state witness.  Lo and Lim were subsequently convicted and sentenced to life
imprisonment.  One of the questions raised by them in this Court on appeal
was whether the warrantless search of their vehicles and personal effects
was legal.  The Court, citing Manipon, Jr. v. Sandiganbayan, 143 SCRA 267
(1986),[26] held legal the search of the appellants' moving vehicles and the
seizure therefrom of the dangerous drug, considering that there was
intelligence information, including clandestine reports by a planted spy
actually participating in the activity, that the appellants were bringing
prohibited drugs into the country; that the requirement of obtaining a search
warrant "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," and "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."[27]
In all five cases, Claudio, Tangliben, Posadas, Maspil, and Lo Ho Wing,
facts existed which were found by the Court as justifying warantless
arrests.  In Claudio, the arresting officer had secretly ascertained that the
woman he was arresting was in fact in possession of marijuana:  he had
personally seen that her bag contained not only vegetables but also a
package emitting the odor of marijuana.  In Tangliben, the person arrested
and searched was acting suspiciously, and had been positively pointed to as
carrying marijuana.  And in both cases, the accused were about to board
passenger buses, making it urgent for the police officers concerned to take
quick and decisive action.  In Posadas, the person arrested and searched
was acting suspiciously, too, and when accosted had attempted to flee from
the police officers.  And in Maspil and Lo Ho Wing, there was definite
information of the precise identity of the persons engaged in transporting
prohibited drugs at a particular time and place.
Now, as regards the precise issue at hand, whether or not the facts
in the case at bar make out a legitimate instance of a warrantless search
and seizure, there, is, as earlier pointed out, a regrettable divergence of
views among the members of the Court.
Contrary to the conclusion reached by the majority, I believe that the
appellant should be absolved on reasonable doubt.  There was in this case
no confidential report from, or positive identification by an informer; no
attempt to flee; no bag or package emitting tell- tale odors; no other
reasonably persuasive indications that Malmstedt was at the time in process
of perpetrating the offense for which he was subsequently
prosecuted.  Hence, when the soldiers searched Malmstedt's pouch and the
bags in his possession, they were simply "fishing" for evidence.  It matters
not that the search disclosed that the bags contained prohibited substances,
confirming their initial information and suspicion.  The search was not made
by virtue of a warrant or as an incident of a lawful warrantless arrest, i.e.,
under circumstances sufficient to engender a reasonable belief that some
crime was being or about to be committed, or had just been
committed.  There was no intelligent and intentional waiver of the right
against unreasonable searches and seizure.  The search was therefore
illegal, since the law requires that there first be a lawful arrest of an
individual before a search of his body and his belongings may licitly be
made.  The process cannot be reversed, i.e., a search be first undertaken,
and then an arrest effected, on the strength of the evidence yielded by the
search.  An arrest made in that case would be unlawful, and the search
undertaken as an incident of such an unlawful arrest, also unlawful.
The fact that when investigated at the headquarters of the Narcotics
Command at Camp Dangwa, La Trinidad, Malmstedt had, it is said, willingly
admitted that there were was hashish inside the "teddy bears" in the
luggage found in his possession -- an admission subsequently confirmed by
laboratory examination -- does not help the cause of the prosecution one
bit.  Nothing in the record even remotely suggests that Malmstedt was
accorded the rights guaranteed by the Constitution to all persons under
custodial investigation.[28] He was not informed, prior to being interrogated,
that he had the "right to remain silent and to have competent and
independent counsel preferably of his own choice," and that if he could not
afford the services of counsel, he would be provided with one; not does it
appear at all that he waived those rights "in writing and in the presence of
counsel." The soldiers and the police officers simply went ahead with the
investigation of Malmsted, without counsel.  The admissions elicited from
Malmstedt under these circumstances, as the Constitution clearly states, are
"inadmissible in evidence against him."[29]
The prohibited drugs supposedly discovered in Malmstedt's bags, having
been taken in violation of the constitutional right against unreasonable
searches and seizures, are inadmissible against him "for any purpose in any
proceeding." Also pronounced as incompetent evidence against him are the
admissions supposedly made by him without his first being accorded the
constitutional rights of persons under custodial investigation.  Without such
object evidence and admissions, nothing remains of the case against
Malmstedt.
It may be conceded that, as the Trial Court points out, the evidence
presented by Malmstedt in his defense is feeble, unworthy of credence.  This
is beside the point; for conformably to the familiar axiom, the State must
rely on the strength of its evidence and not on the weakness of the
defense.  The unfortunate fact is that although the existence of the hashish
is an objective physical reality that cannot but be conceded, there is in law
no evidence to demonstrate with any degree of persuasion, much less
beyond reasonable doubt, that Malmstedt was engaged in a criminal
activity.  This is the paradox created by the disregard of the applicable
constitutional safeguards.  The tangible benefit is that the hashish in
question has been correctly confiscated and thus effectively withdrawn from
private use.
What is here said should not by any means be taken as a disapproval or
a disparagement of the efforts of the police and military authorities to deter
and detect offenses, whether they be possession of and traffic in prohibited
drugs, or some other.  Those efforts obviously merit the support and
commendation of the Courts and indeed of every responsible citizen.  But
those efforts must take account of the basic rights granted by the
Constitution and the law to persons who may fall under suspicion of
engaging in criminal acts.  Disregard of those rights may not be justified by
the objective of ferreting out and punishing crime, no matter how eminently
desirable attainment of that objective might be.  Disregard of those
rights, as this Court has earlier stressed, may result in the escape of the
guilty, and all because the "constable has blundered," rendering the
evidence inadmissible even if truthful or otherwise credible. [30]
I therefore vote to reverse the Trial Court's judgment of October 12,
1989 and to acquit the appellant on reasonable doubt.

*
 The case was referred to the Court En Banc by the First Division (to which
it had originally been assigned).  Thereafter the Court En
Banc resolved to accept and itself decide the case.
[1]
 SEE Peo. v. Burgos, 144 SCRA 1 (1986); Roan v. Gonzales, 145 SCRA 687
(1986); Alih v. Castro, 151 SCRA 279 (1987); Guazon v. de Villa, G.R.
No. 80508, Jan. 30, 1990
[2]
 ART. III, Sec. 2, 1987 Constitution; to the same effect: ART. IV, Sec. 3,
1973 Constitution, and ART. IV, Sec. 3, 1935 Constitution
[3]
 ART III, Sec. 3 (2)
[4]
 Peo v. de la Cruz, G.R. No. 83260, April 18, 1990.
[5]
 Sec. 5, Rule 113, Rules of Court; SEE Cruz, I.A., Constitutional Law, 1987
ed., pp. 141-142, citing Adams v. Williams, 47 U.S. 143 and Terry v.
Ohio, 392 U.S. 1
[6]
 Sec. 12, Rule 126, Rules of Court
[7]
 SEE Chimel v. California, 395 U.S. 752 (1969), cited in the monograph
of Mr. Justice Mendoza, V.V. entitled Reflections on the Constitutional
Law of Arrest, Search and Seizure, Philippine Law Journal, Vol. LXIII,
Third Quarter, September, 1988, p. 241.
[8]
 As pointed out in Cruz, op. cit., p. 142, in the U.S., "searches without
warrant may also be made of automobiles 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," but "the mere mobility of these
vehicles does not justify their indiscriminate searches without warrants
if made within the interior of the territory and in the absence of
probable cause (Almeida-Sanchez v. U.S., 37 L. ed. 2d 596; Carroll v.
U.S. 267 U.S. 132)."
[9]
 SEE footnote 13, infra
[10]
 12 Phil. 439, to the effect that, "An officer making an arrest may take
from the person arrested any money or property found upon his
persons which was used in the commission of the crime or was the
fruit of the crime of which might furnish the prisoner with the means of
committing violence or escaping, or which may be used in evidence in
the trial of the case."
[11]
 76 Phil. 637 to the effect that, "The most important exception to the
necessity for a search warrant is the right of search and seizure as an
incident to a lawful arrest. A lawful arrest may be made either while a
crime is being committed or after its commission. The right to search
includes in both instances that of searching the person of him who is
arrested, in order to find and seize things connected with the crime as
its fruits or as the means by which it was committed (Agnello vs.
United States, 269 U.S., 20)."
[12]
 22 SCRA 857 -- that the "Tariff and Customs Code does not require any
search warrant issued by a competent court before police authorities
can effect the seizure. But the Code requires it in the search of a
dwelling house."
[13]
 390 U.S. 234, holding that "prohibited articles within plain view, 'open to
eye and hand,' of the law-enforcement officer who comes upon them
'inadvertently,' may also be seized by him even without warrant (SEE
Cruz, op. cit., p. 143)
[14]
 SEE U.S. v. Hachaw, 21 Phil. 514 (1912); U.S. v. Santos, 36 Phil. 853
(1917), Integrated Bar of the Philippines v. Enrile, Oct. 21, 1985, cited
in Gupit, Rules of Criminal Procedure, 1986 ed., pp. 179-182; Peo. v.
Aminnudin, 163 SCRA 402 (1988); Guazon v. de Villa, G.R. No. 80508,
Jan. 30, 1990; cf., Peo. v. Cruz, 165 SCRA 135 (1988)
[15]
 Nolasco v. Ernani Cruz-Paño, 147 SCRA 509 (1987); SEE, also, People v.
Burgos, 144 SCRA 1 (1986) where the petitioner, while plowing his
field, was arrested and his premises searched on the basis of
information that he was in possession of unlicensed firearms, and
thereafter, on discovery by the authorities of a gun and subversive
documents, had admitted ownership thereof -- upon which facts, this
Court ruled the gun and documents to be inadmissible in evidence
because their seizure was not an incident of a lawful arrest, and his
acknowledgment of ownership thereof equally incompetent because
obtained in violation of the Miranda doctrine.
[16]
 SEE Cruz, op. cit., p. 142, citing Terry v. Ohio, supra, and Magoncia v.
Palacio, 80 Phil. 770, and pointing out, on the authority of Callanta v.
Villanueva, 77 SCRA 377 and Bagcal v. Villaraza, 120 SCRA 525, that
the posting by the accused of a bail bond constitutes waiver of any
irregularity attending his arrest and estops him from questioning its
validity.
[17]
 163 SCRA 402, per Cruz, J., Griño-Aquino, J., dissenting; SEE footnote 6
at page 2, supra
[18]
 160 SCRA 646, Third Division, per Gutierrez, Jr., J.
[19]
 184 SCRA 220, Third Division, per Gutierrez, Jr., J.
[20]
 G.R. No. 83139, First Division, per Gancayco, J.
[21]
 G.R. No. 85177, Third Division, per Gutierrez, Jr., J.
[22]
 392 US 1, 20 L Ed 2d 889, 88 S Ct 1868
[23]
 Sec. 12, Rule 126 in relation to Sec. 5, Rule 113 of the 1985 Rules of
Criminal Procedure
[24]
 SEE footnote 20, supra
[25]
 Attention may be drawn, in this connection, to the Resolution of May 24,
1990 in G.R. No. 83988 (Valmonte v. de Villa, [Sept. 29, 1989], 178
SCRA 211) where the Court cited with approval a ruling of the U.S.
Supreme Court that "Automobiles, because of their mobility, may be
searched without a warrant upon facts not justifying a warrantless
search of a residence or office. Brinegar v. United States, 338 US 160,
93 L Ed 1879, 69 S Ct 1302 (1949); Carroll v. United States, 267 US
132, 69 L Ed 543, 45 S Ct 280, 39 ALR 790 (1925). The cases so
holding have, however, always insisted that the officers conducting the
search have 'reasonable or probable cause' to believe that they will
find the instrumentality of a crime or evidence pertaining to a crime
before they begin their warrantless search. ** (Dyke v. Taylor, 391 US
216, 20 L Ed 538, 88 S Ct 1472)."
[26]
 SEE footnotes 9 and 13, supra
[27]
 Citing Carroll v. U.S., 267 U.S. 132, 153 (1925)
[28]
 ART. III, Sec. 12 (1)
[29]
 Id., Sec. 12 (3); Peo. v. Buenaflor, G.R. No. 62805, Jan. 22, 1990;
Peo. v. Camalog, G.R. No. 77116, Jan. 31, 1989; Peo. v. Lagahan,
G.R. No. 78692, Dec. 8, 1988; Peo. v. Newman, G.R. No. 45354, July
26, 1988
[30]
 Peo. v. Hizon, G.R. No. 71273, July 29, 1988, per Cruz, J.

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367 Phil. 703

EN BANC

[ G.R. No. 128222, June 17, 1999 ]

PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. CHUA HO

SAN @ TSAY HO SAN, ACCUSED-APPELLANT.

DECISION

DAVIDE, JR., C.J.:

Chua Ho San @ Tsay Ho San (hereafter CHUA) prays for his acquittal and
the reversal of the judgment of 10 February 1997 of the Regional Trial Court
(RTC) of San Fernando, La Union, Branch 66, finding him guilty of
transporting, without appropriate legal authority, the regulated substance
methamphetamine hydrochloride, in violation of Section 15, [1] Article III of
Republic Act No. 6425, otherwise known as the Dangerous Drugs Act of
1972 as further amended by R.A. No. 7659,[2] and sentencing him to "die by
lethal injection." In view thereof, the judgment was brought to this Court for
automatic review pursuant to Article 47 of the Revised Penal Code, as
amended by Section 11 of R.A. No. 7659.

In response to reports of rampant smuggling of firearms and other

contraband, Jim Lagasca Cid (hereafter CID), as Chief of Police of the
Bacnotan Police Station, of La Union began patrolling the Bacnotan coastline
with his officers. While monitoring the coastal area of Barangay Bulala on 29
March 1995, he intercepted a radio call at around 12:45 p.m. from Barangay
Captain Juan Almoite (hereafter ALMOITE) of Barangay Tammocalao
requesting police assistance regarding an unfamiliar speedboat the latter
had spotted. According to ALMOITE, the vessel looked different from the
boats ordinarily used by fisherfolk of the area and was poised to dock at
Tammocalao shores. CID and six of his men led by his Chief Investigator,
SPO1 Reynoso Badua (hereafter BADUA), proceeded forthwith to
Tammocalao beach and there conferred with ALMOITE. CID then observed
that the speedboat ferried a lone male passenger. As it was routine for CID
to deploy his men in strategic places when dealing with similar situations, he
ordered his men to take up positions thirty meters from the coastline. When
the speedboat landed, the male passenger alighted, and using both hands,
carried what appeared a multicolored strawbag. He then walked towards the
road. By this time, ALMOITE, CID and BADUA, the latter two conspicuous in
their uniform and issued side-arms, became suspicious of the man as he
suddenly changed direction and broke into a run upon seeing the
approaching officers. BADUA, however, prevented the man from fleeing by
holding on to his right arm. Although CID introduced themselves as police
officers, the man appeared impassive. Speaking in English, CID then
requested the man to open his bag, but he seemed not to understand. CID
thus tried speaking Tagalog, then Ilocano, but still to no avail. CID then
resorted to what he termed "sign language;" he motioned with his hands for
the man to open the bag. This time, the man apparently understood and
acceded to the request. A search of the bag yielded several transparent
plastic packets containing yellowish crystalline substances. CID then
gestured to the man to close the bag, which he did. As CID wished to
proceed to the police station, he signaled the man to follow, but the latter
did not to comprehend. Hence, CID placed his arm around the shoulders of
the man and escorted the latter to the police headquarters.

At the police station, CID surmised, after having observed the facial features
of the man, that he was probably Taiwanese. CID then "recited and informed
the man of his constitutional rights" to remain silent, to have the assistance
of a counsel, etc. Eliciting no response from the man, CID ordered his men
to find a resident of the area who spoke Chinese to act as an interpreter. In
the meantime, BADUA opened the bag and counted twenty-nine (29) plastic
packets containing yellowish crystalline substances which he and CID
suspected was shabu. The interpreter, Mr. Go Ping Guan, finally arrived,
through whom the man was "apprised of his constitutional rights." The police
authorities were satisfied that the man and the interpreter perfectly
understood each other despite their uncertainty as to what language was
spoken. But when the policemen asked the man several questions, he
retreated to his obstinate reticence and merely showed his I.D. with the
name Chua Ho San printed thereon. CHUA's bag and its contents were sent
to the PNP Crime Laboratory at Camp Diego Silang, Carlatan, San Fernando,
La Union for laboratory examination. In the meantime, CHUA was detained
at the Bacnotan Police Station.

Later that same day, Police Chief Inspector and Forensic Chemist Theresa
Ann Bugayong Cid of the Philippine National Police, Region I, received a
letter request[3] from CID - incidentally her husband - to conduct a
laboratory examination of twenty-nine (29) plastic packets placed inside a
multicolored strawbag. In her Chemistry Report No. D-025-95, [4] she stated
that her qualitative examination established the contents of the plastic
packets, weighing 28.7 kilos, to be positive of methamphetamine
hydrochloride or shabu, a regulated drug.

CHUA was initially charged with illegal possession of methamphetamine

hydrochloride before the RTC which docketed the case as Criminal Case No.
4037. However, pursuant to the recommendation of the Office of the
Provincial Prosecutor of San Fernando, La Union, that the facts of the case
could support an indictment for illegal transport of a regulated drug, the
information was subsequently amended to allege that CHUA "willfully,
unlawfully and feloniously transpor(ted) 28.7 kilos of [m]ethamphetamine
[h]ydrochloride (shabu) without the necessary permit or authority to
transport the same" in violation of Section 15, Article III of R.A. 6425 as
amended by R.A. 7659.

At his arraignment on 31 July 1995, CHUA entered a plea of not guilty. The
RTC was satisfied that CHUA understood the amended information read to
him in Fukien by the Fukien-speaking interpreter, Thelma Sales Go.

Thereafter, the RTC exerted all efforts to obtain the services of a Taiwanese
Interpreter through the auspices of the Department of Foreign Affairs.
However, it was only after directing the request to the Taipei Economic and
Cultural Office in the Philippines that interpreters were assigned to CHUA.

Trial finally ensued. The State presented evidence tending to establish the
above narration of facts which were culled chiefly from the testimony of CID,
its first witness, and whose testimony, in turn, was substantially
corroborated by witnesses BADUA and ALMOITE.

Expert witness Theresa Ann Cid, confirmed the entries of her chemistry
report in that the contents of the 29 plastic packets weighing 28.7 kilos sent
to her for chemical analysis were pure, unadulterated methamphetamine
hydrochloride or shabu. She also explained that they were unwashed, hence
they appeared yellowish.

For the defense, CHUA testified in his own behalf through interpreter Steven
Yu. He disclosed that he hails from Taiwan and was employed in a
shipbuilding and repairing company. On 21 March 1995, he was instructed
by his employer Cho Chu Rong (hereafter RONG) to board the latter's 35-
tonner ship which would embark for Nan Au Port, Mainland China where they
would buy fish. Upon arrival at their destination, RONG left the ship, came
back without the fish, but with two bags, the contents of which he never
divulged to CHUA. RONG then showed to CHUA a document purportedly
granting them authority to fish on Philippine waters. So they sailed towards
the Philippines and reached Dagupan, Pangasinan on 29 March 1995. At
around 10:30 a.m., they disembarked on a small speedboat with the two
bags RONG brought with him from China. While sailing, RONG made several
phone calls using his mobile phone. CHUA heard RONG asked the person on
the other side of the line if he could see the speedboat they were riding.
Apparently, the person on shore could not see them so they cruised over the
waters for about five hours more when finally, low on fuel and telephone
battery, they decided to dock. CHUA anchored the boat while RONG carried
the bags to shore. The tasks completed, RONG left to look for a telephone
while CHUA rested and sat one and half (1 1/2) meters away from one bag.
A child thereafter pointed out to him that one bag was missing much to
RONG's dismay when he learned of it. When a crowd started to mill around
them, the police arrived. CHUA then realized that RONG was nowhere to be
found. The police immediately approached CHUA, and with nary any spoken
word, only gestures and hand movements, they escorted him to the precinct
where he was handcuffed and tied to a chair. Later, the police, led by an
officer who CHUA guessed as the Chief of Police arrived with the motor
engine of the speedboat and a bag. They presented the bag to him, opened
it, inspected and weighed the contents, then proclaimed them as
methamphetamine hydrochloride.

CHUA denounced the prosecution's story as a distortion of the truth. He

denied he was ever favored with an interpreter or informed of his
"constitutional rights," particularly of his right to counsel. Consequently, his
arrest was tainted with illegality and the methamphetamine hydrochloride
found in the bag should have been regarded inadmissible as evidence. He
also maintained that CID never graced the occasion of his setting foot for
the first time at Tammocalao beach. BADUA certainly never prevented him
from running away, as such thought failed to make an impression in his
mind. Most significantly, he denied ownership and knowledge of the contents
of the bag, emphasizing that RONG alone exercised dominion over the same.

Elmer Parong, (hereafter PARONG) a Sangguniang Bayan member, recalled

that on the date in question, he arrived at the beach with the police. He saw
CHUA standing with a bag beside him. He also remembered hearing from the
people congregating at the beach that CHUA arrived with a companion and a
certain policeman Anneb had chased the latter's car. He additionally claimed
that when the crowd became unruly, the police decided to bring CHUA to
police headquarters. There, the mayor took charge of the situation -- he
opened CHUA's bag with the assistance of the police, he called for a forensic
chemist surnamed CID to take a sample of the contents of the bag, and he
ordered his officials to find an interpreter. Throughout the proceedings,
photographers were busy taking pictures to document the event.

Last to testify was Arsenio CRAIG, a farmer and resident of Tammocalao

who narrated that he was standing with CHUA on the beach when two men
and a lady arrived. They were about to get a bag situated near CHUA when
they detected the arrival of the local police. They quickly disappeared.
CRAIG then noticed ALMOITE and PARONG at the beach but not CID.

In a decision promulgated on 10 February 1997, the RTC found that the

prosecution successfully discharged its burden of proving that CHUA
transported 28.7 kilos of methamphetamine hydrochloride without legal
authority to do so. Invoking People v. Tagliben[5] as authority, the RTC
characterized the search as incidental to a valid in flagrante delicto arrest,
hence it allowed the admission of the methamphetamine hydrochloride as
corpus delicti. The RTC also noted the futility of informing CHUA of his
constitutional rights to remain silent, and to have competent and
independent counsel preferably of his own choice, considering the language
barrier and the observation that such irregularity was "rectified when
accused was duly arraigned and ... (afterwards) participated in the trial of
this case." The RTC then disregarded the inconsistencies and contradictions
in the testimonies of the prosecution witnesses as these referred to minor
details which did not impair the credibility of the witnesses or tarnish the
credence conferred on the testimonies thus delivered.

The RTC also believed that CHUA conspired not only with his alleged
employer RONG and the Captain of the 35-tonner vessel in the illegal trade
of prohibited drugs on Philippine shores, but with several other members of
an organized syndicate bent on perpetrating said illicit traffic. Such
predilection was plainly evident in the dispositive portion, to wit:
WHEREFORE, and in view of all the foregoing, as proven and established by
convincing and satisfactory evidence that the accused had conspired and
acted in concert with one Cho Chu Rong, not to mention Chen Ho Fa, the
Skipper of the 35-tonner ship they used in coming to the Country from China
and Taiwan, this Court finds the accused Chua Ho San @ Tsay Ho San guilty
beyond reasonable doubt of the offense of Violation of Sec. 15, Art. III of
R.A. No. 6425, as amended by R.A. No. 7659 as charged in the Information,
and considering the provisions of Sec. 20 of R.A. No. 7659 that the
maximum penalty shall be imposed if the quantity
sold/possessed/transported is `200 grams or more' in the case of Shabu,
and considering, further that the quantity involved in this case is 28.7
kilograms which is far beyond the weight ceiling specified in said Act,
coupled with the findings of conspiracy or that accused is a member of an
organized syndicated crime group, this Court, having no other recourse but
to impose the maximum penalty to accused, this Court hereby sentences the
said accused Chua Ho San @ Tsay Ho San to die by lethal injection; to pay a
fine of Ten Million Pesos (P10,000,000.00); and to pay the costs.

The Court hereby orders Director Ricareido [sic] Sarmiento of the Philippine
National Police to immediately form an investigating Committee to be
composed by [sic] men of unimpeachable integrity, who will conduct an
exhaustive investigation regarding this case to determine whether there was
negligence or conspiracy in the escape of Cho Chu Rong and the two (2) or
three (3) persons who approached the accused in the seashore of
Tammocalao, Bacnotan, La Union, and attempted to take the remaining bag
from accused, as well as the whereabouts of the other bag; and to furnish
this Court a copy of the report/result of the said investigation in order to
show compliance herewith sixty (60) days from receipt hereof.
The confiscated 28.7 kilograms of Methamphetamine Hydrochloride or Shabu
is ordered turned over immediately to the Dangerous Drugs Board for
destruction in accordance with the law.

The fiberglass boat with its motor engine is hereby ordered confiscated in
favor of the government and to be turned over to the Philippine National
Police, La Union Command, for use in their Bantay-Dagat operations against
all illegal seaborne activities.

SO ORDERED.[6]
Before this Court, CHUA posits that the RTC erred in (1) admitting as
competent evidence the 29 plastic packets of methamphetamine
hydrochloride since they were indubitably "forbidden fruits;" (2) granting
weight and credence to the testimonies of prosecution witnesses despite
glaring inconsistencies on material points; and in (3) appreciating conspiracy
between him and an organized syndicate in the illicit commerce of prohibited
drugs since this was not alleged in the information.

The Solicitor General traverses CHUA's contentions by asserting that: (1) the
search was licitly conducted despite the absence of search and seizure
warrants as circumstances immediately preceding to and contemporaneous
with the search necessitated and validated the police action; and (2) that
there was an effective and valid waiver of CHUA's right against unreasonable
searches and seizures since he consented to the search.

We reverse the RTC.

Enshrined in the Constitution is the inviolable right to privacy of home and

person. It explicitly ordains that people have the right to be secure in their
persons, houses, papers and effects against unreasonable searches and
seizures of whatever nature and for any purpose.[7] Inseparable, and not
merely corollary or incidental to said right and equally hallowed in and by
the Constitution, is the exclusionary principle which decrees that any
evidence obtained in violation of said right is inadmissible for any purpose in
any proceeding.[8]

The Constitutional proscription against unreasonable searches and seizures

does not, of course, forestall reasonable searches and seizure. What
constitutes a reasonable or even an unreasonable search in any particular
case is purely a judicial question, determinable from a consideration of the
circumstances involved.[9] Verily, the rule is, 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;
"otherwise such search and seizure become `unreasonable' within the
meaning of the aforementioned constitutional provision." [10] This interdiction
against warrantless searches and seizures, however, is not absolute and
such warrantless searches and seizures have long been deemed permissible
by jurisprudence[11] in instances of (1) search of moving vehicles, (2) seizure
in plain view, (3) customs searches, (4) waiver or consent searches, (5) stop
and frisk situations (Terry search),[12] and (6) search incidental to a lawful
arrest. The last includes a valid warrantless search and seizure pursuant to
an equally valid warrantless arrest, for, while as a rule, an arrest is
considered legitimate if effected with a valid warrant of arrest, the Rules of
Court recognize permissible warrantless arrests, to wit: (1) arrests in
flagrante delicto, (2) arrests effected in hot pursuit, and (3) arrests of
escaped prisoners.[13]

This Court is therefore tasked to determine whether the warrantless arrest,

search and seizure conducted under the facts of the case at bar constitute a
valid exemption from the warrant requirement. Expectedly and quite
understandably, the prosecution and the defense painted extremely
divergent versions of the incident. But this Court is certain that CHUA was
arrested and his bag searched without the benefit of a warrant.

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[14] or as recent case law[15] adverts to, personal
knowledge of facts or circumstances convincingly indicative or constitutive of
probable cause. The term probable cause had been understood to mean 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. [16] Specifically with
respect to arrests, it is such facts and circumstances which would lead a
reasonably discreet and prudent man to believe that an offense has been
committed by the person sought to be arrested.[17] In People v. Montilla,[18]
the Court acknowledged that "the evidentiary measure for the propriety of
filing criminal charges, and correlatively, for effecting warrantless arrest, has
been reduced and liberalized." Noting that the previous statutory and
jurisprudential evidentiary standard was "prima facie evidence" and that it
had been dubiously equated with probable cause, the Court explained:
[F]elicitously, those problems and confusing concepts (referring to prima
facie evidence and probable cause) 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 as well
founded belief' as to the fact of the commission of the 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." (emphasis supplied)[19]
Guided by these principles, this Court finds that there are no facts on record
reasonably suggestive or demonstrative of CHUA's participation in an
ongoing criminal enterprise that could have spurred police officers from
conducting the obtrusive search. The RTC never took the pains of pointing to
such facts, but predicated mainly its decision on the finding that "accused
was caught red-handed carrying the bagful of [s]habu when apprehended."
In short, there is no probable cause. At least in People v. Tangliben, the
Court agreed with the lower court's finding that compelling reasons (e.g.,
accused was acting suspiciously, on the spot identification by an informant
that accused was transporting prohibitive drug, and the urgency of the
situation) constitutive of probable cause impelled police officers from
effecting an in flagrante delicto arrest. 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 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 (he lacked the necessary travel documents or visa),
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,[20] confidential report and/or positive
identification by informers of courier(s) of prohibited drug and/or the time
and place where they will transport/deliver the same,[21] suspicious
demeanor or behavior[22] and suspicious bulge in the waist[23]-- 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. And despite claims by CID and BADUA that CHUA
attempted to flee, ALMOITE testified that the latter was merely walking and
oblivious to any attempt at conversation when the officers approached him.
This cast serious doubt on the truthfulness of the claim, thus:
Q How far were you when the accused put the bag on his shoulder?
A We were then very near him about three meters away from the male
person carrying the bag.
   
Q To what direction was he facing when he put the bag on his shoulder?
A To the east direction.
   
Q In relation to you, where were you.
A With the company of Sgt. Reynoso and Maj. Cid we approached the
accused and when Maj. Cid went near him, he spoke in Tagalog, English
and Ilocano which accused did not understand because he did not
respond.
   
Q When Maj. Cid was talking, what was the accused doing at that time?
A He was walking.
   
Q To what direction he was walking?
A He was walking to the east direction. (sic)
   
Q He was walking away from you or going near you?
A He was going away from us. That is why Sgt. Reynoso held the right arm
of the accused.
   
Q Was Sgt. Badua able to hold the right arm of the accused?
A Yes sir and he stopped.[24]
True, CHUA entered Philippine territory without a visa. This was not obvious
to the police. But gossamer to the officers' sense perception and view were
CHUA disembarking from a speedboat, CHUA walking casually towards the
road, and CHUA carrying a multicolored strawbag. These acts did not convey
any impression that he illegally entered Philippine shores. Neither were
these overt manifestations of an ongoing felonious activity nor of CHUA's
criminal behavior as clearly established in CID's testimony, thus:
Q Was the accused committing a crime when you introduced yourselves:
A No, sir.
   
Q No, so there was no reason for you to approach the accused because he
was not doing anything wrong?
A No, sir, that is our objective, to approach the person and if ever or
whatever assistance that we can give we will give.[25]
The search cannot therefore be denominated as incidental to an arrest.
While a contemporaneous search of a person arrested may be effected to
deliver dangerous weapons or proofs or implements used in the commission
of the crime and which search may extend to the area within his immediate
control where he might gain possession of a weapon or evidence he can
destroy,[26] a valid arrest must precede the search. The process cannot be
reversed.
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 be first a lawful arrest before a search can be made - the process
cannot be reversed.[27]
To reiterate, the search was not incidental to an arrest. There was no
warrant of arrest and the warrantless arrest did not fall under the
exemptions allowed by the Rules of Court[28] as already shown. From all
indications, the search was nothing but a fishing expedition. It is worth
mentioning here that after introducing themselves, the police officers
immediately inquired about the contents of the bag. What else could have
impelled the officers from displaying such inordinate interest in the bag but
to ferret out evidence and discover if a felony had indeed been committed by
CHUA -- in effect to "retroactively establish probable cause and validate an
illegal search and seizure."

The State then attempted to persuade this Court that there was a consented
search, a legitimate waiver of the constitutional guarantee against obtrusive
searches. It is fundamental, however, that to constitute a waiver, it must
first appear that the right exists; secondly, that the person involved had
knowledge, actual or constructive, of the existence of such a right; and
lastly, that said person had an actual intention to relinquish the right. [29]
CHUA never exhibited that he knew, actually or constructively of his right
against unreasonable searches or that he intentionally conceded the same.
This can be inferred from the manner by which the search was performed,
thus:
Q Together with your Chief Investigator, what was the first thing that you
did when you approached him (CHUA)?
A We introduced ourselves as police officers, sir.
   
Q Okey, in the first place why did you introduce yourselves?
A That is normal practice in our part, sir.
   
***
Q If it is possible . Okey (sic) now, after introducing yourselves what did
you do?
A He did not answer me and he did not utter any word,
   
Q When he did not utter any word. What else did he do?
A I asked again a question that if he can open his bag sir.
   
Q And did he understand your question when you requested him to open
his bag?
A No, sir, there is no answer.
   
Q No answer?
A Yes, sir, no answer.
   
Q And when there was no answer what did you do next?
A I used sign language sir.
   
Q Will you demonstrate to this Honorable Court how you demonstrated
that sign language of opening the bag mr. (sic) witness?
A I pointed to the zipper of the bag and then made an action like this sir.
   
***
   
SHERIFF:
  The witness demonstrating (sic) by pointing to the straw bag and then
manifesting a sign to open the zipper of the straw bag moving his right
hand from left to right or from the opening to the end of the zipper.
   
COURT: From the start of the zipper where you open it up to the end of the
zipper.
 
Witness: Yes, sir, and then I made a motion like this.
  (The witness repeating the motion described on record.)
   
COURT: Did you open that personally?
   
WITNESS:
A No, your honor.
   
Q Now, mr. (sic) witness, why did you request the accused to open the
bag?
A Because it is our duty also to inspect his belongings sir.
   
Q Why, why was it - no, I reform my question your honor. Is it normal
procedure for you to examine anybody or to request anybody to open his
bag?
A The fact that he was a foreigner, sir, it is also our duty to inspect the
baggage, it is our routine duty of a police (sic), sir.
   
Q Is that the normal duty of a police officer to request a person to open his
bag?
A yes, sir.
   
Q Okey, (sic) you did not ask the accused, mr. (sic) witness, to open his
bag?
A No, sir.
   
Q But you simply requested him to open the nag?
A Yes, sir.[30]
CHUA obviously failed to understand the events that overran and
overwhelmed him. The police officers already introduced themselves to
CHUA in three languages, but he remained completely deadpan. The police
hence concluded that CHUA failed to comprehend the three languages. When
CHUA failed to respond again to the police's request to open the bag, they
resorted to what they called "sign language." They claimed that CHUA finally
understood their hand motions and gestures. This Court disagrees. If CHUA
could not understand what was orally articulated to him, how could he
understand the police's "sign language." More importantly, it cannot logically
be inferred from his alleged cognizance of the "sign language" that he
deliberately, intelligently, and consciously waived his right against such an
intrusive search. 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 instances, the accused even
verbally replied to the request demonstrating that he also understood the
nature and consequences of such request. [31]

It was eventually discovered that the bag contained the regulated substance.
But this is a trifling matter. If evidence obtained during an illegal search
even if tending to confirm or actually confirming initial information or
suspicion of felonious activity is absolutely considered inadmissible for any
purpose in any proceeding, the same being the fruit of a poisonous tree [32]
how much more of "forbidden fruits" which did not confirm any initial
suspicion of criminal enterprise as in this case - because the police admitted
that they never harbored any initial suspicion. Casting aside the regulated
substance as evidence, the remaining evidence on record are insufficient,
feeble and ineffectual to sustain CHUA's conviction.

Indeed, the likelihood of CHUA having actually transported

methamphetamine hydrochloride cannot be quickly dispelled. But the
constitutional guarantee against unreasonable searches and seizures cannot
be so carelessly disregarded as overzealous police officers are sometimes
wont to do. Fealty to the Constitution and the rights it guarantees should be
paramount in their minds, otherwise their good intentions will remain as
such simply because they have blundered. "There are those who say that...
'the criminal is to go free because the constable has blundered.'... In some
cases this will undoubtedly be the result. But... 'there is another
consideration -- the imperative of judicial integrity.'... The criminal goes
free, if he must, but it is the law that sets him free. Nothing can destroy a
government more quickly than its failure to observe its own laws, or worse,
its disregard of the charter of its own existence."[33]

As to the averred glaring inconsistencies in the testimonies of the

prosecution witnesses, this Court considers them trivial as they refer to
insignificant details which will not affect the outcome of the case. On a
passing note, this Court calls the attention of the trial court regarding its
erroneous appreciation of conspiracy. This aggravating circumstance is
without question unsupported by the records. Conspiracy was not included in
the indictment nor raised in the pleadings or proceedings of the trial court. It
is also fundamental that conspiracy must be proven just like any other
criminal accusation, that is, independently and beyond reasonable doubt. [34]

WHEREFORE, for all the foregoing, the decision of the Regional Trial Court,
Branch 66, San Fernando, La Union in Criminal Case No. 4037 is hereby
REVERSED and SET ASIDE and accused-appellant CHUA HO SAN @ TSAY HO
SAN is hereby ACQUITTED of the crime charged, the evidence not being
sufficient to establish his guilt beyond reasonable doubt.

Costs de oficio.

SO ORDERED.

Romero, Bellosillo, Melo, Vitug, Kapunan, Mendoza, Quisumbing, Purisima,

Pardo, Buena, Gonzaga-Reyes, and Ynares-Santiago, JJ., concur.
Puno, J., no part. On official leave.
Panganiban, J., on leave.

[1]
Sec. 15. Sale, Administration, Dispensation, Delivery, Transportation and
Distribution of Regulated Drugs. - The penalty of reclusion perpetua to death
and a fine ranging from five hundred pesos to ten million pesos shall be
imposed upon any person who, unless authorized by law, shall sell,
distribute, deliver, transport or distribute any regulated drug. . .

[2]
Entitled An Act to Impose the Death Penalty on Certain Heinous Crimes,
Amending for that Purpose the Revised Penal Code, As Amended, Other
Special Penal Laws, and for Other Purposes.

[3]
Exhibit "C."

[4]
Exhibit "F." It was completed on the same day of the arrest and search.

[5]
184 SCRA 220 [1990].

[6]
Rollo, 127. Per Judge Adolfo F. Alacar.

[7]
Article III, Section 2, Constitution. This constitutional guarantee covers the
right against unlawful arrests and other forms of restraint on physical
liberty. See 1 Joaquin G. Bernas, S.J., The Constitution of the Philippines, A
Commentary 85 (1st ed. 1987)[hereafter 1 BERNAS].

[8]
Art. III, Sec. 3, Constitution.

[9]
See Valmonte v. De Villa, 178 SCRA 211, 216 [1989].

[10]
See People v. Barros, 231 SCRA 557, 565 [1994].

[11]
See Carroll v. United States, 267 US 132 [1925]; Harris v. United States,
390 US 234 [1968]; Chimel v. California, 395 US 752 [1969]; Coolidge v.
New Hampshire, 403 US 443 [1971]; Moreno v. Ago Chi, 12 Phil. 439
[1909]; People v. Veloso, 48 Phil. 168 [1925]; People v. Kagui Malasagui, 63
Phil. 221 [1963]; Papa v. Mago, 22 SCRA 857 [1968]; See also the recent
cases of People v. Encinada, 280 SCRA 72, [1997]; People v. Lacerna, 278
SCRA 561 [1997]; People v. Fernandez, 239 SCRA 174 [1994].

[12]
Terry v. Ohio, 20 L Ed 2d, 896 adopted in Posadas v. Court of Appeals,
188 SCRA 288 [1990]; See also People v. Ramos, 222 SCRA 557 [1993].

[13]
Rule 113, Sec. 5 provides: Sec. 5. -- Arrest, without a 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....

[14]
See People v. Burgos, 144 SCRA 1 [1986].

[15]
People v. Encinada, supra note 11 at 85; People v. Montilla, 285 SCRA
703 [1998] People v. Claudio, 160 SCRA 646 [1988]; People v. Maspil, Jr.,
188 SCRA 751 [1988]; People v. Lo Ho Wing, 193 SCRA 122 [1991]; People
v. Tangliben, supra note 5; Posadas v. Court of Appeals, supra note 12;
People v. Malmstedt, 198 SCRA 401 [1991].

[16]
People v. Encinada, supra note 11 at 85-86.

[17]
1 BERNAS 87. As applied to searches, probable cause refers to the
existence of facts and circumstances which could lead a reasonable 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.

[18]
Supra note 15.
[19]
People v. Montilla, supra note 15 at 720-721.

[20]
People v. Claudio, supra note 15; See also People v. Lacerna, supra note
11.

[21]
People v. Maspil, Jr., supra note 15; People v. Lo Ho Wing, supra note 15.

[22]
People v. Tangliben, supra note 5; Posadas v. Court of Appeals, supra
note 12.

[23]
People v. Malmstedt, supra note 15.

[24]
TSN, 6 March 1996, 12-13.

[25]
TSN, 22 February 1996, 19 -20.

[26]
See Preston v. US, 11 L Ed. 2d at 780-781; 376 at 367 [1964].

[27]
Malacat v. Court of Appeals, 283 SCRA 159, 175 [1997].

[28]
See People v. Aminnudin, 163 SCRA 402, 410 [1988].

[29]
See People v. Burgos, supra note 14 at 16 [1986] citing Pasion Vda. de
Garcia v. Locsin, 65 Phil 689 [1938].

[30]
TSN, 22 February 1996, pp. 19-22.

[31]
In People v. Montilla, supra note 15 at 722, the accused was asked about
the contents of the bag and he replied that they contained personal effects.
The officers then asked him to open the traveling bag and he voluntary
submitted to the search. In People v. Lacerna, supra note 11 at 575-576
[1997], the accused expressly gave his permission to have his luggage
searched. . In People v. Omaweng, 213 SCRA 462, 470 [1992] the accused
replied to the police's query for a search with "[y]ou can see the contents of
the bag but those are only clothings." In People v. Ramos, supra note 12,
the testimony of police officers that accused "voluntarily allowed himself to
be frisked and that he gave the gun to the officer" remained unrebutted. In
People v. Cuizon, 256 SCRA 325, 354 [1996], the Court validated the
consented warrantless search against accused-appellant Pua who gave
written permission to the search of his luggage, taking careful note that Pua
understood both English and Tagalog and that he had resided in Vito Cruz,
Manila. In People v. Fernandez, supra note 11 at 83, "the accused-appellant
came out of the house and gave himself up to the police, the owner of the
house turned over his luggage to said police authorities. With the
acquiescence of accused-appellant, his suitcase was searched and it yielded
the subject firearm and ammunition. He then signed and acknowledged a
Receipt certifying one homemade shotgun with one (1) live ammunition and
one (1) empty shell was confiscated from him. In People v. Kagui Malasugui,
supra note 11, Kagui voluntarily surrendered to the police authorities a
couple of bracelets belonging to the deceased victim. When asked if he had
anything else to surrendered, he, in a quaking voice answered in the
negative. The police then conducted a body search which he did not objected
to which search resulted in the production of additional personal effects
belonging to the victim. In the last two cases cited, the accused therein
unequivocally consented to the search.

[32]
See People v. Cuizon, supra note 31 at 339; People v. Rodriquez, 232
SCRA 498 [1994]; See also the concurring and dissenting separate opinion
of Chief Justice Andres R. Narvasa in People v. Malmstedt, supra note 15 at
422.

[33]
Mapp v. Ohio, 367 US 643, 659 [1961].

[34]
Dans, Jr. v. People, 285 SCRA 504, 533 [1998]; See also People v.
Hilario, 284 SCRA 344, 454 [1998].

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359 Phil. 151

FIRST DIVISION

[ G.R. No. 128277, November 16, 1998 ]

PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS.

FERDINAND GUENO Y MATA, ACCUSED-APPELLANT

DECISION

VITUG, J.:
Ferdinand Cueno y Mata pleaded "not guilty" to two separate indictments charging
him with the violation of Section 4 and of Section 8 of Republic Act 6425, otherwise
known as the Dangerous Drugs Act, as amended: in the first charge (Criminal Case
No. 37-95), appellant was accused, along with Florida Senarosa Fajardo, of having
transgressed Section 4 of the Act, and in the other (Criminal Case No. 38-95), he
was indicted for violating Section 8 of the law. The accusatory portions of the
informations read:
 In Criminal Case No. 37-95 -

"That on or about January 30, 1995, in the City of Cavite, Republic

of the Philippines and within the jurisdiction of this Honorable
Court, the above-named accused, without legal authority,
conspiring, confederating together and mutually helping one
another, did, then and there, vatfulty, unlawfully, feloniously and
knowingly sell to a poseur buyer a small brick of dried Marijuana
leaves with flowering tops with a total net weight of 30.4315
grams, a prohibited drug.

"CONTRARY TO LAW."[1]

In Criminal Case No. 38-95 -

'That on or about January 30, 1995, in the City of Cavite, Republic

of the Philippines and within the jurisdiction of this Honorable
Court, the above-named accused, without legal authority, did, then
and there, wilfully, unlawfully, feloniously and knowingly have in
his possession and control one (1) brick and twenty one (21)
plastic tea bag of dried Marijuana leaves with flowering tops with a
total net weight of 861.5842'grams, 'a prohibited drug.

"CONTRARY TO LAW"[2]

Accused Ferdinand Cueno and Florida Fajardo pleaded "not guilty" in Criminal Case
No. 37-95; Cueno likewise entered a plea of "not guilty" in Criminal Case No. 38-
95. Following the arraignment, a joint trial was conducted since the two offenses
were spawned during the same occasion.

When the reception of the evidence had concluded, the trial court, in its decision of
10 January 1997, convicted both accused (Cueno and Fajardo) in Criminal Case No.
37-95 and found accused-appellant (Cueno) in Criminal Case No. 38-95 guilty as
charged. The dispositive portions of the judgment in the two criminal cases read:

"WHEREFORE, this Court finding both accused GUILTY beyond

reasonable doubt as charged in the two (2) criminal Informations,
accordingly hereby sentences them as follows:

"In Crim. Case No. 37-95

"Accused FERDINAND CUENO and FLORIDA FAJARDO are hereby

sentenced to an indeterminate prison term of four (4) months and
twenty (20) days of arresto mayor maximum as minimum, to four
(4) years and two (2) months of prision correccional medium as
maximum, with the accessory penalties provided for by law, and to
pay the costs.

"In Crim. Case No. 38-95

"Accused FERDINAND CUENO is hereby sentenced to a penalty of

reclusion perpetua and is ordered to pay a fine of P500,000.00,
with the accessory penalties provided for by law, and to pay the
costs.
 "SO ORDERED."[3]

The versions given by the prosecution and the defense, respectively, were narrated
in good detail by the trial court, presided over by the Honorable Christopher 0.
Lock, in its appealed decision, viz-.

'The prosecution evidence showed that on January 25, 1995, an

asset accompanied P01 AVELINO CAMANTIGUE to lnocencio St.,
San Roque, Cavite City and pointed to the house of the accused
FERDINAND CUENO. Upon instructions of their commanding officer,
Police Superintendent MELCHOR RAMOS of the lst Mobile Force
Company based in Camp Pantaleon Garcia, lmus, Cavite, PO1
CAMANTIGUE together with SPO1 AQUILINO SARMIENTO and P02
EDWIN MOJICA conducted surveillance operations on the alleged
drug pushing activities of herein accused at around 9:30 in the
morning of January 26, 1995. P01 CAMANTIGUE who posed as a
newspaper vendor observed from a distance of 15 meters from the
store of FERDIE CUENO that a person was handing money to said
accused and FERDIE in turn gave something to the person who
immediately inserted the same in his pocket. CAMANTIGUE
allegedly overheard FERDIE saying: 'hindi ka lugi sa halagang
P20.00 at iyan ay malakas.' At that time SARMIENTO and MOJICA
passed by CAMANTIGUE who removed his cap as a signal that the
sale was already consummated. After this, the group returned to
their station, and reported the result of their surveillance to their
commanding officer who instructed them to apply for a search
warrant.

"On January 30, 1995 at about 9:30 in the morning, SPO1

AQUILINO SARMIENTO together with P02 EDWIN MOJICA and P01
AVELINO CAMANTIGUE proceeded to the Hall of Justice at Imus,
Cavite and applied for and were issued Search Warrant No. 023 by
Judge DOLORES L. ESPAÑOL, of the Regional Trial Court Branch
90, Dasmariñas, Cavite. Said search warrant ordered the search of
the premises of one PETER DOE alias FERDIE and the seizure of
dried marijuana leaves allegedly in the possession of aforesaid
person.

"After the search warrant was issued by Judge ESPAÑOL,

CAMANTIGUE and his companions returned to their station and
informed their Commanding Officer Police Superintendent
MELCHOR RAMOS that a search warrant has already been issued,
who hatched a plan that a buy-bust operation be conducted on the
accused first before the implementation of the search warrant. It
was agreed that P01 CAMANTIGUE will be accompanied by their
informant who will introduce the former to FERDIE as a user who is
interested in buying marijuana.

"At about 3:30 that same afternoon, a team of policemen led by

P/Supt. RAMOS, and composed of SPO1 SARMIENTO, P02 MOJICA,
P01 CAMANTIGUE, P03 FRANCISCO RAMOS together with their
informant, a certain ADO, proceeded to Cavite City, more
particularly, lnocencio St., San Roque, Cavite City, where accused
resides. Upon arrival thereat, as planned, ADO introduced
CAMANTIGUE to FERDIE as a user who wants to buy marijuana.
FERDIE at that time was standing by the door of his store which is
just an extension of the house where he was staying. After said
introduction, FERDIE asked CAMANTIGUE how much worth of
marijuana was he buying, to which CAMANTIGUE retorted that he
wanted to buy marijuana worth P150.00. FERDIE got the P150.00
from CAMANTIGUE and then called his commonlaw wife, the herein
accused FLORIDA FAJARDO alias FLORY, and instructed her to give
CAMANTIGUE marijuana worth P150.00. FLORY went inside their
house and when she returned, she handed CAMANTIGUE the
marijuana (Exhibit 'D'). CAMANTIGUE then removed his cap as a
signal to his companions that the sale has been consummated.
SPO1 SARMIENTO, P02 MOJICA and his companions approached
them and they identified themselves as policemen. They then
arrested FERDIE, and recovered from his possession were the buy
money in the amount of P150.00, consisting of a P100 bill with SN
VQ927976 and a P50.00 bill with SN NRO87791. FLORY was asked
to go out of the store, and the policemen announced to the couple
that they had with them a search warrant for the search and
seizure of marijuana in the premises of both accused. Before the
raiders proceeded to search the house of the accused, they called
for barangay officials in the area to witness the conduct of the
search. Barangay Kagawads ERNESTO ROSAL and ALFREDO
SALINAS, SK Chairman EDGAR ORDOÑEZ, Asst. Chief Barangay
Tanod JOSE DESIDERIO arrived, and together with P/Supt. RAMOS,
SPO1 SARMIENTO, P02 MOJICA and P01 CAMANTIGUE proceeded
to search the residence of the accused. Barangay Chairman
DOROTEO ICAYAN, JR. arrived when the search was in progress.
Inside the bedroom of the accused, SPO1 SARMIENTO found a
balikbayan box which contained dirty clothes, a brick of dried
flowering tops of marijuana wrapped in a newspaper with a gross
weight of 803 grams (Exhibit 'E') and twenty one (21) plastic tea
bags containing dried flowering tops of marijuana with a gross
weight of 48.5842 grams (Exhibits 'F-l' to 'F-21') together with
rolling papers. After the search, the policemen prepared a Receipt
of Property seized (Exhibit '1') which was signed by both accused
FERDINAND CUENO and FLORIDA FAJARDO, ANGELINA MATA,
mother of FERDIE, the raiding police officers, and the barangay
officials who were present when the search was made and the
ensuing discovery of marijuana inside the bedroom of the accused.
Both accused together with the seized articles were then brought
by the policemen to their headquarters in Camp Pantaleon Garcia,
Imus, Cavite. The following day, January 31, 1995, the seized
articles were brought to the NBI for laboratory examination, which
examination gave positive results for marijuana. On the same day,
the corresponding criminal complaints were filed against accused
FERDINAND CUENO and FLORIDA FAJARDO.

"The story of the defense is different.

"The defense evidence showed that at around 4:30 in the afternoon

of January 30. 1995, while accused FLORIDA FAJARDO was tending
their store located at Inocencio St., San Roque, Cavite City and
 taking care of her 1 1/2 year old daughter, JESSICA, about eight
(8) armed policemen in civilian clothes forcibly entered their house.
As she was so frightened by the sudden appearance of these
persons, she called her live-in partner and co-accused FERDINAND
CUENO, who at the time was at the back of their house, near the
residence of their neighbor JERRY LIBONGCOGON watching
children playing with spiders. When FERDIE, hearing the shouts of
FLORY, rushed to the scene and introduced himself and asked why
these persons were inside his house, he received a strong slap on
his face. FLORY, looking pale and visibly frightened by the events
she saw, held her child and just sat on their bed. FERDIE and
FLORY were brought outside where FERDIE was handcuffed. After
about 5 minutes, barangay officials came, namely, EDGIE
ORDONEZ, JOJO ROSAL and ALFREDO SALINAS. He noticed the
presence of Barangay Tanod JOSE DESIDERIO when Barangay
Captain DOROTEO ICAYAN came. FERDIE was not able to talk to
the barangay officials because they talked with the policemen
inside the house. The policemen showed the barangay officials the
search warrant which was not shown to the accused. Thereafter,
the first floor of their house was searched and policemen found
marijuana inside a box. The box and the marijuana inside does not
belong to him and he does not know where it came from. FERDIE's
sister, LORENA CUENO, who actually owns the store he and his wife
FLORY are tending, and her live-in partner EFREN CONCEPCION are
the ones occupying the first floor of their house. FERDIE and his
wife occupies one of the three (3) rooms in the second floor of the
house owned by FERDIE's mother. FERDIE's mother and
stepfather, together with his younger sister occupies the two (2)
other rooms. At the time the raid was conducted by the police on
January 30, 1995, LORENA was working in Japan as an entertainer,
and it was only EFREN who was occupying the first floor of the
house, although both accused still has access to the first floor
because one has to pass the ground floor before he can enter the
store. EFREN who is jobless and a known drug user has already
been salvaged (summarily executed by law enforcement agents)
sometime last year."[4]

Only Ferdinand Cueno appealed to this Court from the judgment of the court a quo.
While, normally, only that which meted him the sentence of reclusion perpetua
could be appealed directly to the Supreme Court, his other conviction, however, in
the other case over which the trial court imposed a lower penalty, could likewise
here be considered consistently with the ruling in People vs. Saley,[5] where this
Court had observed:

"x x x This Court has appellate jurisdiction over ordinary appeals in

criminal cases directly from the Regional Trial Courts when the
penalty imposed is reclusion perpetua or higher. The Rules of
Court, allows, however, the appeal of criminal cases involving
penalties lower than reclusion perpetua or life imprisonment under
the circumstances stated in Section 3, Rule 122, of the Revised
Rules of Criminal Procedure. Thus -

"'(c) The appeal to the Supreme Court in cases where the penalty
imposed is life imprisonment, or where a lesser penalty is imposed
 but involving offenses committed on the same occasion or arising
out of the same occurrence that gave rise to the more serious
offense for which the penalty of death or life imprisonment is
imposed shall be by filing a notice of appeal in accordance with
paragraph (a) of this Section.'"

In his brief filed in compliance with the resolution of 27 August 1997 of the Court,
appellant, through counsel, argues that -

"l. The trial court (has) erred in giving credence to the testimonies
of the prosecution witnesses; (and)

"2.    The trial court (has) erred in finding accused-appellant

Ferdinand Cueno guilty beyond reasonable doubt in Criminal Case
No. 37-95 for selling marijuana leaves and Criminal Case No. 38-95
for possessing marijuana leaves."[6]

Regrettably, the appeal must fail.

Accused-appellant assails the credibility of the police officers who have given
testimony in the two criminal cases. Unless compelling reasons are shown
otherwise, this Court, not being a trier of facts itself, rely in good part on the
assessment and evaluation by the trial court of the evidence, particularly the
attestations of witnesses, presented to it. The Court will not generally interfere with
the findings of the trial court in passing upon the credibility of the witnesses; it is
the latter court, not the appellate tribunal, which has the opportunity to see and
hear first hand the bringing up to it during trial of testimonial evidence. Here, once
again, the Court sees no reason to doubt and disturb the findings thereon of the
trial court. The inconsistencies pointed out by accused-appellant, at best to his
cause, pertain only to collateral matters and really not that relevant to the case
against him.

The totality of the evidence would indicate that the sale of prohibited drugs did take
place. The two basic elements for this charge to prosper, i.e., (a) the identity of the
buyer and the seller, the object and the consideration, and (b) the delivery of the
thing sold and the payment therefor,[7] as the Solicitor General so pointed out, had
been successfully established by the prosecution witnesses, particularly the police
officers, in their testimony during trial.

P01 Camantigue, the poseur buyer, declared that it was appellant who ordered the
production of marijuana worth P150.00 during the buy-bust operation:

"Q: What happened after the two of you arrived there?

Our informant introduced me to Ferdie, Sir, as a user and I will buy
''A:
marijuana.
xxx xxx xxx
''Q: After you were introduced, what happened?
''A: He asked me about how much will I get, Sir.
"Q: What was your reply, if any?
''A: Worth about P150.00, Sir.
"Q: After that, what happened?
''A: He called somebody named Flory, Sir.
 xxx xxx xxx
''Q: What did the woman do when she was called by Ferdie?
She was introduced to me by Ferdie as his wife, Sir, and he
"A:
instructed her to give me worth P 150. 00.
xxx xxx xxx
If this Ferdie that you are referring to is present inside this
"Q:
Courtroom, will you be able to recognize him?
''A: Yes, Sir.
Please look around and tell us if you can see Ferdie inside this
''Q:
Courtroom.
'A: He is here, Sir.
''Q: Please point to him, Mr. Witness.
He is there, Sir. (Witness pointing to a man who identified himself as
''A:
Ferdinand Cueno)."[8]
The existence of consideration and the fact of delivery of the drug bought from the
accused was confirmed by the witness:

''PROS.
LU:
Were you able to buy marijuana?
''A: Yes, Sir.
"Q: From whom did you buy marijuana?
This P150.00 was taken from me by Ferdie and then Ferdie told
''A: Flory who was then inside their house and she was told to give me
marijuana worth P150.00, Sir.
Are we to understand from you that this P150.00 was handed by
"Q:
you to Ferdie even before he called for Flory9
"A: Yes, Sir.[9]
When the article bought from the accused was later subjected to laboratory
examination by the Forensic Chemistry Division of the National Bureau of
Investigation, the drug was tested positive for, and had a total net weight of
30.4315 grams of, marijuana. The Certification,[10] dated 31 January 1995,
containing the test results, was admitted by both the prosecution and the defense
in their stipulation of facts.[11]

Appellant would want the Court to hold as being tainted with irregularity, and
therefore void, the sale of the prohibited drug since the marked money used in the
purchase of the illegal drug has not been "blottered." The argument is absurd.
Indeed, in People vs. Manahan,[12] the Court has ruled that the failure to mark the
money or to present it in evidence is not material since the matter will not
essentially disprove the sale. Even the presentation in evidence of the buy-bust
money. is not indispensable for the conviction of the accused as long as the sale
can be adequately proved in some other way by the prosecution. [13]The sale of
the prohibited drug has been succinctly described by the trial court, thus-

"Contrary to the contentions of the accused that there was no buy-

bust operation, the police officers had shown through their
testimonies that the elements of the offense with which he was
charged were present, i.e., that the accused had sold and delivered
a prohibited drug to another and that accused knew that what he
had- sold and delivered was a dangerous drug (People vs.
 Manzano, 227 SCRA 780). The established fact is that there was
marijuana taken from the accused FERDINAND CUENO pursuant to
a buy-bust operation and the same was tested positively as such.
In fact, accused did not refute the fact that the substance
recovered from him when he was arrested was marijuana, a
prohibited drug."[14]

Appellant submitted the defense of alibi, on the claim that he was not even at home
when the sale supposedly had taken place. It would be hard to buy this defense
when measured up against the positive identification made of him and the
presumption of regularity in the performance of official functions by the police
officers who conducted the operation.

Appellant would question his conviction in Criminal Case No. 38-95 allegedly
because of the illegality of the search made in his house. The arrest of appellant
has been made in the course of a buy-bust operation, thus, in flagrante delicto. A
buy-bust operation - a form of entrapment which has repeatedly been accepted to
be a valid means of arresting violators of the Dangerous Drugs Law[15] - is far
variant from an ordinary arrest. In lawful arrests, it becomes both the duty and the
right of the apprehending officers to conduct a warrantless search not only on the
person of the suspect but also in the permissible area within his reach, i.e., that
point which is within the effective control of the person arrested, or that which may
furnish him with the means of committing violence or of escaping.[16] Prosecution
witness P01 Camantigue, in this regard, has narrated:

"Q: Where was Ferdie at the time you arrived in front of his house?
''A: He was located at the side of a store by the door, Sir.
''Q: How far is that store from the house of this Ferdie?
''A: It is an extension of the house, Sir.
''Q: You are telling us that this store is part of the house of Ferdie?
xxx xxx xxx
"A: Yes, sir."[17]
Under this set-up, it becomes advisable, if not necessary, for the peace officers to
forthwith undertake a search of the house as being within the "permissible area.''

Appellant insinuates a "frame-up," in his brief, he states:

''Accused-appellant Ferdinand Gueno denied having sold marijuana

to the arresting officers. He claimed that there was no buy-bust
operation. At 4:30 P.M. January 30, 1995, he was at his neighbor's
house with Jerry Liboncogon watching the two (2) children playing
with spiders. He heard the shouts of his wife so he ran towards
home and when he arrived there, the police officers were already
inside the house. While they were conducting the search,
somebody shouted and said "eto pala, ang dami." (No reply or
rebuttal was made on this). The marijuana allegedly found by the
searching officers does not belong to him or to his wife.

"x x x                             xxx                          xxx

''Even prosecution witness Edgar Ordonez bolstered the claim of

Cueno that the marijuana found by the searching officers does not
belong to him. Ordonez declared that the kitchen was searched
 first and he cannot remember if anything was found there. Then
the dresses were searched and nothing was found. The searchers
proceeded to the store but nothing was found. He heard the driver
of the jeep (of the policemen) uttered "eto pala, ang dami." Then
he saw marijuana (TSN, April 2, 1996, pp. 3-16). This shows that
the marijuana allegedly found during the search was planted. This
declaration of Ordonez totally destroyed the case of the
prosecution. As prosecution witness, Ordonez stated facts
consistent with the guilt of accused Cueno but he also stated facts
inconsistent with the guilt of the latter. In the case of Duran vs.
Court of Appeals (71 SCRA 68), it was held that where inculpatory
facts are susceptible to two interpretations, one consistent and the
other inconsistent with the guilt of the accused, then the evidence
fails to fulfill the test of moral certainty and is insufficient to
support conviction."[18]

Verily, in order that this most-often invoked defense of ''frame up'' could possibly
prosper, the evidence therefor should be clear and convincing. Far from it, the
contrary would here appear to be the case, The details leading to the discovery of
the prohibited drug were narrated by the prosecution witnesses with no significant
inconsistencies. P01 Camantigue testified:

''Q. What part of the house of Ferdie did you search first?
''A: The first part that we searched was the bedroom of Ferdie, Sir.
xxxxxxxxx
''Q: Who actually conducted the search inside the bedroom of Ferdie?
"A: SPO1 Sarmiento, Sir.
xxxxxxxxx
"Q: Who were present?
"A: One of them was Brgy. Capt. lcayan, Sir.
'Q: Who else?
''A: Our Officer Col. Ramos and some brgy. councilmen, Sir.
"Q: Who were present inside the room?
''A: I was also one of those who were inside the room, Sir.
xxxxxxxxx
Now, what was the result of the search conducted by Aquilino
"Q:
Sarmiento inside the room?
xxxxxxxxx
SPO1 Sarmiento was able to find marijuana wrapped with one
''A:
huge piece of wrapping paper, Sir.
"PROS.
LU:
In what particular portion of the bedroom did Sarmiento find that
'Q:
marijuana?
"A: In the cabinet of their clothes, Sir."[19]
SPO1 Sarmiento, the searching officer, was unequivocal in his own testimony, he
stated: 

"Q: What part of the house did you search first?

''A: The first thing that I searched was the bed of the spouses Cueno, Sir.
 ''Q: Did you find anything?
I did not find any from there, Sir.
''A:

xxx xxx xxx

"Q: What place did you search next?
"A: The next thing that was searched was their dress cabinet, Sir.
''Q: Did you find anything there?
''A: Yes, sir.
"Q: What did you find?
''A: I found the marijuana from the dress cabinet, Sir."[20]
No ill-motive on the part of the police officers in effecting the buy-bust operation,
and the consequent search that followed, had at all been shown. The arrest of
appellant was made in the course of an entrapment, following a surveillance
operation, normally performed by police officers in the apprehension of violators of
the Dangerous Drugs Act. The Court finds itself in agreement with the Solicitor
General in this observation.-

"Nowhere in the record is there evidence that P01 Camantique was

moved by ill-will. No proof was adduced by the appellant to show
that the police officer was motivated by evil intent. Of the several
thousand residents of Cavite City, there was absolutely no reason
for the police officer to single out the appellant and hurl false
accusations against him. Truly, no person in his right senses would
be so cruel as to implicate an innocent person to a crime so serious
as to cost even his life. Rather, what prompted P01 Camantigue to
come into the open and unmask the appellant on his illegal drug
activities was his desire to do something for the eradication of the
drug menace."[21]

The Court, here again, holds that in the absence of proof of any odious intent on
the part of the police authorities to falsely impute a serious crime, such as that
made against herein appellant, the Court will not allow their testimony to be
overcome by the self-serving and uncorroborated claim of "frame-up."[22]

The confiscated drug, with a total weight of 851.5842 grams, when tested, similarly
proved to be positive for marijuana.

Following the ruling in People vs. Simon,[23] and the amendatory provisions of
Republic Act 7659, the Court finds the sentence handed down by the trial court
against appellant for Violation of Section 4, as well as of Section 8, Republic Act No.
6425, as amended, well within the legally prescribed penalties.

WHEREFORE, the DECISION appealed from is AFFIRMED. Costs against

appellant,

SO ORDERED.

Davide, Jr. (Chairman), Bellosillo, Panganiban and Quisumbing JJ., concur.

[1] Rollo, p.29.

[2] Rollo, p. 30.

[3] Rollo, pp. 40-41.

[4] Rollo, pp. 32-36.

[5] G.R. 121179, 02 July 1998.

[6] Rollo, p. 62.

[7] People vs. Rigodon, 238 SCRA 27; People vs. Zervoulakos, 241 SCRA 625.

[8] TSN, 26 July 1995, pp, 30-34.

[9] TSN, 26 July 1995, pp. 40-41.

[10] Exhibit "l", p.143, Record.

[11] Rollo, p. 31.

[12] 238 SCRA 141.

[13] People vs. Cuachon, s38 SCRA 540.

[14] Rollo, p. 37.

[15] People vs. Juatan, 260 SCRA 532.

[16] People vs. Lua, 256 SCRA 539.

[17] TSN, 26 July 1995, p. 30

[18] Brief for the Appellant, Rollo, pp. 89-91.

[19] TSN, 31 August 1995, pp. 9-15.

[20] TSN, 10 October 1995, pp.18-19.

[21] Appellee's Brief, p. 137, Rollo.

[22] People vs. Ponsica, 230 SCRA 87.

[23] 234 SCRA 555.

Source: Supreme Court E-Library | Date created: October 02, 2014

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Supreme Court E-Library

246 Phil. 424

FIRST DIVISION

[ G.R. No. 74869, July 06, 1988 ]

PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. IDEL

AMINNUDIN Y AHNI, DEFENDANT-APPELLANT.

DECISION

CRUZ, J.:
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 finding what
looked like 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 Hasson, 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 pair 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.[16] 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 oven 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 follows:

"Q You mentioned an intelligence report, you mean with respect to the
coming of Idel Aminnudin on June 25, 1984?

   
"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 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 a "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
caught red-handed, as a 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.

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
and the Bill of Rights for the protection of the liberty of every individual in the
realm, including the basest of criminals. The Constitution covers with the mantle of
its protection the innocent and the guilty alike against any manner of high-
handedness from the authorities, however praiseworthy their intentions.

Those who are supposed to enforce the law are not justified in disregarding the
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 criminals
should escape than that the government should play an ignoble part." It is simply
not allowed in the free society to violate a law to enforce another, especially if the
law violated is the Constitution itself.

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.

Griño-Aquino, J., Pls. see attached dissenting opinion.

[1] Rollo, p. 29.

[2] Ibid., p. 2.

[3] Original Records, p. 6.

[4] Ibid., p. 20.

[5] "Exh. 1," Original Records, p. 204.

[6] Original Records, p. 26.

[7] TSN, Sept. 19, 1984, p. 5; Oct. 25, 1984, p. 31.

[8] TSN, Oct. 25, 1984, p. 29.

[9] TSN, Sept. 19, 1984, pp. 6-7.

[10] TSN, Sept. 5, 1984, pp. 8-10.

[11] TSN, Aug. 15, 1985, p. 3.

[12] Ibid., pp. 8-9; 19-20.

[13] Id., pp. 10 & 13.

[14] Brief for the Appellant, p. 22.

[15] Rollo, p. 28.

[16] TSN, Aug. 15, 1985, pp. 17-18; 22-24.

[17] Ibid., p. 29.

[18] Id., p. 4.

[19] Rollo, p. 28.

[20] TSN, Oct. 25, 1984, p. 31.

[21] TSN, Sept. 19, 1984, p. 19.

[22] TSN, Oct. 25, 1984, p. 12.

[23] TSN, Oct. 25, 1984, pp. 31-33.

[24] 65 SCRA 336.

[25] People v. Rubio, 142 SCRA 329; People v. Madarang, 147 SCRA 123; People v.
Sarmiento, 147 SCRA 252; People v. Cerelegia; 147 SCRA 538; People v.
Fernando, G.R. No. L-68409, December 1, 1987.

DISSENTING

GRIÑO-AQUINO, J.,

I respectfully dissent. 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). I vote to affirm the judgment of the trial court
finding him guilty of illegally transporting marijuana.

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306 Phil. 359

THIRD DIVISION

[ G.R. No. 110995, September 05, 1994 ]

PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. ALVARO

SAYCON Y BUQUIRAN, ACCUSED-APPELLANT.

DECISION

FELICIANO, J.:
Alvaro Saycon was charged with violating Section 15, Article III of R.A. No. 6425 as
amended, the Dangerous Drugs Act, in an information which read as follows:
 "That on or about the 8th day of July 1992, in the City of
Dumaguete, Philippines, and within the jurisdiction of this
Honorable Court, the said accused, not being then authorized by
law, did, then and there wilfully, unlawfully and feloniously, deliver
and transport[--] from Manila to Dumaguete City approximately 4
grams of methamphetam[ine] hydrochloride commonly known as
‘shabu,’ a regulated drug.

Contrary to Sec. 15, Art. III of R.A. 6425 (Dangerous Drugs Act) as
amended."[1] (Brackets supplied)

At arraignment, Alvaro Saycon entered a plea of not guilty.

After trial, the trial court rendered, on 15 June 1993, a judgment of conviction. The
court found Saycon guilty beyond reasonable doubt of having transported four (4)
grams of methamphetamine hydrochloride ("shabu") and sentenced him to life
imprisonment and to pay a fine of P20,000.00.[2]
The relevant facts as found by the trial court were gleaned from the testimonies of
the arresting officers Senior Police Officers Winifredo S. Noble and Ruben Laddaran
of the Narcotics Command, PNP; Police Officer Emmanuelito C. Lajot of the
Philippine Coastguard Office in Dumaguete City; and Forensic Analyst N.G. Salinas
of the PNP Crime Laboratory. The trial court summarized the facts in the following
manner:

"x x x that on or about 8 July 1992, at about 6:00 in the morning,

the Coastguard personnel received information from NARCOM
agent Ruben Laddaran that a suspected "shabu" courier by the
name of Alvaro Saycon was on board the MV Doña Virginia, which
was arriving at that moment in Dumaguete City. Upon receipt of
the information, the Coastguard chief officer CPO Tolin, instructed
them to intercept the suspect. A combined team of NARCOM agents
and Philippine Coastguard personnel consisting of CPO Tolin, a
certain Miagme, and Senior Police Officers Ruben Laddaran and
Winifredo Noble of NARCOM posted themselves at the gate of Pier
1.

The MV Doña Virginia docked at 6:00 a.m. that same morning at

Pier 1 in Dumaguete City. Alvaro Saycon alighted from the boat
carrying a black bag and went through the checkpoint manned by
the Philippine Coastguard where he was identified by police officer
Winifredo Noble of NARCOM. Saycon was then invited to the
Coastguard Headquarters at the Pier area. He willingly went with
them. At the headquarters, the coastguard asked Saycon to open
his bag, and the latter willingly obliged. In it were personal
belongings and a maong wallet. Inside that maong wallet, there
was a Marlboro pack containing the suspected "shabu". When
police officer Winifredo Noble asked Saycon whether the Marlboro
pack containing the suspected "shabu" was his, Saycon merely
bowed his head. Then Saycon, his bag and the suspected "shabu"
were brought to the NARCOM office for booking. When Alvaro
Saycon was arrested, the NARCOM agents did not have a warrant
of arrest."[3]
After the arrest of Saycon, the suspected drug material taken from him was
brought to the PNP Crime Laboratory in Cebu City for chemical examination.
The PNP's Forensic Analyst declared in court that she had conducted an
examination of the specimens which had been taken from appellant Saycon and
submitted to the Crime Laboratory on 9 July 1992. Her findings were, basically, that
the specimens she examined weighing 4.2 grams in total, consisted of the
regulated drug methamphetamine hydrochloride, more widely known as
"shabu."[4]
For his part, appellant Saycon denied ownership of the "shabu" taken from his black
bag. He claimed that upon disembarking from the ship at the pier in Dumaguete
City, he was met by two (2) unfamiliar persons who snatched his bag from him.
Thereafter, he was taken to the office of the port collector, at gunpoint, and there
his bag was searched by four (4) men despite his protests. The four (4) persons
were later identified by appellant Saycon as Noble, Sixto, Edjec and Ruben
Laddaran. When appellant Saycon asked why his belongings were being searched,
the four (4) answered that there was "shabu" inside his bag. After the search of his
bag, appellant continued, he was shown a small wallet purportedly taken from his
black bag which contained "shabu." Appellant Saycon was then detained at the
Dumaguete City Jail.[5]
In his appeal before this Court seeking reversal of the decision of the court a quo
finding him guilty of the crime charged, Saycon contends that the search of his bag
was illegal because it had been made without a search warrant and that, therefore,
the "shabu" discovered during the illegal search was inadmissible in evidence
against him.
It is not disputed that the arresting officers were not armed with a search warrant
or a warrant of arrest when they searched Saycon's bag and thereafter effected his
arrest.
The relevant constitutional provisions are set out in Sections 2 and 3 [2], Article III
of the 1987 Constitution which read as follows:

"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
witness as he may produce, and particularly describing the place to
be searched and the persons or things to be seized.

Sec. 3. x x x

(2) Any evidence obtained in violation of this or the preceding

section shall be inadmissible for any purpose in any proceeding."

The general rule, therefore, is that the search and seizure must be carried out
through or with a judicial warrant; otherwise, such search and seizure becomes
"unreasonable" within the meaning of the above constitutional provisions.[6] The
evidence secured in the process of search and seizure -- i.e., the "fruits" thereof --
will be inadmissible in evidence "for any purpose in any proceeding."[7]
The requirement that a judicial warrant must be obtained prior to the carrying out
of a search and seizure is, however, not absolute. "There are certain exceptions
recognized in our law," the Court noted in People v. Barros.[8] The exception which
appears most pertinent in respect of the case at bar is that relating to the search of
moving vehicles.[9] In People v. Barros, the Court said:

"Peace officers may lawfully conduct searches of moving vehicles --

automobiles, trucks, etc. -- without need of a warrant, it not being
practicable to secure a judicial warrant before searching a vehicle,
since such vehicle can be quickly moved out of the locality or
jurisdiction in which the warrant may be sought. (People v. Bagista,
supra; People v. Lo Ho Wing, supra) In carrying out warrantless
searches of moving vehicles, however, peace officers are limited to
routine checks, that is, the vehicles are neither really searched nor
their occupants subjected to physical or body searches, the
examination of the vehicles being limited to visual inspection. In
Valmonte v. De Villa (178 SCRA 211 [1989]), the Court stated:

'[N]ot 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.' (Citations omitted)

When, however, 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 the contents or cargo of the
vehicle are or have been instruments or the subject matter or the
proceeds of some criminal offense. (People v. Bagista, supra;
Valmonte v. de Villa, 185 SCRA 665 [1990]).

While the analogy is perhaps not perfect, we consider that appellant Saycon stands
in the same situation as the driver or passenger of a motor vehicle that is stopped
by police authorities and subjected to an extensive search. In this situation, the
warrantless search and arrest of appellant Saycon would be constitutionally
permissible only if the officer conducting the search had reasonable or probable
cause to believe, before the search, that Saycon who had just disembarked from
the MV Doña Virginia upon arrival of that vessel at 6:00 a.m. of 8 July 1992 at Pier
I of Dumaguete city, was violating some law or that the contents of his luggage
included some instrument or the subject matter or the proceeds of some criminal
offense.
It is important to note that unlike in the case of crimes like, e.g., homicide, murder,
physical injuries, robbery or rape which by their nature involve physical, optically
perceptible, overt acts, the offense of possessing or delivering or transporting some
prohibited or regulated drug is customarily carried out without any external signs or
indicia visible to police officers and the rest of the outside world. Drug "pushers" or
couriers do not customarily go about their enterprise or trade with some external
visible sign advertising the fact that they are carrying or distributing or transporting
prohibited drugs. Thus, the application of the rules in Section 5 (a) and (b), Rule
133 of the Rules of Court needs to take that circumstance into account. The Court
has had to resolve the question of valid or invalid warrantless arrest or warrantless
search or seizure in such cases by determining the presence or absence of a
reasonable or probable cause, before the search and arrest, that led the police
authorities to believe that such a felony (possessing or transporting or delivering
prohibited drugs) was then in progress. In Barros, the Court listed the kinds of
causes which have been characterized as probable or reasonable cause supporting
the legality and validity of a warrantless search and a warrantless arrest in cases of
this type:

"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 (People v. Claudio, 160 SCRA 646
[1988]); (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
(People v. Maspil, 188 SCRA 751 [1990]); (3) Narcom agents were
informed or "tipped off" by an undercover "deep penetration" agent
that prohibited drugs would be brought into the country on a
particular airline flight on a given date (People v. Lo Ho Wing,
supra); (4) 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 (People v.
Malmstedt, 198 SCRA 401 [1991]); and (5) Narcom agents had
received confidential information that a woman having the same
physical appearance as that of the accused would be transporting
marijuana (People v. Bagista, supra.)."

Close examination of the record of the case at bar shows that there did exist
reasonable or probable cause to believe that appellant Alvaro Saycon would be
carrying or transporting prohibited drugs upon arriving in Dumaguete City on the
MV Doña Virginia on 8 July 1992. This probable cause in fact consisted of two (2)
parts. Firstly, Senior Police Officer Winifredo Noble had testified in court that the
NARCOM Agents had, approximately three (3) weeks before 8 July 1992, conducted
a test-buy which confirmed that appellant Saycon was indeed engaged in
transporting and selling "shabu." The police authorities did not, on that occasion,
arrest Alvaro Saycon, but what should be noted is that the identity of Saycon as a
drug courier or drug distributor was established in the minds of the police
authorities.[10] Secondly, the arresting officers testified that they had received
confidential information that very early morning of 8 July 1992, Alvaro Saycon
would probably be on board the MV Doña Virginia which was scheduled to arrive in
Dumaguete City at 6:00 a.m. on 8 July 1992, probably carrying "shabu" with him.
In respect of the first element of the probable cause here involved, the testimony of
Police Officer Winifredo Noble had not been denied or rebutted by the defense; as it
happened, Officer Noble was not even cross-examined on this point by defense
counsel.
In respect of the second element of the probable cause here involved, appellant
Saycon contended that the testimonies of the prosecution witnesses showed that
the NARCOM Agents knew three (3) weeks before 8 July 1992 that the MV Doña
Virginia would be arriving and that he would probably be on board that vessel. It
was argued by Saycon that the police authorities should have procured, and had
the time to procure, the necessary judicial warrants for search and arrest. Saycon
also sought to underscore a supposed confusion in the testimonies of NARCOM
Officer Winifredo Noble and Coastguard Officer Lajot relating to who, as between
the NARCOM agent and the Coastguard elements, had informed the other that
appellant would probably be arriving on board the MV Doña Virginia. The relevant
portion of NARCOM Agent Winifredo Noble's testimony includes the following:

"Q:  Despite the lapse of three (3) weeks, more or less, from
acquiring knowledge through this informant, did you not secure the
necessary search warrant and warrant of arrest on the effect(s)
and person of the subject Alvaro Saycon?

A:    All the time we were only informed by the Coastguard that
this certain fellow in the name of Alvaro Saycon is travelling
through and through from Manila to Dumaguete will be carrying
shabu from Manila to Dumaguete and we could not ascertain (with)
the time when he will be at the pier area.

Q:   You have not answered my question. My question is: Despite

the lapse of more than three (3) weeks upon being informed by
your informer that this Alvaro Saycon, the accused in this case, has
been a courier from time to time of prohibited drugs, did you not
bother to secure the necessary warrant: search as well as the
arrest?

A:    As I said earlier, we could not obtain the necessary search

warrant to that effect because we do not know or ascertain when
Alvaro Saycon will arrive [from] Manila. On that particular morning,
we were informed by the Coastguard that Doña Virginia would be
arriving and they told us that probably this suspect will be among
the passengers, so you better come over and (to) identify the
subject.”[11](Emphases supplied)

Upon the other hand, Coastguard Police Officer Emmanuelito Lajot, Jr. testified in
the following way:

"Q:  What time were you in your office?

A:    Before 6:00 o'clock, I was there.

x x x  x x x           x x x

Q:   While you were there, did you receive any communication?

A:    Yes.

Q:   What communication was that?

A:    That a certain Alvaro Saycon was on board MV Doña Virginia

arriving at 6:00 o'clock in the morning?

Q:   Who gave you that information?

 A:    Ruben Laddaran(a).

Q:   Who is this Ruben Laddaran?

A:    NARCOM Agent."[12] (Emphases supplied)

If there was any confusion or uncertainty in the testimonies of NARCOM Officer

Noble and Coastguard Officer Lajot, that confusion was a minor detail. It was in any
case clarified by NARCOM Officer Noble's explanation that after the NARCOM
Command had received information appellant Saycon would be transporting drugs
from Manila to Dumaguete City, they advised the Coastguard that they (the
Narcotics Command) wanted to set up a checkpoint at Pier I at Dumaguete City
because appellant Saycon could be on board one of the vessels arriving in
Dumaguete City. The Coastguard in turn informed the NARCOM Officers of the
arrival of the MV Doña Virginia and assisted the NARCOM Officers in their operation
that morning of 8 July 1992.
The record shows that the NARCOM Officers were uncertain as to the precise date
and time appellant Saycon would arrive from Manila; all they knew was that Saycon
would be taking a boat from Manila to Dumaguete City Pier.[13] The MV Doña
Virginia docked at the Port of Pier I of Dumaguete City between 6:00 and 6:30 in
the morning of 8 July 1992. Earlier on that same morning, the NARCOM Officers
received more specific information that appellant Saycon could be on board the MV
Doña Virginia which was arriving that morning.[14] Clearly, the NARCOM Agents
had to act quickly but there was not enough time to obtain a search warrant or a
warrant of arrest. It was realistically not possible for either the NARCOM Agents or
the Coastguard Officers to obtain a judicial search warrant or warrant of arrest in
the situation presented by the case at bar.[15]
The Court considers, therefore, that a valid warrantless search had been conducted
by the NARCOM and Coastguard Officers of the "black bag" of appellant Saycon that
morning of 8 July 1992 at the checkpoint nearby the docking place of the MV Doña
Virginia and at the office of the Coastguard at Dumaguete City. It follows that the
warrantless arrest of appellant Saycon which ensued forthwith, was also valid and
lawful, since the police had determined he was in fact carrying or transporting
"shabu." The further consequence is that the four (4) grams of "shabu" obtained
from his maong wallet found inside his black bag was lawfully before the court a
quo. We agree with the court a quo that the evidence before the latter proved
beyond reasonable doubt that appellant Saycon had been carrying with him "shabu"
at the time of his search and arrest and his guilt of the offense charged was
established beyond reasonable doubt.
In view of the foregoing, the decision of the trial court dated 15 June 1993, in
Criminal Case No. 10325, should be affirmed, but the penalty properly imposable
upon appellant Alvaro Saycon must be reduced to imprisonment for an
indeterminate period ranging from six (6) months of arresto mayor as minimum to
six (6) years of prision correccional as maximum, and the fine of P20,000.00 must
be deleted. This reduction of penalty is required by the provisions of Section 20,
Article IV of R.A. No. 6425, as last amended by Section 17, of R.A. No. 7659
(effective 13 December 1993), as construed and given retroactive effect in People
v. Martin Simon (G.R. No. 93028, 29 July 1994) considering that the amount of
"shabu" here involved (four [4] grams) is obviously less than the 200 grams of
"shabu" cut-off quantity established in the amended Section 20 of the Dangerous
Drugs Act.
WHEREFORE, for all the foregoing, the decision of the trial court in Criminal Case
No. 10325, is hereby AFFIRMED, with the MODIFICATIONS, however, that appellant
shall suffer imprisonment for an indeterminate period ranging from six (6) months
of arresto mayor as minimum to six (6) years prision correccional as maximum, and
that the fine of P20,000.00 shall be DELETED. No pronouncement as to costs.
SO ORDERED.

Romero, Melo, and Vitug, JJ., concur.

Bidin, J., on leave.

[1] RTC Decision, p. 1; Rollo p. 26

[2] RTC Decision, p. 6; Rollo p. 36.
[3] RTC Decision pp. 2-4; Rollo pp. 32-34.
[4] TSN, Testimony of Mutchit Salinas, 8 February 1993, pp. 8-9.
[5] RTC Decision, p. 5; Rollo, p. 35.
[6] Pita v. Court of Appeals, 178 SCRA 362 (1989).
[7] People v. Zapanta, 195 SCRA 200 (1991); People v. Dendana, 190 SCRA 538
(1990); People v. Aminnudin, 163 SCRA 402 (1988).
[8] G.R. No. 90640, 29 March 1994.
[9] See People v. Bagista, 214 SCRA 63 (1992); People v. Rodriguez, 205 SCRA
791 (1992); People v. Lo Ho Wing, 193 SCRA 122 (1991); Manipon v.
Sandiganbayan, 143 SCRA 267(1986).
[10] TSN, Testimony of SPO1 Winifredo Noble, 14 December 1992, pp. 20-21.
[11] TSN, 14 December 1992, pp. 15-16.
[12] TSN, 15 December 1992, p. 5.
[13] TSN, Testimony of SPO2 Ruben Laddaran, 14 December 1992, p. 24.
[14] TSN, Testimony of SPO1 Winifredo Noble, 14 December 1992, pp. 15-17;
Appellee's Brief, p. 3.
[15] This particular factor serves to distinguish the case of People v. Aminnudin,
163 SCRA 402 (1988), from the case at bar; see in this connection, People v.
Maspil, 188 SCRA 751 at 762 (1990). See also People v. Tangliben, 184 SCRA 220
at 225-226 (1990).
In Aminnudin, Mr. Justice Cruz stressed that the police authorities had
received the "tip" from "a reliable and regular informer" that Aminnudin would be
arriving in Iloilo City by boat with marijuana. The testimony of the prosecution
witnesses had varied in respect of the time that they had received that "tip:" one
stated that it was received two (2) days before the arrest; another "two (2)
weeks;" and a third "weeks before June 25." (People v. Aminnudin, 163 SCRA at
406). Cruz, J., said:
 "The present case presented no such urgency. From the
conflicting declarations of the PC witnesses, it is clear that they had at
least two weeks 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.’ (Emphases supplied; 163 SCRA at 409)

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258 Phil. 838

EN BANC

[ G.R. No. 83988, September 29, 1989 ]

RICARDO C. VALMONTE AND UNION OF LAWYERS AND ADVOCATES

FOR PEOPLE'S RIGHTS (ULAP), PETITIONERS, VS. GEN. RENATO DE
VILLA AND NATIONAL CAPITAL REGION DISTRICT COMMAND,
RESPONDENTS.

DECISION

PADILLA, J.:
This is a petition for prohibition with preliminary injunction and/or temporary
restraining order, seeking the declaration of checkpoints in Valenzuela, Metro
Manila or elsewhere, as unconstitutional and the dismantling and banning of the
same or, in the alternative, to direct the respondents to formulate guidelines in the
implementation of checkpoints for the protection of the people.
Petitioner Ricardo C. Valmonte sues in his capacity as citizen of the Republic,
taxpayer, member of the Integrated Bar of the Philippines (IBP), and resident of
Valenzuela, Metro Manila:  while petitioner Union of Lawyers and Advocates for
People's Rights (ULAP) sues in its capacity as an association whose members are all
members of the IBP.
The factual background of the case is as follows:
On 20 January 1987, the National Capital Region District Command (NCRDC) was
activated pursuant to Letter of Instruction 02787 of the Philippine General
Headquarters, AFP, with the mission of conducting security operations within its
area of responsibility and peripheral areas, for the purpose of establishing an
effective territorial defense, maintaining peace and order, and providing an
atmosphere conducive to the social, economic and political development of the
National Capital Region.[1] As part of its duty to maintain peace and order, the
NCRDC installed checkpoints in various parts of Valenzuela, Metro Manila.
Petitioners aver that, because of the installation of said checkpoints, the residents
of Valenzuela are worried of being harassed and of their safety being placed at the
arbitrary, capricious and whimsical disposition of the military manning the
checkpoints, considering that their cars and vehicles are being subjected to regular
searches and check-ups, especially at night or at dawn, without the benefit of a
search warrant and/or court order.  Their alleged fear for their safety increased
when, at dawn of 9 July 1988.  Benjamin Parpon, a supply officer of the Municipality
of Valenzuela, Bulacan, was gunned down allegedly in cold blood by the members
of the NCRDC manning the checkpoint along McArthur Highway at Malinta,
Valenzuela, for ignoring and/or refusing to submit himself to the checkpoint and for
continuing to speed off inspite of warning shots fired in the air.  Petitioner Valmonte
also claims that, on several occasions, he had gone thru these checkpoints where
he was stopped and his car subjected to search/check-up without a court order or
search warrant.
Petitioners further contend that the said checkpoints give the respondents a blanket
authority to make searches and/or seizures without search warrant or court order in
violation of the Constitution;[2] and instances have occurred where a citizen, while
not killed, had been harassed.
Petitioners' concern for their safety and apprehension at being harassed by the
military manning the checkpoints are not sufficient grounds to declare the
checkpoints as per se illegal.  No proof has been presented before the Court to
show that, in the course of their routine checks, the military indeed committed
specific violations of petitioners' right against unlawful search and seizure or other
rights.
In a case filed by the same petitioner organization.  Union of Lawyers and
Advocates for People's Right (ULAP) vs. Integrated National Police,[3] it was held
that individual petitioners who do not allege that any of their rights were violated
are not qualified to bring the action, as real parties in interest.
The constitutional right against unreasonable searches and seizures is a personal
right invocable only by those whose rights have been infringed,[4] or threatened to
be infringed.  What constitutes a reasonable or unreasonable search and seizure in
any particular case is purely a judicial question, determinable from a consideration
of the circumstances involved.[5]
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.[6]
Where, for example, the officer merely draws aside the curtain of a vacant vehicle
which is parked on the public fair grounds,[7] or simply looks into a vehicle,[8] or
flashes a light therein,[9] 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 or 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 shirt 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, 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.
Finally, on 17 July 1988, military and police checkpoints in Metro Manila were
temporarily lifted and a review and refinement of the rules in the conduct of the
police and military manning the checkpoints was ordered by the National Capital
Regional Command Chief and the Metropolitan Police Director.[10]
WHEREFORE, the petition is DISMISSED.
SO ORDERED.
Fernan, C.J., Narvasa, Melencio-Herrera, Gutierrez, Jr., Paras, Feliciano, Gancayco,
Bidin, Cortes, Grino-Aquino, Mediladea, and Regalado, JJ., concur.
Cruz, J., see dissent.
Sarmiento, J., I dissent. Please see dissenting opinion.
[1] Comment of Respondents, Rollo, p. 32
[2] Article III, Section 2, 1987 Constitution provides:
The right of the people to be secure in their persons, houses, papers, and effects
against unreasonable searches and seizures of whatever nature and for any
purpose shall be inviolable, and no search warrant or warrant of arrest shall issue
except upon probable cause to be determined personally by the judge after
examination under oath or affirmation of the complainant and the witnesses he may
produce, and particularly describing the place to be searched and the persons or
things to be seized.
[3] G.R. No. 80432, Minute Resolution dated 8 March 1988
[4] §52, 79 C.J.S. 810-811
[5] §8, 79 C.J.S. 786
[6] U.S. v. Robinwitz, N.Y., 70 S.Crt. 430, 339 U.S. 56, 94 L.Ed. 653; Harries v.
U.S., Okl., 67 S.Ct. 1098 & 331 U.S. 145, 94 L.Ed. 1871; Martin v. U.S., C.A. Va.,
183 F2d 436:  66, 79 C.J.S., 835-836
[7] Ibid, citing the case of People v. Case, 190 MW 289, 220 Mich, 379, 27 A.L.R.
686
[8] Ibid, citing the case of State v. Gaina, 97 SE 62, 111 S.C. 174, 3 A.L.R. 1500
[9] Ibid, citing the case of Rowland v. Commonwealth, 259 SW 33, 202 Rq 92
[10] Comment, Rollo, pp. 25-26

DISSENTING OPINION
CRUZ, J.:
I dissent. The sweeping statements in the majority opinion are as dangerous as the
checkpoints it would sustain and fraught with serious threats to individual liberty.
The bland declaration that individual rights must yield to the demands of national
security ignores the fact that the Bill of Rights was intended precisely to limit the
authority of the State even if asserted on the ground of national security. What is
worse is that the searches and seizures are peremptorily pronounced to be
reasonable even without proof of probable cause and much less the required
warrant. The improbable excuse is that they are aimed at "establishing an effective
territorial defense, maintaining peace and order, and providing an atmosphere
conducive to the social, economic and political development of the National Capital
Region." For these purposes, every individual may be stopped and searched at
random and at any time simply because he excites the suspicion, caprice, hostility
or malice of the officers manning the checkpoints, on pain of arrest or worse, even
being shot to death, if he resists.
I have no quarrel with a policeman flashing a light inside a parked vehicle on a dark
street as a routine measure of security and curiosity. But the case at bar is
different. Military officers are systematically stationed at strategic checkpoints to
actively ferret out suspected criminals by detaining and searching any individual
who in their opinion might impair “the social, economic and political development of
the National Capital Region." It is incredible that we can sustain such a measure.
And we are not even under martial law.
Unless we are vigilant of our rights, we may find ourselves back to the dark era of
the truncheon and the barbed wire, with the Court itself a captive of its own
complaisance and sitting at the death-bed of liberty.

DISSENTING OPINION
SARMIENTO, J.:
I join Justice Isagani Cruz in his dissent, delivered so straightforwardly and
eloquently. I am agreed that the existence alone of checkpoints makes search done
therein, unreasonable and hence, repugnant to the Constitution.
The Charter says that the people enjoy the right of security of person, home, and
effects. (CONST., art. III, sec. 2.) It is also the bedrock -- the right of the people to
be left alone -- on which the regime of law and constitutionalism rest. It is not, as
the majority would put it, a matter of "occasional inconveniences, discomfort and
even irritation." (Resolution, 4.) To say that it is, is -- so I submit -- to trivialize the
plain command of the Constitution.
Checkpoints, I further submit, are things of martial rule, and things of the past.
They first saw the light of day by virtue of General Order No. 66 (AUTHORIZING
THE CHIEF OF CONSTABULARY TO ESTABLISH CHECKPOINTS, UPDATE LISTS OF
WANTED PERSONS AND CONDUCT DRAGNET OPERATIONS AND FOR OTHER
PURPOSES), a martial law issuance, as amended by General Order No. 67
(AMENDING AND AMPLIFYING PARAGRAPH 7 OF GENERAL ORDER NO. 66 DATED
SEPTEMBER 12, 1980), yet another martial law issuance. (See O.G. 4224-4226;
4226-4227 [Aug., 1983].) They are, so I strongly submit, repressive measures, the
same measures against which we had fought so painstakingly in our quest for
liberty, a quest that ended at EDSA and a quest that terminated a dictatorship. How
soon we forget.
While the right against unreasonable searches and seizures, as my brethren
advance, is a right personal to the aggrieved party, the petitioners, precisely, have
come to Court because they had been, or had felt, aggrieved. I submit that in that
event, the burden is the State's, to demonstrate the reasonableness of the search.
The petitioners, Ricardo Valmonte in particular, need not, therefore, have illustrated
the "details of the incident" (Resolution, supra, 4) in all their gore and
gruesomeness.
In any event, the absence alone of a search warrant, as I have averred, makes
checkpoint searches unreasonable, and by itself, subject to constitutional
challenges. (Supra.) As it is, "checkpoints" have become "search warrants" unto
themselves -- a roving one at that.
That "[n]ot all searches and seizures are prohibited," the majority points out, is
fine. And so is “a reasonable search is not to be determined by any fixed formula
but is to be resolved according to the facts of each case." (Supra) But the
question, exactly, is: Is (are) the search(es) in this case reasonable? I submit that
it(they) is(are) not, for one simple reason: No search warrant has been issued by a
judge.
I likewise do not find this case to be a simple matter of an "officer merely draw(ing)
aside the curtain of a vacant vehicle … or simply look(ing) (supra) there, "or
flash(ing) a light therein." (Supra) What we have here is Orwell’s Big Brother
watching every step we take and every move we make.
As it also is, "checkpoints" are apparently, State policy. The American cases the
majority refers to involve routine checks compelled by "probable cause". What we
have here, however, is not simply a policeman on the beat but armed, men, CAFGU
or Alsa Masa, who hold the power of life or death over the citizenry, who fire with
no provocation and without batting an eyelash. They likewise shoot you simply
because they do not like your face. I have witnessed actual incidents.
Washington said that militia can not be made to dictate the terms for the nation. He
can not be anymore correct here.
"Between the inherent right of the state to protect its existence ... and on
individual’s right against a warrantless search, which is reasonably conducted," so
my brethren go on, the former shall prevail. (Supra.) First, this is the same lie that
the hated despot foisted on the Filipino people. It is a serious mistake to fall for it a
second time around. Second, the checkpoint searches herein are unreasonable:
There was no warrant.
A final word. After twenty years of tyranny, the dawn is upon us. The country is
once again the "showcase of democracy" in Asia. But if in many cases, it has been
"paper democracy", let this Court anyway bring to pass its stand, and make liberty
in the land, a living reality.
I vote then, to grant the petition.

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424 Phil. 263

FIRST DIVISION

[ G.R. No. 136292, January 15, 2002 ]

RUDY CABALLES Y TAIÑO, PETITIONER, VS. COURT OF APPEALS AND

PEOPLE OF THE PHILIPPINES, RESPONDENTS.

DECISION

PUNO, J.:

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 Taiño, 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 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

(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. x x x 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 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."
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 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 x x x, 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. x x x." (emphasis 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 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.
 
  x x x                                    x x x                                 x x x
 
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.
 
  x x x                                    x x x                                 x x x
 
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 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.

SO ORDERED.

Davide, Jr., C.J., (Chairman), Kapunan, Pardo and Ynares-Santiago, JJ.,

concur.

[1]
Penned by Associate Justice Ruben T. Reyes, with Salome A. Montoya and
Eloy R. Bello, Jr., JJ., concurring; Annex A, Petition; Rollo, pp. 32-45.

[2]
Annex B, id.; Ibid., p. 48.

[3]
Original Record, p. 37.

[4]
Rollo, pp. 33-36.

[5]
Penned by Judge Jose Catral Mendoza; Original Record, pp. 187-194.

[6]
Rollo, p. 45.

[7]
Original Record, pp. 193-194.

[8]
People vs. Figueroa, 248 SCRA 679 (1995); Morfe vs. Mutuc, et al., 22
SCRA 424 (1968); Davis vs. United States, 328 U.S. 582.

[9]
Obra, et al. vs. CA, et al., 317 SCRA 594 (1999); People vs. Bagista, 214
SCRA 63 (1992); Padilla vs. CA, et al., 269 SCRA 402 (1997); People vs. Lo
Ho Wing, et al., 193 SCRA 122 (1991); Coolidge vs. New Hampshire, 403
U.S. 443.

[10]
People vs. Escaño, et al., 323 SCRA 754 (2000); Aniag, Jr. vs. Comelec,
237 SCRA 424 (1994); People vs. Saycon, 236 SCRA 325 (1994); People vs.
Exala, 221 SCRA 494 (1993); Valmonte vs. de Villa, 178 SCRA 211 (1989);
Carroll vs. United States, 267 U.S. 132.

[11]
People vs. Montilla, 285 SCRA 703 (1998); People vs. Cuizon, 256 SCRA
325 (1996); Mustang Lumber vs. CA, et al., 257 SCRA 430 (1996); People
vs. Ramos, 222 SCRA 557 (1993); People vs. Omaweng, 213 SCRA 462
(1992).

[12]
People vs. Salayao, 262 SCRA 255 (1996); Posadas vs. Court of Appeals,
188 SCRA 288 (1990) citing Terry vs. Ohio, 20 L. Ed. 2d 896.

[13]
People vs. de Gracia, 233 SCRA 716 (1994) citing People vs. Malmstedt,
198 SCRA 401 (1991) and Umil, et al. vs. Ramos, et al., 187 SCRA 311
(1990).

[14]
Posadas vs. CA, et al., supra note 12, citing People vs. CFI of Rizal, 101
SCRA 86 (1996).

[15]
Padilla vs. CA, et al., supra note 9, citing United States vs. Rem, 984 F 2d
806 ; United States vs. McCoy, 977 F 2d 706; United States vs. Rusher, 966
F 2d 868; United States vs. Parker, 928 F 2d 365.

[16]
Asuncion vs. CA, et al., 302 SCRA 490 (1999); People vs. Lo Ho Wing,
supra note 9.

[17]
Almedia-Sanchez vs. United States, 37 L.ed. 2d 596; Carrol vs. United
States, supra note 10.

[18]
People vs. Malmstedt, supra note 13.

[19]
People vs. Valdez, 304 SCRA 140 (1999).

[20]
People vs. Barros, 231 SCRA 557 (1994); United States vs. Robinwitz, 94
L. ed. 653; Martin vs. United States, 183 F 2d 436.

[21]
People vs. Exala, supra note 10; Valmonte vs. de Villa, supra note 10.

[22]
The Court has held in a case that checkpoints may also be regarded as
measures to thwart plots to destabilize the government, in the interest of
public security. At the cost of occasional inconvenience, discomfort and even
irritation to the citizen, the checkpoints during abnormal times, when
conducted within reasonable limits, are part of the price we pay for an
orderly society and a peaceful community. Valmonte vs. de Villa, supra.
[23]
People vs. Escaño, supra note 10, citing U.S. vs. Martinez-Fuerte, 428
U.S. 543.

[24]
Valmonte vs. de Villa, supra note 10, citing People vs. Case, 27 A.L.R.
686.

[25]
Id., citing State vs. Gaina, 3 A.L.R. 1500.

[26]
Id., citing Rowland vs. Commonwealth, 259 S.W. 33.

[27]
People vs. Barros, supra note 20.

[28]
People vs. Lacerna, 278 SCRA 561 (1997).

[29]
People vs. Escaño, supra note 10.

[30]
932 F. 2d 377 cited in Hermann, Search and Seizure Checklists, 1994
ed., p. 246.

[31]
Obra, et al. vs. CA, et al., supra note 9; People vs. Bagista, supra note 9.

[32]
People vs. Barros, supra note 27.

[33]
People vs. Lacerna, supra note 28.

[34]
TSN, January 31, 1991, pp. 9-10.

[35]
TSN, August 9, 1990, p. 3.

[36]
308 SCRA 432 (1999).

[37]
People vs. Gonzales, G.R. No. 121877, September 12, 2001; People vs.
Valdez, supra note 19; People vs. Malmstedt, supra note 13; People vs.
Tangliben, 184 SCRA 220 (1990); People vs. Maspil, 188 SCRA 751 (1990);
People vs. Bagista, supra note 9.

[38]
People vs. Doria, 301 SCRA 668 (1999).

[39]
Exhibit E; Original Record, p. 104.

[40]
People vs. Musa, 217 SCRA 597 (1993); People vs. Evaristo, 216 SCRA
431 (1992); Harris vs. United States, 390 U.S. 234.

[41]
68 Am Jur 2d Searches and Seizures, §135.

[42]
Supra, §136.

[43]
Schneckloth vs. Bustamonte, 412 U.S. 218.

[44]
United States vs. Barahona, 990 F. 2d 412.
[45]
United States vs. Lopez, 911 F. 2d 1006.

[46]
United States vs. Nafzger, 965 F. 2d 213.

[47]
United States vs. Tillman, 963 F. 2d 137; Florida vs. Royer, 460 U.S.
491; United States vs. Mendenhall, 446 U.S. 544.

[48]
TSN, August 9, 1990, pp. 2-3.

[49]
People vs. Chua Ho San, supra note 36.

[50]
302 SCRA 490 (1999).

[51]
278 SCRA 561 (1997).

[52]
256 SCRA 325 (1996).

[53]
285 SCRA 703 (1998).

[54]
213 SCRA 462 (1992).

[55]
People vs. Figueroa, 335 SCRA 249 (2000).

[56]
TSN, January 31, 1991, p. 10.

[57]
231 SCRA 557 (1994).

[58]
144 SCRA 1 (1986).

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443 Phil. 506

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.

DECISION

PUNO, J.:

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 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.

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 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.

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.

x x x.”[21] (emphasis 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] (emphasis supplied)
Appellant then faults the trial court for appreciating and taking into account
the object and documentary evidence of the prosecution despite the latter’s
failure to formally offer them. Absent any formal offer, she argues that they
again must be deemed inadmissible.

The contention is untenable. 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.[23] All the documentary and object evidence in this case were properly
identified, presented and marked as exhibits in court, including the bricks of
marijuana.[24] Even without their formal offer, therefore, the prosecution can
still establish the case because witnesses properly identified those exhibits,
and their testimonies are recorded.[25] Furthermore, appellant’s counsel had
cross-examined the prosecution witnesses who testified on the exhibits. [26]

Appellant also assails the credibility of the testimonies of the prosecution

witnesses. She first cites the inconsistency between the testimony of SPO1
Marlon Gamotea, who said that it was SPO2 Antonio who opened the black
bag 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 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 experience.
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 falsely against the accused, courts are inclined to uphold
this presumption.[29] In this case, no evidence has been presented to suggest
any improper motive on the part of the police enforcers in arresting the
appellant.

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. [30] It has to be
substantiated by clear and convincing evidence.[31] 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. Hence, we reject her defense.

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 of Article II, Section 4 of R.A. No. 6425 in relation to R.A. No. 7659,
and sentencing her to an imprisonment of reclusion perpetua and to pay a
fine of two million pesos is hereby AFFIRMED.

SO ORDERED.

Panganiban, Sandoval-Gutierrez, Corona, and Carpio Morales, JJ., concur.

[1]
Criminal Case No. 9384.

[2]
Information, Original Records, p. 1; Rollo, p. 4.

[3]
A male passenger was seated at the back of the tricycle driver.
[4]
Exhibit E.

[5]
Decision, Criminal Case No. 9484, pp. 5-6; Rollo, pp. 21-22.

[6]
Appellant’s Brief, p. 5; Rollo, p. 44.

[7]
Art. III, Sec. 2, 1987 Constitution.

[8]
People v. Aruta, 288 SCRA 626 (1998).

[9]
The following cases are recognized in our juriprudence: warrantless search
incidental to a lawful arrest; seizure of evidence in “plain view;” consented
warrantless search; customs search; stop and frisk; and exigent and
emergency circumstances.

[10]
People v. Barros, 231 SCRA 557 (1994).

[11]
Ibid.

[12]
People v. Lacerna, 278 SCRA 561 (1997).

[13]
People v. Claudio, 160 SCRA 646 (1988).

[14]
People v. Tangliben, 184 SCRA 220 (1990).

[15]
People v. Maspil, Jr., 188 SCRA 751 (1990).

[16]
People v. Malmsteadt, 198 SCRA 401 (1991).

[17]
People v. Lo Ho Wing, 193 SCRA 122 (1991).

[18]
People v. Saycon, 236 SCRA 325 (1994).

[19]
People v. Balingan, 241 SCRA 277 (1995).

[20]
People v. Valdez, 304 SCRA 140 (1999).

[21]
Rule 113, Section 5, Revised Rules of Criminal Procedure.

[22]
Decision, p.3; Rollo, p. 19.

[23]
Tabuena v. Court of Appeals, 196 SCRA 650 (1991).

[24]
Exhibits “D-1” and series, TSN, August 15, 1997; TSN, October 22, 1997,
pp. 2-6.

[25]
People v. Mate, 103 SCRA 484 (1981).

[26]
People v. Napat-a, 179 SCRA 403 (1989).

[27]
People v. Inocencio, 229 SCRA 517 (1994).
[28]
People v. Sy Bing Yok, 309 SCRA 28 (1999).

[29]
People v. Johnson, 348 SCRA 526 (2000).

[30]
Ibid.

[31]
People v. Balmoria, 287 SCRA 687 (1998).

Source: Supreme Court E-Library | Date created: February 18, 2015

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361 Phil. 595

EN BANC

[ G.R. No. 125299, January 22, 1999 ]

PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. FLORENCIO

DORIA Y BOLADO, AND VIOLETA GADDAO Y CATAMA @ "NENETH,"
ACCUSED-APPELLANTS.

DECISION

PUNO, J.:
On December 7, 1995, accused-appellants Florencio Doria y Bolado and Violeta
Gaddao y Catama @ "Neneth" were charged with violation of Section 4, in relation
to Section 21 of the Dangerous Drugs Act of 1972.[1] The information reads:

"That on or about the 5th day of December, 1995 in the City of

Mandaluyong, Philippines, a place within the jurisdiction of this
Honorable Court, the above-named accused, conspiring,
confederating and mutually helping and aiding one another and
without having been authorized by law, did, then and there
willfully, unlawfully and feloniously sell, administer, deliver and give
away to another eleven (11) plastic bags of suspected marijuana
fruiting tops weighing 7,641.08 grams in violation of the above-
 cited law.

CONTRARY TO LAW."[2]

The prosecution contends the offense was committed as follows: In November

1995, members of the North Metropolitan District, Philippine National Police (PNP)
Narcotics Command (Narcom), received information from two (2)  civilian
informants (CI) that one "Jun" was engaged in illegal drug activities in Mandaluyong
City. The Narcom agents decided to entrap and arrest "Jun" in a buy-bust
operation. As arranged by one of the CI's, a meeting between the Narcom agents
and "Jun" was scheduled on December 5, 1995 at E. Jacinto Street in Mandaluyong
City.

On December 5, 1995, at 6:00 in the morning, the CI went to the PNP

Headquarters at EDSA, Kamuning, Quezon City to prepare for the buy-bust
operation. The Narcom agents formed Team Alpha composed of P/Insp. Nolasco
Cortes as team leader and PO3 Celso Manlangit, SPO1 Edmund Badua and four (4)
other policemen as members. P/Insp. Cortes designated PO3 Manlangit as the
poseur-buyer and SPO1 Badua as his back-up, and the rest of the team as
perimeter security. Superintendent Pedro Alcantara, Chief of the North Metropolitan
District PNP Narcom, gave the team P2,000.00 to cover operational expenses. From
this sum, PO3 Manlangit set aside P1,600.00-- a one thousand peso bill and six (6)
one hundred peso bills[3]-- as money for the buy-bust operation. The market price
of one kilo of marijuana was then P1,600.00. PO3 Manlangit marked the bills with
his initials and listed their serial numbers in the police blotter.[4]  The team rode in
two cars and headed for the target area.

At 7:20 of the same morning, "Jun" appeared and the CI introduced PO3 Manlangit
as interested in buying one (1) kilo of marijuana. PO3 Manlangit handed "Jun" the
marked bills worth P1,600.00. "Jun" instructed PO3 Manlangit to wait for him at the
corner of Shaw Boulevard and Jacinto Street while he got the marijuana from his
associate.[5]  An hour later, "Jun" appeared at the agreed place where PO3
Manlangit, the CI and the rest of the team were waiting. "Jun" took out from his
bag an object wrapped in plastic and gave it to PO3 Manlangit. PO3 Manlangit
forthwith arrested "Jun" as SPO1 Badua rushed to help in the arrest. They frisked
"Jun" but did not find the marked bills on him. Upon inquiry, "Jun" revealed that he
left the money at the house of his associate named "Neneth."[6] "Jun" led the
police team to "Neneth's" house nearby at Daang Bakal.

The team found the door of "Neneth's" house open and a woman inside. "Jun"
identified the woman as his associate.[7] SPO1 Badua asked "Neneth" about the
P1,600.00 as PO3 Manlangit looked over "Neneth's" house. Standing by the door,
PO3 Manlangit noticed a carton box under the dining table. He saw that one of the
box's flaps was open and inside the box was something wrapped in plastic. The
plastic wrapper and its contents appeared similar to the  marijuana earlier "sold" to
him by "Jun." His suspicion aroused, PO3 Manlangit entered "Neneth's" house and
took hold of the box. He peeked inside the box and found that it contained ten (10)
bricks of what appeared to be dried marijuana leaves.

Simultaneous with the box's discovery, SPO1 Badua recovered the marked bills
from "Neneth."[8] The policemen arrested "Neneth." They took "Neneth" and "Jun,"
together with the box, its contents and the marked bills and turned them over to
the investigator at headquarters. It was only then that the police learned that "Jun"
is Florencio Doria y Bolado while "Neneth" is Violeta Gaddao y Catama. The one (1)
brick of dried marijuana leaves recovered from "Jun" plus the ten (10) bricks
recovered from "Neneth's" house were examined at the PNP Crime Laboratory.[9] 
The bricks, eleven (11) in all, were found to be dried marijuana fruiting tops of
various weights totalling 7,641.08 grams.[10]

The prosecution story was denied by accused-appellants Florencio Doria and Violeta
Gaddao.  Florencio Doria, a 33-year old carpenter, testified that on December 5,
1995, at 7:00 in the morning, he was at the gate of his house reading a tabloid
newspaper.  Two men appeared and asked him if he knew a certain "Totoy."  There
were many "Totoys" in their area and as the men questioning him were strangers,
accused-appellant denied knowing any "Totoy."  The men took accused-appellant
inside his house and accused him of being a pusher in their community.  When
accused-appellant denied the charge, the men led him to their car outside and
ordered him to point out the house of "Totoy."  For five (5) minutes, accused-
appellant stayed in the car.  Thereafter, he gave in and took them to "Totoy's"
house.

Doria knocked on the door of "Totoy's" house but no one answered.  One of the
men, later identified as PO3 Manlangit, pushed open the door and he and his
companions entered and looked around the house for about three minutes. 
Accused-appellant Doria was left standing at the door. The policemen came out of
the house and they saw Violeta Gaddao carrying water from the well. He asked
Violeta where "Totoy" was but she replied he was not there.  Curious onlookers and
kibitzers were, by that time, surrounding them.  When Violeta entered her house,
three men were already inside. Accused-appellant Doria, then still at the door,
overheard one of the men say that they found a carton box.  Turning towards them,
Doria saw a box on top of the table. The box was open and had something inside.
PO3 Manlangit ordered him and Violeta to go outside the house and board the car.
They were brought to police headquarters where they were investigated.

Accused-appellant Doria further declared that his co-accused, Violeta Gaddao, is the
wife of his acquaintance, Totoy Gaddao.  He said that he and Totoy Gaddao
sometimes drank together at the neighborhood store.  This closeness, however, did
not extend to Violeta, Totoy's wife.[11]

Accused-appellant Violeta Gaddao, a 35-year old rice vendor, claimed that on

December 5, 1995, she was at her house at Daang Bakal, Mandaluyong City where
she lived with her husband and five (5) children, namely, Arvy, aged 10, Arjay,
aged 8, the twins Raymond and Raynan, aged 5, and Jason, aged 3.  That day,
accused-appellant woke up at 5:30 in the morning and bought pan de sal for her
children's breakfast.  Her husband, Totoy, a housepainter, had left for Pangasinan
five days earlier.  She woke her children and bathed them.  Her eldest son, Arvy,
left for school at 6:45 A.M.  Ten minutes later, she carried her youngest son,
Jayson, and accompanied Arjay to school.  She left the twins at home leaving the
door open.  After seeing Arjay off, she and Jayson remained standing in front of the
school soaking in the sun for about thirty minutes.  Then they headed for home. 
Along the way, they passed the artesian well to fetch water.  She was pumping
water when a man clad in short pants and denim jacket suddenly appeared and
grabbed her left wrist.  The man pulled her and took her to her house. She found
out later that the man was PO3 Manlangit.

Inside her house were her co-accused Doria and three (3) other persons.  They
asked her about a box on top of the table.  This was the first time she saw the box.
The box was closed and tied with a piece of green straw.  The men opened the box
and showed her its contents.  She said she did not know anything about the box
and its contents.

Accused-appellant Violeta Gaddao confirmed that her co-accused Florencio Doria

was a friend of her husband, and that her husband never returned to their house
after he left for Pangasinan.  She denied the charge against her and Doria and the
allegation that marked bills were found in her person.[12]

After trial, the Regional Trial Court, Branch 156, Pasig City convicted the accused-
appellants. The trial court found the existence of an "organized/syndicated crime
group" and sentenced both accused-appellants to death and pay a fine of
P500,000.00 each. The dispositive portion of the decision reads as follows:

"WHEREFORE, the guilt of accused, FLORENCIO DORIA y BOLADO

@ "Jun" and VIOLETA GADDAO y CATAMA @ "Neneth" having been
established beyond reasonable doubt, they are both CONVICTED of
the present charge against them.

According to the amendatory provisions of Sec. 13 of Republic Act

No. 7659 which cover violations of Sec. 4 of Republic Act No. 6425
and which was exhaustively discussed in People v. Simon, 234
SCRA 555, the penalty imposable in this case is reclusion perpetua
to death and a fine ranging from five hundred thousand pesos to
ten million pesos. Taking into consideration, however, the
provisions of Sec. 23, also of Republic Act No. 7659 which explicitly
state that:

'The maximum penalty shall be imposed if the offense

was committed by any person who belongs to an
organized/syndicated crime group.

An organized/syndicated crime group means a group of

two or more persons collaborating, confederating or
mutually helping one another for purposes of gain in the
commission of any crime.'

the Court is hereby constrained to sentence (hereby sentences)

said FLORENCIO DORIA y BOLADO @ "Jun" and VIOLETA GADDAO
y CATAMA @ "Neneth" to DEATH and to pay a fine of Five Hundred
Thousand Pesos (P500,000.00) each without subsidiary
imprisonment in case of insolvency and to pay the costs.

The confiscated marijuana bricks (7,641.08 grams) shall be turned

over to the Dangerous Drugs Board, NBI for destruction in
accordance with law.

Let a Commitment Order be issued for the transfer of accused

 DORIA from the Mandaluyong City Jail to the New Bilibid Prisons,
Muntinlupa City and also for accused GADDAO for her transfer to
the Correctional Institute for Women, Mandaluyong City.

Let the entire records of this case be forwarded immediately to the

Supreme Court for mandatory review.

SO ORDERED."[13]

Before this Court, accused-appellant Doria assigns two errors, thus:

"I

THE COURT A QUO GRAVELY ERRED IN GIVING WEIGHT TO THE

TESTIMONY OF THE WITNESSES FOR THE PROSECUTION WHEN
THEIR TESTIMONIES WERE SHOT WITH DISCREPANCIES,
INCONSISTENCIES AND THAT THE CORPUS DELICTI OF THE
MARIJUANA ALLEGEDLY TAKEN FROM APPELLANT WAS NOT
POSITIVELY IDENTIFIED BY THE POSEUR-BUYER.

II

THE COURT A QUO GRAVELY ERRED IN ADMITTING AS EVIDENCE

THE MARIJUANA FRUITINGS FOUND INSIDE THE CARTON BOX AS
THESE WERE OBTAINED THROUGH A WARRANTLESS SEARCH AND
DOES NOT COME WITHIN THE PLAIN VIEW DOCTRINE."[14]

Accused-appellant Violeta Gaddao contends:

"I

THE LOWER COURT ERRED IN FINDING APPELLANT GUILTY

DESPITE THE INCREDIBILITY OF THE POLICE VERSION OF THE
MANNER THE ALLEGED BUY-BUST AS CONDUCTED.

II

THE PNP OFFICERS' VERSIONS AS TO WHERE THE BUY-BUST

MONEY CAME FROM ARE INCONSISTENT WITH ONE ANOTHER AND
ALSO REEKS WITH INCREDIBILITY.

III

THE LOWER COURT ERRED IN FINDING APPELLANT GUILTY AND

SENTENCING HER TO DEATH DESPITE THE MANIFESTLY
IRRECONCILABLE INCONSISTENCIES IN THE VERSIONS OF THE
POLICE AS TO HOW AND BY WHOM THE ALLEGED BUY-BUST
MONEY WAS RECOVERED FROM HER, WHICH IN CONSEQUENCE
RESULTS IN THE EVIDENCE, OF RETRIEVAL FROM HER OF THE
SAME, NEBULOUS, AT BEST, NIL, AT WORST.

IV

THE LOWER COURT ERRED IN UPHOLDING THE VALIDITY OF THE

WARRANTLESS SEARCH LEADING TO THE SEIZURE OF THE
 MARIJUANA ALLEGEDLY FOUND INSIDE THE HOUSE OF ACCUSED-
APPELLANT."[15]

The assigned errors involve two principal issues: (1) the validity of the buy-bust
operation in the apprehension of accused-appellant Doria; and (2) the validity of
the warrantless arrest of accused-appellant Gaddao, the search of her person and
house, and the admissibility of the pieces of evidence obtained therefrom.

Accused-appellants were caught by the police in a buy-bust operation. A buy-bust

operation is a form of entrapment employed by peace officers as an effective way of
apprehending a criminal in the act of the commission of an offense.[16] Entrapment
has received judicial sanction when undertaken with due regard to constitutional
and legal safeguards.[17]

Entrapment was unknown in common law. It is a judicially created twentieth-

century American doctrine that evolved from the increasing use of informers and
undercover agents in the detection of crimes, particularly liquor and narcotics
offenses.[18] Entrapment sprouted from the doctrine of estoppel and the public
interest in the formulation and application of decent standards in the enforcement
of criminal law.[19] It also took off from a spontaneous moral revulsion against
using the powers of government to beguile innocent but ductile persons into lapses
that they might otherwise resist.[20]

In the American jurisdiction, the term "entrapment" has a generally negative

meaning because it is understood as the inducement of one to commit a crime not
contemplated by him, for the mere purpose of instituting a criminal prosecution
against him.[21] The classic definition of entrapment is that articulated by Justice
Roberts in Sorrells v. United States,[22] the first Supreme Court decision to
acknowledge the concept: "Entrapment is the conception and planning of an offense
by an officer, and his procurement of its commission by one who would not have
perpetrated it except for the trickery, persuasion or fraud of the officer."[23] It
consists of two (2) elements: (a) acts of persuasion, trickery, or fraud carried out
by law enforcement officers or the agents to induce a defendant to commit a crime;
and (b) the origin of the criminal design in the minds of the government officials
rather than that of the innocent defendant, such that the crime is the product of the
creative activity of the law enforcement officer.[24]

It is recognized that in every arrest, there is a certain amount of entrapment used

to outwit the persons  violating or about to violate the law. Not every deception is
forbidden. The type of entrapment the law forbids is the inducing of another to
violate the law, the "seduction" of an otherwise innocent person into a criminal
career.[25] Where the criminal intent originates in the mind of the entrapping
person and the accused is lured into the commission of the offense charged in order
to prosecute him, there is entrapment and no conviction may be had.[26] Where,
however, the criminal intent originates in the mind of the accused and the criminal
offense is completed, the fact that a person acting as a decoy for the state, or
public officials furnished the accused an opportunity for commission of the offense,
or that the accused is aided in the commission of the crime in order to secure the
evidence necessary to prosecute him, there is no entrapment and the accused must
be convicted.[27] The law tolerates the use of decoys and other artifices to catch a
criminal.
Entrapment is recognized as a valid defense[28] that can be raised by an accused
and partakes of the nature of a confession and avoidance.[29] It is a positive
defense. Initially, an accused has the burden of providing sufficient evidence that
the government induced him to commit the offense. Once established, the burden
shifts to the government to show otherwise.[30] When entrapment is raised as a
defense, American federal courts and a majority of state courts use the "subjective"
or "origin of intent" test laid down in Sorrells v. United States[31] to determine
whether entrapment actually occurred. The focus of the inquiry is on the accused's
predisposition to commit the offense charged, his state of mind and inclination
before his initial exposure to government agents.[32] All relevant facts such as the
accused's mental and character traits, his past offenses, activities, his eagerness in
committing the crime, his reputation, etc., are considered to assess his state of
mind before the crime.[33] The predisposition test emphasizes the accused's
propensity to commit the offense rather than the officer's misconduct[34] and
reflects an attempt to draw a line between a "trap for the unwary innocent and the
trap for the unwary criminal."[35] If the accused was found to have been ready and
willing to commit the offense at any favorable opportunity, the entrapment defense
will fail even if a police agent used an unduly persuasive inducement.[36] Some
states, however, have adopted the "objective" test.[37] This test was first
authoritatively laid down in the case of Grossman v. State[38] rendered by the
Supreme Court of Alaska.  Several other states have subsequently adopted the test
by judicial pronouncement or legislation.  Here, the court considers the nature of
the police activity involved and the propriety of police conduct.[39] The inquiry is
focused on the inducements used by government agents, on police conduct, not on
the accused and his predisposition to commit the crime.  For the goal of the defense
is to deter unlawful police conduct.[40] The test of entrapment is whether the
conduct of the law enforcement agent was likely to induce a normally law-abiding
person, other than one who is ready and willing, to commit the offense;[41] for
purposes of this test, it is presumed that a law-abiding person would normally resist
the temptation to commit a crime that is presented by the simple opportunity to act
unlawfully.[42] Official conduct that merely offers such an opportunity is
permissible, but overbearing conduct, such as badgering, cajoling or importuning,
[43] or appeals to sentiments such as pity, sympathy, friendship or pleas of
desperate illness, are not.[44] Proponents of this test believe that courts must
refuse to convict an entrapped accused not because his conduct falls outside the
legal norm but rather because, even if his guilt has been established, the methods
employed on behalf of the government to bring about the crime "cannot be
countenanced."  To some extent, this reflects the notion that the courts should not
become tainted by condoning law enforcement improprieties.[45] Hence, the
transactions leading up to the offense, the interaction between the accused and law
enforcement officer and the accused's response to the officer's inducements, the
gravity of the crime, and the difficulty of detecting instances of its commission are
considered in judging what the effect of the officer's conduct would be on a normal
person.[46]

Both the "subjective" and "objective" approaches have been criticized and objected
to.  It is claimed that the "subjective" test creates an "anything goes" rule, i.e., if
the court determines that an accused was predisposed to commit the crime
charged, no level of police deceit, badgering or other unsavory practices will be
deemed impermissible.[47] Delving into the accused's character and predisposition
obscures the more important task of judging police behavior and prejudices the
accused more generally.  It ignores the possibility that no matter what his past
crimes and general disposition were, the accused might not have committed the
particular crime unless confronted with inordinate inducements.[48] On the other
extreme, the purely "objective" test eliminates entirely the need for considering a
particular accused's predisposition.  His predisposition, at least if known by the
police, may have an important bearing upon the question of whether the conduct of
the police and their agents was proper.[49] The undisputed fact that the accused
was a dangerous and chronic offender or that he was a shrewd and active member
of a criminal syndicate at the time of his arrest is relegated to irrelevancy.[50]

Objections to the two tests gave birth to hybrid approaches to entrapment.  Some
states in the United States now combine both the "subjective" and "objective" tests.
[51] In Cruz v. State,[52] the Florida Supreme Court declared that the
permissibility of police conduct must first be determined. If this objective test is
satisfied, then the analysis turns to whether the accused was predisposed to
commit the crime.[53] In Baca v. State,[54] the New Mexico Supreme Court
modified the state's entrapment analysis by holding that "a criminal defendant may
successfully assert a defense of entrapment, either by showing lack of
predisposition to commit the crime for which he is charged, or, that the police
exceeded the standards of proper investigation.[55] The hybrid approaches
combine and apply the "objective" and "subjective" tests alternatively or
concurrently.  

As early as 1910, this Court has examined the conduct of law enforcers while
apprehending the accused caught in flagrante delicto.  In United States v. Phelps,
[56] we acquitted the accused from the offense of smoking opium after finding that
the government employee, a BIR personnel, actually induced him to commit the
crime in order to prosecute him.  Smith, the BIR agent, testified that Phelps'
apprehension came after he overheard Phelps in a saloon say that he liked smoking
opium on some occasions.  Smith's testimony was disregarded.  We accorded
significance to the fact that it was Smith who went to the accused three times to
convince him to look for an opium den where both of them could smoke this drug.
[57] The conduct of the BIR agent was condemned as "most reprehensible."[58] In
People v. Abella,[59] we acquitted the accused of the crime of selling explosives
after examining the testimony of the apprehending police officer who pretended to
be a merchant.  The police officer offered "a tempting price, xxx a very high one"
causing the accused to sell the explosives.  We found that there was inducement,
"direct, persistent and effective" by the police officer and that outside of his
testimony, there was no evidence sufficient to convict the accused.[60] In People v.
Lua Chu and Uy Se Tieng,[61] we convicted the accused after finding that there
was no inducement on the part of the law enforcement officer. We stated that the
Customs secret serviceman smoothed the way for the introduction of opium from
Hongkong to Cebu after the accused had already planned its importation and
ordered said drug.  We ruled that the apprehending officer did not induce the
accused to import opium but merely entrapped him by pretending to have an
understanding with the Collector of Customs of Cebu to better assure the seizure of
the prohibited drug and the arrest of the surreptitious importers.[62]

It was also in the same case of People v. Lua Chu and Uy Se Tieng[63] we first laid
down the distinction between entrapment vis-a-vis instigation or inducement. 
Quoting 16 Corpus Juris,[64] we held:

"ENTRAPMENT AND INSTIGATION. -- While it has been said that

the practice of entrapping persons into crime for the purpose of
instituting criminal prosecutions is to be deplored, and while
instigation, as distinguished from mere entrapment, has often been
condemned and has sometimes been held to prevent the act from
being criminal or punishable, the general rule is that it is no
defense to the perpetrator of a crime that facilities for its
commission were purposely placed in his way, or that the criminal
act was done at the 'decoy solicitation' of persons seeking to
expose the criminal, or that detectives feigning complicity in the
act were present and apparently assisting in its commission.
Especially is this true in that class of cases where the offense is one
of a kind habitually committed, and the solicitation merely
furnishes evidence of a course of conduct. Mere deception by the
detective will not shield defendant, if the offense was committed by
him, free from the influence or instigation of the detective.  The
fact that an agent of an owner acts as a supposed confederate of a
thief is no defense to the latter in a prosecution for larceny,
provided the original design was formed independently of such
agent; and where a person approached by the thief as his
confederate notifies the owner or the public authorities, and, being
authorised by them to do so, assists the thief in carrying out the
plan, the larceny is nevertheless committed.  It is generally held
that it is no defense to a prosecution for an illegal sale of liquor
that the purchase was made by a 'spotter,' detective, or hired
informer; but there are cases holding the contrary."[65]

The distinction above-quoted was reiterated in two (2) decisions of the Court of
Appeals. In People v. Galicia,[66] the appellate court declared that "there is a wide
difference between entrapment and instigation." The instigator practically induces
the would-be accused into the commission of the offense and himself becomes a
co-principal.  In entrapment, ways and means are resorted to by the peace officer
for the purpose of trapping and capturing the lawbreaker in the execution of his
criminal plan.[67] In People v. Tan Tiong,[68] the Court of Appeals further declared
that "entrapment is no bar to the prosecution and conviction of the
lawbreaker."[69]

The pronouncement of the Court of Appeals in People v. Galicia was affirmed by this
Court in People v. Tiu Ua.[70] Entrapment, we further held, is not contrary to public
policy.  It is instigation that is deemed contrary to public policy and illegal.[71]

It can thus be seen that the concept of entrapment in the American jurisdiction is
similar to instigation or inducement in Philippine jurisprudence.  Entrapment in the
Philippines is not a defense available to the accused.  It is instigation that is a
defense and is considered an absolutory cause.[72] To determine whether there is
entrapment or instigation, our courts have mainly examined the conduct of the
apprehending officers, not the predisposition of the accused to commit the crime. 
The "objective" test first applied in United States v. Phelps has been followed in a
series of similar cases.[73] Nevertheless, adopting the "objective" approach has not
precluded us from likewise applying the "subjective" test.  In People v. Boholst,[74]
we applied both tests by examining the conduct of the police officers in a buy-bust
operation and  admitting evidence of the accused's membership with the notorious
and dreaded Sigue-Sigue Sputnik Gang.  We also considered accused's previous
convictions of other crimes[75] and held that his opprobrious past and membership
with the dreaded gang strengthened the state's evidence against him.  Conversely,
the evidence that the accused did not sell or smoke marijuana and did not have any
criminal record was likewise admitted in People v. Yutuc[76] thereby sustaining his
defense that led to his acquittal.

The distinction between entrapment and instigation has proven to be very material
in anti-narcotics operations.  In recent years, it has become common practice for
law enforcement officers and agents to engage in buy-bust operations and other
entrapment procedures in apprehending drug offenders.  Anti-narcotics laws, like
anti-gambling laws are regulatory statutes.[77] They are rules of convenience
designed to secure a more orderly regulation of the affairs of society, and their
violation gives rise to crimes mala prohibita.[78] They are not the traditional type
of criminal law such as the law of murder, rape, theft, arson, etc. that deal with
crimes mala in se or those inherently wrongful and immoral.[79] Laws defining
crimes mala prohibita condemn behavior directed, not against particular individuals,
but against public order.[80] Violation is deemed a wrong against society as a
whole and is generally unattended with any particular harm to a definite person.
[81] These offenses are carried on in secret and the violators resort to many
devices and subterfuges to avoid detection.  It is rare for any member of the public,
no matter how furiously he condemns acts mala prohibita, to be willing to assist in
the enforcement of the law.  It is necessary, therefore, that government in
detecting and punishing violations of these laws, rely, not upon the voluntary action
of aggrieved individuals, but upon the diligence of its own officials. This means that
the police must be present at the time the offenses are committed either in an
undercover capacity or through informants, spies or stool pigeons.[82]

Though considered essential by the police in enforcing vice legislation, the

confidential informant system breeds abominable abuse.  Frequently, a person who
accepts payment from the police in the apprehension of drug peddlers and
gamblers also accept payment from these persons who deceive the police.  The
informant himself may be a drug addict, pickpocket, pimp, or other petty criminal. 
For whatever noble purpose it serves, the spectacle that government is secretly
mated with the underworld and uses underworld characters to help maintain law
and order is not an inspiring one.[83] Equally odious is the bitter reality of dealing
with unscrupulous, corrupt and exploitative law enforcers.  Like the informant,
unscrupulous law enforcers' motivations are legion-- harassment, extortion,
vengeance, blackmail, or a desire to report an accomplishment to their superiors. 
This Court has taken judicial notice of this ugly reality in a number of cases [84]
where we observed that it is a common modus operandi of corrupt law enforcers to
prey on weak and hapless persons, particularly unsuspecting provincial hicks.[85]
The use of shady underworld characters as informants, the relative ease with which
illegal drugs may be planted in the hands or property of trusting and ignorant
persons, and the imposed secrecy that inevitably shrouds all drug deals have
compelled this Court to be extra-vigilant in deciding drug cases.[86] Criminal
activity is such that stealth and strategy, although necessary weapons in the
arsenal of the police officer, become as objectionable police methods as the coerced
confession and the unlawful search.  As well put by the Supreme Court of California
in People v. Barraza,[87]

"[E]ntrapment is a facet of a broader problem.  Along with illegal

search and seizures, wiretapping, false arrest, illegal detention and
the third degree, it is a type of lawless enforcement. They all spring
from common motivations.  Each is a substitute for skillful and
scientific investigation. Each is condoned by the sinister sophism
that the end, when dealing with known criminals of the 'criminal
classes,' justifies the employment of illegal means."[88]

It is thus imperative that the presumption, juris tantum, of regularity in the

performance of official duty by law enforcement agents raised by the Solicitor
General be applied with studied restraint.  This presumption should not by itself
prevail over the presumption of innocence and the constitutionally-protected rights
of the individual.[89] It is the duty of courts to preserve the purity of their own
temple from the prostitution of the criminal law through lawless enforcement.[90]
Courts should not allow themselves to be used as an instrument of abuse and
injustice lest an innocent person be made to suffer the unusually severe penalties
for drug offenses.[91]

We therefore stress that the "objective" test in buy-bust operations demands that
the details of the purported transaction must be clearly and adequately shown. This
must start from the initial contact between the poseur-buyer and the pusher, the
offer to purchase, the promise or payment of the consideration until the
consummation of the sale by the delivery of the illegal drug subject of the sale.[92]
The manner by which the initial contact was made, whether or not through an
informant, the offer to purchase the drug, the payment of the "buy-bust" money,
and the delivery of the illegal drug, whether to the informant alone or the police
officer, must be the subject of strict scrutiny by courts to insure that law-abiding
citizens are not unlawfully induced to commit an offense. Criminals must be caught
but not at all cost. At the same time, however, examining the conduct of the police
should not disable courts into ignoring the accused's predisposition to commit the
crime. If there is overwhelming evidence of habitual delinquency, recidivism or
plain criminal proclivity, then this must also be considered. Courts should look at all
factors to determine the predisposition of an accused to commit an offense in so far
as they are relevant to determine the validity of the defense of inducement.  

In the case at bar, the evidence shows that it was the confidential informant who
initially contacted accused-appellant Doria. At the pre-arranged meeting, the
informant was accompanied by PO3 Manlangit who posed as the buyer of
marijuana. PO3 Manlangit handed the marked money to accused-appellant Doria as
advance payment for one (1) kilo of marijuana. Accused-appellant Doria was
apprehended when he later returned and handed the brick of marijuana to PO3
Manlangit.

PO3 Manlangit testified in a frank, spontaneous, straighforward and categorical

manner and his credibility was not crumpled on cross-examination by defense
counsel. Moreover, PO3 Manlangit's testimony was corroborated on its material
points by SPO1 Badua, his back-up security. The non-presentation of the
confidential informant is not fatal to the prosecution. Informants are usually not
presented in court because of the need to hide their identity and preserve their
invaluable service to the police.[93] It is well-settled that except when the
appellant vehemently denies selling prohibited drugs and there are material
inconsistencies in the testimonies of the arresting officers,[94] or there are reasons
to believe that the arresting officers had motives to testify falsely against the
appellant,[95] or that only the informant was the poseur-buyer who actually
witnessed the entire transaction,[96] the testimony of the informant may be
dispensed with as it will merely be corroborative of the apprehending officers'
eyewitness testimonies.[97] There is no need to present the informant in court
where the sale was actually witnessed and adequately proved by prosecution
witnesses.[98]

The inconsistencies in PO3 Manlangit's and SPO1 Badua's testimonies and the other
police officers' testimonies are minor and do not detract from the veracity and
weight of the prosecution evidence. The source of the money for the buy-bust
operation is not a critical fact in the case at bar.  It is enough that the prosecution
proved that money was paid to accused-appellant Doria in consideration of which
he sold and delivered the marijuana.

Contrary to accused-appellant Doria's claim, the one kilo of marijuana "sold" by him
to PO3 Manlangit was actually identified by PO3 Manlangit himself before the trial
court. After appellants' apprehension, the Narcom agents placed this one (1) brick
of marijuana recovered from appellant Doria inside the carton box lumping it
together with the ten (10) bricks inside. This is why the carton box contained
eleven (11) bricks of marijuana when brought before the trial court. The one (1)
brick recovered from appellant Doria and each of the ten (10) bricks, however,
were identified and marked in court. Thus:

"ATTY. ARIAS, Counsel for Florencio Doria:

  Mr. Police Officer, when you identified that box,. Tell the court, how
were you able to identify that box?

A This is the box that I brought to the crime laboratory which

contained the eleven pieces of marijuana brick we
confiscated from the suspect, sir.

Q Please open it and show those eleven bricks.

PROSECUTOR Witness bringing out from the said box...

ATTY. VALDEZ, Counsel for Violeta Gaddao:
  Your Honor, I must protest the line of questioning considering the
fact that we are now dealing with eleven items when the question
posed to the witness was what was handed to him by Jun?

COURT  So be it.
ATTY. ARIAS  May we make it of record that the witness is pulling out item
after item from the box showed to him and brought in front of him.

COURT       Noted.

Q Now tell the court, how did you know that those are the
 eleven bricks?

  x                                  x                                       x.
A I have markings on these eleven bricks, sir.
Q Point to the court, where are those markings?
A Here, sir, my signature, my initials with the date, sir.
PROSECUTOR Witness showed a white wrapper and pointing to CLM and the
signature.
Q Whose signature is that?
ATTY VALDEZ Your Honor, may we just limit the inquiry to the basic
question of the fiscal as to what was handed to him by the accused Jun,
your Honor?
PROSECUTOR   Your Honor, there is already a ruling by this Honorable
Court, your Honor, despite reconsideration.
COURT Let the prosecution do its own thing and leave the appreciation of
what it has done to the court.
ATTY. VALDEZ    We submit, your Honor.
A This brick is the one that was handed to me by the suspect
Jun, sir.
COURT      Why do you know that that is the thing? Are you sure that
is not "tikoy?"
A Yes, your Honor.
Q What makes you so sure?
A I am sure that this is the one, your Honor. This is the Exhibit
"A" which I marked before I brought it to the PCCL, your
Honor.
Q What are you sure of?
A I am sure that this is the brick that was given to me by one
alias Jun, sir.
Q What makes you so sure?
A Because I marked it with my own initials before giving it to
the investigator and before we brought it to the PCCL, your
Honor.
x                                  x                                       x.
PROSECUTOR     May we request that a tag be placed on this white
plastic bag and this be marked as Exhibit "D?"

COURT      Mark it as Exhibit "D."

Q To stress, who made the entries of this date, Exhibit "A" then the
other letters and figures on this plastic?
A This one, the signature, I made the signature, the date and the time
and this Exhibit "A."
Q How about this one?
A I don't know who made this marking, sir.
PROSECUTOR       May it be of record that this was just entered this
morning.
Q I am asking you about this "itim" and not the "asul."
 A This CLM, the date and the time and the Exhibit "A," I was the one
who made these markings, sir.
PROSECUTOR       May we place on record that the one that was enclosed...
ATTY. ARIAS        Your Honor, there are also entries included in that
enclosure where it appears D-394-95, also Exhibit "A," etc. etc., that was
not pointed to by the witness. I want to make it of record that there are
other entries included in the enclosure.
COURT       Noted. The court saw it.
Q Now, and this alleged brick of marijuana with a piece of
paper, with a newspaper wrapping with a piece of paper
inside which reads: "D-394-95, Exhibit A, 970 grams SSL" be
marked as our Exhibit "D-2?"
COURT      Tag it. Mark it.
Q This particular exhibit that you identified, the wrapper and
the contents was given to you by whom?
A It was given to me by suspect Jun, sir.
Q Whereat?
A At the corner of Boulevard and Jacinto St., sir.
Q How about the other items that you were able to recover?
x                                  x                                       x.
A These other marijuana bricks, because during our follow-up,
because according to Jun the money which I gave him was in
the hands of Neneth and so we proceeded to the house of
Neneth, sir.
  x                                  x                                       x."[99]

The first brick identified by P03 Manlangit was the brick of marijuana "given to
[him] by suspect Jun" at the corner of Boulevard and Jacinto Streets. This brick,
including the newspaper and white plastic wrapping were marked as Exhibits "D,"
"D-1," and "D-2" and described as weighing nine hundred seventy (970) grams.
[100]

We also reject appellant's submission that the fact that PO3 Manlangit and his team
waited for almost one hour for appellant Doria to give them the one kilo of
marijuana after he "paid" P1,600.00 strains credulity.  Appellant cannot capitalize
on the circumstance that the money and the  marijuana in the case at bar did not
change hands under the usual "kaliwaan" system.  There is no rule of law which
requires that in "buy-bust" operations there must be a simultaneous exchange of
the marked money and the prohibited drug between the poseur-buyer and the
pusher.[101] Again, the decisive fact is that the poseur-buyer received the
marijuana from the accused-appellant.[102]

We also hold that the warrantless arrest of accused-appellant Doria is not unlawful.
Warrantless arrests are allowed in three instances as provided by Section 5 of Rule
113 of the 1985 Rules on Criminal Procedure, to wit:

"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 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.

x     x     x."[103]

Under Section 5 (a), as above-quoted, a person may be arrested without a warrant

if he "has committed, is actually committing, or is attempting to commit an
offense." Appellant Doria was caught in the act of committing an offense. When an
accused is apprehended in flagrante delicto as a result of a buy-bust operation, the
police are not only authorized but duty-bound to arrest him even without a warrant.
[104]

The warrantless arrest of appellant Gaddao, the search of her person and
residence, and the seizure of the box of marijuana and marked bills are different
matters.

Our Constitution proscribes search and seizure without a judicial warrant and any
evidence obtained without such warrant is inadmissible for any purpose in any
proceeding.[105] The rule is, however, not absolute. Search and seizure may be
made without a warrant and the evidence obtained therefrom may be admissible in
the following instances:[106] (1) search incident to a lawful arrest;[107] (2) search
of a moving motor vehicle;[108] (3) search in violation of customs laws;[109] (4)
seizure of evidence in plain view;[110] (5) when the accused himself waives his
right against unreasonable searches and seizures.[111]

The prosecution admits that appellant Gaddao was arrested without a warrant of
arrest and the search and seizure of the box of marijuana and the marked bills
were likewise made without a search warrant. It is claimed, however, that the
warrants were not necessary because the arrest was made in "hot pursuit" and the
search was an incident to her lawful arrest.

To be lawful, the warrantless arrest of appellant Gaddao must fall under any of the
three (3) instances enumerated in Section 5 of Rule 113 of the 1985 Rules on
Criminal Procedure as aforequoted.  The direct testimony of PO3 Manlangit, the
arresting officer, however shows otherwise: 

"ATTY VALDEZ, Counsel for appellant Gaddao:

We submit at this juncture, your Honor, that there will be no basis

  for that question.

Q This particular exhibit that you identified, the wrapper and the
 contents was given to you by whom?

A It was given to me by suspect Jun, sir.

Q Whereat?
A At the corner of Boulevard and Jacinto Street, sir.
Q How about the other items that you were able to recover?
ATTY. VALDEZ:    We submit at this juncture, your Honor, that there will be
no basis for that question.
COURT       There is. Answer.
These other marijuana bricks, because during our follow-up,
because according to Jun the money which I gave him was in
A
the hands of Neneth and so we proceeded to the house of
Neneth, sir.
Q Whereat?
A At Daang Bakal near the crime scene at Shaw Boulevard, sir.
Q And what happened upon arrival thereat?
We saw alias Neneth inside the house and we asked him to
A
give us the buy-bust money, sir.
Q You mentioned "him?"
Her, sir. We asked her to give us the money, the marked
A
money which Jun gave her, sir.
Q And what happened?
At this instance, it was SPO1 Badua who can testify regarding this
A
buy-bust money, sir.
  x                                  x                                       x."[112]
SPO1 Badua testified on cross-examination that:
What was your intention in going to the house of Aling
Q
Neneth?
A To arrest her, sir.
But the fact is, Mr. Witness, when you reached the house of
Q
Aling Neneth, Aling Neneth was there?
A Yes, sir.
Q As far as you can see, she was just inside her house?
A I saw her outside, sir.
Q She was fetching water as a matter of fact?
A She was `sa bandang poso.'
Q Carrying a baby?
A No, sir.
At that particular time when you reached the house of Aling
Q Neneth and saw her outside the house, she was not
committing any crime, she was just outside the house?
A No, sir.
She was not about to commit any crime because she was just
Q
outside the house doing her daily chores.  Am I correct?
A I just saw her outside, sir.
And at that point in time you already wanted to arrest her. 
Q
That is correct, is it not?
A Yes, sir.
Now, if any memory of your testimony is correct, according to you
Q SPO1 Manlangit approached her?

A PO3 Manlangit, sir.

Q You did not approach her because PO3 Manlangit approached her?
A Yes, sir.
During all the time that this confrontation, arrest or whatever by
Q
SPO3 Manlangit was taking place, you were just in the side lines?
A I was just watching, sir.
So you were just an on-looker to what Manlangit was doing, because
Q precisely according to you your role in this buy-bust operation was
as a back-up?
A Yes, sir.
Who got the alleged marijuana from inside the house of Mrs.
Q
Neneth?
A PO3 Manlangit, sir.
Q Manlangit got the marijuana?
A Yes, sir.
Q And the money from Aling Neneth?
A I don't know, sir.
Q You did not even know who got the money from Aling Neneth?
PROSECUTOR:
There is no basis for this question, your Honor.  Money, there's no
 
testimony on that.
ATTY. VALDEZ:
  I was asking him precisely.
PROSECUTOR:
  No basis.
COURT:
  Sustained.
Alright.  I will ask you a question and I expect an honest answer. 
Q According to the records, the amount of P1,600.00 was recovered
from the person of Aling Neneth.  That's right?
A Yes, sir, the buy-bust money.
What you are now saying for certain and for the record is the fact
Q that you were not the one who retrieved the money from Aling
Neneth, it was Manlangit maybe?
A I saw it, sir.
Q It was Manlangit who got the money from Aling Neneth?
The buy-bust money was recovered from the house of Aling Neneth,
A
sir.
It was taken from the house of Aling Neneth, not from the person of
Q
Aling Neneth.  Is that what you are trying to tell the Court?
A No, sir.
ATTY. VALDEZ:    I am through with this witness, your Honor."[113]
Accused-appellant Gaddao was not caught red-handed during the buy-bust
operation to give ground for her arrest under Section 5 (a) of Rule 113.   She was
not committing any crime. Contrary to the finding of the trial court, there was no
occasion at all for appellant Gaddao to flee from the policemen to justify her arrest
in "hot pursuit."[114] In fact, she was going about her daily chores when the
policemen pounced on her.

Neither could the arrest of appellant Gaddao be justified under the second instance
of Rule 113.  "Personal knowledge" of facts in arrests without warrant under Section
5 (b) of Rule 113 must be based upon "probable cause" which means an "actual
belief or reasonable grounds of suspicion."[115] The grounds of suspicion are
reasonable when, in the absence of actual belief of the arresting officers, the
suspicion that the person to be arrested is probably guilty of committing the
offense, is based 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.[116] A reasonable suspicion therefore must be founded on probable
cause, coupled with good faith on the part of the peace officers making the arrest.
[117]

Accused-appellant Gaddao was arrested solely on the basis of the alleged

identification made by her co-accused.  PO3 Manlangit, however, declared in his
direct examination that appellant Doria named his co-accused in response to his
(PO3 Manlangit's) query as to where the marked money was.[118] Appellant Doria
did not point to appellant Gaddao as his associate in the drug business, but as the
person with whom he left the marked bills.  This identification does not necessarily
lead to the conclusion that appellant Gaddao conspired with her co-accused in
pushing drugs.  Appellant Doria may have left the money in her house,[119] with or
without her knowledge, with or without any conspiracy.  Save for accused-appellant
Doria's word, the Narcom agents had no reasonable grounds to believe that she
was engaged in drug pushing.  If there is no showing that the person who effected
the warrantless arrest had, in his own right, knowledge of facts implicating the
person arrested to the perpetration of a criminal offense, the arrest is legally
objectionable.[120]

Since the warrantless arrest of accused-appellant Gaddao was illegal, it follows that
the search of her person and home and the subsequent seizure of the marked bills
and marijuana cannot be deemed legal as an incident to her arrest.  This brings us
to the question of whether the trial court correctly found that the box of marijuana
was in plain view, making its warrantless seizure  valid.

Objects falling in plain view of an officer who has a right to be in the position to
have that view are subject to seizure even without a search warrant and may be
introduced in evidence.[121] The "plain view" doctrine applies when the following
requisites concur: (a) the law enforcement officer in search of the evidence has a
prior justification for an intrusion or is in a position from which he can view a
particular area; (b) the discovery of the evidence in plain view is inadvertent; (c) it
is immediately apparent to the officer that the item he observes may be evidence of
a crime, contraband or otherwise subject to seizure.[122] The law enforcement
officer must lawfully make an initial intrusion or properly be in a position from
which he can particularly view the area.[123] In the course of such lawful intrusion,
he came inadvertently across a piece of evidence incriminating the accused.[124]
The object must be open to eye and hand[125] and its discovery inadvertent.[126]

It is clear that an object is in plain view if the object itself is plainly exposed to
sight.  The difficulty arises when the object is inside a closed container.  Where the
object seized was inside a closed package, the object itself is not in plain view and
therefore cannot be seized without a warrant.  However, if the package proclaims
its contents, whether by its distinctive configuration, its transparency, or if its
contents are obvious to an observer, then the contents are in plain view and may
be seized.[127] In other words, if the package is such that an experienced observer
could infer from its appearance that it contains the prohibited article, then the
article is deemed in plain view.[128] It must be immediately apparent to the police
that the items that they observe may be evidence of a crime, contraband or
otherwise subject to seizure.[129]

PO3 Manlangit, the Narcom agent who found the box, testified on cross-
examination as follows:

"ATTY. VALDEZ:

  So here we are.  When you and Badua arrived, Aling Neneth was
inside the house?

A Yes, sir.
Q Badua demanded from Aling Neneth the buy-bust money?
A Yes, sir.
Q At that particular instance, you saw the carton?
A Yes, sir.
Q This carton, according to you was under a table?
A Yes, sir, dining table.
Q I noticed that this carton has a cover?
A Yes, sir.
Q I ask you were the flaps of the cover raised or closed?
A It was open, sir.  Not like that.
COURT
  Go down there. Show to the court.
INTERPRETER
  Witness went down the witness stand and approached a carton box.
A Like this, sir.
PROSECUTOR
  Can we describe it?
ATTY. VALDEZ
  Yes.
PROSECUTOR
  One flap is inside and the other flap is standing and with the
contents visible.
COURT
  Noted.
Q At this juncture, you went inside the house?
A Yes, sir.
Q And got hold of this carton?
A Yes, sir.
Q Did you mention anything to Aling Neneth?
A I asked her, what's this...
Q No, no. no. did you mention anything to Aling Neneth before getting
the carton?
A I think it was Badua who accosted Aling Neneth regarding the buy-
bust money and he asked "Sa iyo galing ang marijuanang ito,
nasaan ang buy-bust money namin?" sir.
Q Making reference to the marijuana that was given by alias Jun?
A Yes, sir.
Q When you proceeded to take hold of this carton, Aling Neneth was
not yet frisked, is it not [sic]?
A I just don't know if she was frisked already by Badua, sir.
Q Who got hold of this?
A I was the one, sir.
Q You were the one who got this?
A Yes, sir.
Q At that particular point in time, you did not know if the alleged buy-
bust money was already retrieved by Badua?
A Yes, sir.
Q You did not have any search warrant?
A Yes, sir.
Q In fact, there was nothing yet as far as you were concerned to
validate the fact that Mrs. Gadao was in possession of the buy-bust
money because according to you, you did not know whether Badua
already retrieved the buy-bust money from her?
A Yes, sir.
Q How far was this from the door?
A Two and a half meters from the door, sir.  It was in plain view.
Q Under the table according to you?
A Yes, sir, dining table.
Q Somewhere here?
A It's far, sir.
PROSECUTOR
  May we request the witness to place it, where he saw it?
A Here, sir.

Q What you see is a carton?

A Yes, sir, with plastic.
Q Marked "Snow Time Ice Pop?"
A Yes, sir.
Q With a piece of plastic visible on top of the carton?
A Yes, sir.
Q That is all that you saw?
 A Yes, sir.
PROSECUTOR
  For the record, your Honor...
Q You were only able to verify according to you...
PROSECUTOR
  Panero, wait.  Because I am objecting to the words a piece of
plastic.  By reading it...
ATTY. VALDEZ
  That's a piece of plastic.
PROSECUTOR
  By reading it, it will connote... this is not a piece of plastic.
ATTY. VALDEZ
  What is that?  What can you say, Fiscal?  I'm asking you?
PROSECUTOR
  With due respect, what I am saying is, let's place the size of the
plastic.  A piece of plastic may be big or a small one, for record
purposes.
COURT
  Leave that to the court.
PROSECUTOR
  Leave that to the court.
Q The only reason according to you, you were able to... Look at
this, no even Superman... I withdraw that.  Not even a man
with very kin [sic] eyes can tell the contents here.  And
according to the Court, it could be "tikoy," is it not [sic]?
A Yes, sir.
Q Siopao?
A Yes, sir.
Q Canned goods?
A Yes, sir.
Q It could be ice cream because it says Snow Pop, Ice Pop?
A I presumed it was also marijuana because it may ...
Q I am not asking you what your presumptions are.  I'm asking
you what it could possibly be.
A It's the same plastic, sir.
ATTY. VALDEZ
  I'm not even asking you that question so why are you voluntarily
saying the information.  Let the prosecutor do that for you.
COURT
  Continue.  Next question.
  x       x       x."[130]

PO3 Manlangit and the police team were at appellant Gaddao's house because they
were led there by appellant Doria.  The Narcom agents testified that they had no
information on appellant Gaddao until appellant Doria named her and led them to
her.[131] Standing by the door of appellant Gaddao's house, PO3 Manlangit had a
view of the interior of said house.  Two and a half meters away was the dining table
and underneath it was a carton box.  The box was partially open and revealed
something wrapped in plastic.

In his direct examination, PO3 Manlangit said that he was sure that the contents of
the box were marijuana because he himself checked and marked the said contents.
[132] On cross-examination, however, he  admitted that he merely presumed the
contents to be marijuana because it had the same plastic wrapping as the "buy-
bust marijuana."  A close scrutiny of the records reveals that the plastic wrapper
was not colorless and transparent as to clearly manifest its contents to a viewer. 
Each of the ten (10) bricks of marijuana in the box was individually
wrapped in old newspaper and placed inside plastic bags-- white, pink or
blue in color.[133] PO3 Manlangit himself admitted on cross-examination
that the contents of the box could be items other than marijuana.  He did
not know exactly what the box contained that he had to ask appellant
Gaddao about its contents.[134] It was not immediately apparent to PO3
Manlangit that the content of the box was marijuana.  The marijuana was not
in plain view and its seizure without the requisite search warrant was in violation of
the law and the Constitution.[135] It was fruit of the poisonous tree and should
have been excluded and never considered by the trial court.[136]

The fact that the box containing about six (6) kilos of marijuana[137] was found in
the house of accused-appellant Gaddao does not justify a finding that she herself is
guilty of the crime charged.[138] Apropos is our ruling in People v. Aminnudin,
[139] viz:

"The Court strongly supports the campaign of the government

against drug addiction and commends the efforts of our law
enforcement officers against those who would inflict this
malediction upon our people, especially the susceptible youth.  But
as demanding as this campaign may be, it cannot be more so than
the compulsions of the Bill of Rights for the protection of the liberty
of every individual in the realm, including the basest of criminals. 
The Constitution covers with the mantle of its protection the
innocent and the guilty alike against any manner of high-
handedness from the authorities, however praiseworthy their
intentions.

Those who are supposed to enforce the law are not justified in
disregarding the right of the individual in the name of order.  Order
is too high a price for the loss of liberty.  As Justice Holmes, again,
said, 'I think it a less evil that some criminals should escape than
that the government should play an ignoble part.'  It is simply not
allowed in the free society to violate a law to enforce another,
especially if the law violated is the Constitution itself."[140]

Section 4 of Republic Act No. 6425, the Dangerous Drugs Act of 1972, as amended
by Section 13 of Republic Act No. 7659 punishes the "sale, administration, delivery,
distribution and transportation of a prohibited drug" with the penalty of reclusion
perpetua to death and a fine ranging from P500,000.00 to P10 million, to wit:

"Sec. 4. Sale, Administration, Delivery, Distribution and

Transportation of Prohibited Drugs.-- The penalty of reclusion
 perpetua to death, and a fine ranging from five hundred thousand
pesos to ten million pesos shall be imposed upon any person who,
unless authorized by law, shall sell, administer, deliver, give away
to another, distribute, dispatch in transit or transport any
prohibited drug, or shall act as a broker in any of such
transactions.

x             x             x."

In every prosecution for illegal sale of dangerous drugs, what is material is the
submission of proof that the sale took place between the poseur-buyer and the
seller thereof and the presentation of the drug, i.e., the corpus delicti, as evidence
in court.[141] The prosecution has clearly established the fact that in consideration
of P1,600.00 which he received, accused-appellant Doria sold and delivered nine
hundred seventy (970) grams of marijuana to PO3 Manlangit, the poseur-buyer. 
The prosecution, however, has failed to prove that accused-appellant Gaddao
conspired with accused-appellant Doria in the sale of said drug.  There being no
mitigating or aggravating circumstances, the lower penalty of reclusion perpetua
must be imposed.[142]

IN VIEW WHEREOF, the decision of the Regional Trial Court, Branch 156, Pasig
City acting as a Special Court in Criminal Case No. 3307-D is reversed and modified
as follows:

1.  Accused-appellant Florencio Doria y Bolado is sentenced to suffer the penalty of

reclusion perpetua and to pay a fine of five hundred thousand pesos (P500,000.00).

2. Accused-appellant Violeta Gaddao y Catama is acquitted.

SO ORDERED.

Davide, Jr., C.J., Romero, Bellosillo, Melo, Vitug, Kapunan, Mendoza, Martinez,
Quisumbing, Purisima, Pardo, Buena, and Gonzaga-Reyes, JJ., concur.
Panganiban, J., please see concurring opinion.

[1] Republic Act No. 6425, as amended by R.A. 7659.

[2] Rollo, pp. 6-7.

[3] Exhibits "A-1" to "A-4," "B-1" to "B-3."

[4] Exhibits "C-1" and "C-2."

[5] TSN of February 6, 1996, p. 10.

[6] TSN of February 6, 1996, pp. 11-12.

[7] TSN of February 6, 1996, p. 18.

[8] TSN of March 12, 1996, p. 18.

[9] Exhibit "S," Request for Laboratory Examination.

[10] Exhibits "Q," and "R;" TSN of March 5, 1996, pp. 2-11.

[11] TSN of May 8, 1996, pp. 2-8.

[12] TSN of April 10, 1996, pp. 4-17.

[13] Decision of the trial court, pp. 13-14, Rollo, pp. 30-31.

[14] Brief for Accused-Appellant Florencio Doria, pp. 8, 14, Rollo, pp. 52, 58.

[15] Brief for Accused-Appellant Violeta Gaddao, p. 39, Rollo, p. 126.

[16] People v. Basilgo, 235 SCRA 191[1994]; People v. Yap, 229 SCRA 787 [1994];
People v. Macasa, 229 SCRA 422 [1994].

[17] People v. Herrera, 247 SCRA 433 [1995]; People v. Tadepa, 244 SCRA 339
[1995]; People v. Basilgo, supra.

[18] 21 Am Jur 2d, "Criminal Law," Sec. 203 [1981 ed.]; see also State v.
Campbell, 110 NH 238, 265 A2d 11, 13 [1970]-- sale of narcotics; Annotation in 62
ALR 3d 110, Sec. 2[a].

[19] 21 Am Jur 2d, "Criminal Law," Sec. 204 [1981 ed.]; see also United States ex
rel. Hall v. Illinois (CA7 Ill) 329 F2d 354, 358-359 cert den 379 US 891, 13 L Ed 2d
94, 85 S Ct 164 [1964]-- unlawful sale and possession of narcotic drugs.

[20] Id; see also State v. Campbell, supra, at 13; United States v. Becker (CA2 NY)
62 F2d 1007, 1009 [1933]-- sending obscene matter in interstate commerce.

[21] 21 Am Jur 2d, "Criminal Law," Sec. 202 [1981 ed.].

[22] 287 U.S. 435, 53 S. Ct. 210, 77 L Ed 413 [1932]. This case involved the sale
of liquor in violation of the Prohibition Act. The majority decision was penned by
Chief Justice Hughes. Justice Roberts wrote a concurring opinion.

[23] at 287 U.S. 454, 77 L Ed 423; also cited in People v. Bernal (4th Dist) 345 P
2d 140,143, 174 Cal App 2d 777 [1959]; People v. Outten, 147 NE 2d 284,285, 13
Ill 2d 21 [1958]; Swift v. Commonwealth, 100 SE 2d 9, 12, 199 Va 420 [1957];
see also 21 Am Jur 2d, "Criminal Law," Sec. 202.

[24] 21 Am Jur 2d, supra, at Sec. 202.

[25] People v. Outten, supra, at 286.

[26] Sorrells v. United States, 287 U.S. 435, 442, 451-452 [1932].
[27] Hoy v. State, 53 Ariz 440, 90 P2d 623, 628-629 [1939]--bribery;  see 21 Am
Jur 2d, supra, Sec. 202.

[28] Woo Wai v. United States, 233 Fed. 412 (6th Cir. 1916); Sorrells v. United
States, supra, at 452-- the defense is available, not in the view that the accused
though guilty may go free, but that the government cannot be permitted to contend
that he is guilty of the crime when the government officials are the instigators of his
conduct; see also 22 C.J.S., "Criminal Law," Sec. 45, [1940 ed.].

[29] 21 Am Jr 2d, "Criminal Law," Sec. 203.

[30] Christopher Moore, "The Elusive Foundation of the Entrapment Defense,"

Northwestern University Law Review, vol. 89: 1151, 1153-1154 [Spring 1995];
Scott C. Paton, "The Government Made Me Do It: A Proposed Approach to
Entrapment under Jacobson v. United States," Cornell Law Review, vol. 79:885,
1000-1001 [1994]; Roger Park, "The Entrapment Controversy," Minnesota Law
Review, vol. 60: 163, 165 [1976].

[31] The "subjective" test is also referred to as the Sherman-Sorrells doctrine, a

reference to the fact that the test was adopted by a majority of the U.S. Supreme
Court in the cases of Sherman v. United States, 356 U.S. 369, 2 L Ed 2d 848, 78 S
Ct 819 [1958] and Sorrells v. United States, supra-- Wayne R. LaFave and Austin
W. Scott, Jr., Criminal Law, Hornbook series, 2d ed., p. 422 [1986].

[32] Sorrells v. United States, supra, at 451-452; Sherman v. United States, 356
U.S. 369, 373, 2 L ed 2d 848, 78 S Ct 819 [1958].

[33] Paton, supra, at 1001-1002.

[34] LaFave and Scott, supra, at 422.

[35] Sherman v. United States, supra, at 356 U.S. at 372-373.

[36] United States v. Russell, 411 U.S. 423, 435-437, 36 L Ed 2d 366, 3750376, 93
S Ct 1637 [1973]; see also Park, supra, at 165.

[37] Or the Roberts-Frankfurter approach, after the writers of the concurring

opinions in Sorrells and Sherman-- LaFave and Scott, supra, at 423.

[38] 457 P. 2d 226 [Alaska 1969].

[39] Grossman v. State, 457 P. 2d 226, 229 [Alaska 1969]; Paton, supra, at 1002.

[40] Sorrells v. United States, 287 U.S. at 453, Roberts, J., concurring; Sherman v.
United States, 356 U.S. at 378-385, Frankfurter, J., concurring.

[41] Grossman v. State, 457 P. 2d 226, 229 [Alaska 1969].

[42] People v. Barraza, 591 P. 2d 947, 955 [California 1979]-- selling heroin.

[43] People v. Barraza, supra, at 955.

[44] Sherman v. United States, 356 U.S. 369, 383 [1958] Frankfurter, J.,
concurring; Grossman v. State, supra, at 230; see also Park, supra, Note 212, at
227.

[45] LaFave and Scott, supra, at 424.

[46] Grossman v. State, supra, at 230; People v. Barraza, supra, at 955-956.

[47] LaFave and Scott, supra, at 425-426.

[48] Id. Other objections are also discussed in said book.

[49] Id.

[50] Id.

[51] Paton, supra, at 1005-1006.

[52] 465 So. 2d 516 [Fla. 1985].

[53] Id. at 521-522.

[54] 742 P. 2d 1043 [N.M. 1987].

[55] Paton, supra, at 1039.

[56] 16 Phil. 440 [1910].

[57] This case was interpreted in People v. Hilario and Aguila, 93 Phil. 386, 390
[1953], where the Supreme Court declared that the "criminal intent" to smoke
opium "originated in the mind of the entrapping agent" and the accused was merely
induced to commit the act by repeated and persistent solicitation. In Phelps, the
court disregarded the evidence of Phelps' predisposition to commit the crime.

[58] Id., at 443-444.

[59] 46 Phil. 857 [1923].

[60] Id., at 861.

[61] 56 Phil. 44 [1931].

[62] Id. at 53-54.

[63] Id.

[64] Page 88, section 57.

[65] Id., at 52-53; also cited in People v. Hilario and Aguila, 93 Phil. 386, 389-390
[1953].
[66] 40 O.G. No. 23, p. 4476 [1941].

[67] Id., at 4478.

[68] 43 O.G. No. 4, p. 1286 [1947].

[69] Id., at 1287.

[70] 96 Phil. 738, 741 [1955].

[71] Id.; also cited in Aquino, Revised Penal Code, vol. 2, p. 240 [1997].

[72] Absolutory causes are those causes where the act committed is a crime but for
reasons of public policy and sentiment there is no penalty imposed-- Reyes,
Revised Penal Code, Book I, pp. 231-232 [1993].

[73] People v. Cruz, 231 SCRA 759 [1994]; People v. Poliza, 214 SCRA 56 [1992];
People v. Lapatha, 167 SCRA 159 [1988] citing U.S. v. Phelps, supra; People v.
Flores, 165 SCRA 71 [1988]; People v. Ale, 145 SCRA 50 [1986]; People v.
Fernando, 145 SCRA 151 [1986]; People v. Patog, 144 SCRA 429 [1986]; People v.
Valmores, 122 SCRA 922 [1983] citing People v. Lua Chu, etc.

[74] 152 SCRA 263, 271 [1987]. Although the accused did not raise the defense of
instigation, the court examined the conduct of the police at the buy-bust operation
and admitted evidence of the accused's past and predisposition to commit the
crime.

[75] Accused was previously convicted of frustrated murder, robbery, hold-up and
drug pushing. In the drug-pushing case, he was detained at Welfareville but
escaped-- People v. Boholst, 152 SCRA 263, 271 [1987].

[76] 188 SCRA 1, 15 [1990].

[77] Richard C. Donnelly, "Judicial Control of Informants, Spies, Stool Pigeons and
Agent  Provocateurs," The Yale Law Journal, vol. 60: 1091, 1093 [1951].

[78] Reyes, Revised Penal Code, Book I, pp. 54-55 [1993].

[79] Id.

[80] Donnelly, supra, at 1093. Instead of "mala prohibita," Donnelly uses the term
"regulatory statutes."

[81] Id.

[82] Id.

[83] Id., at 1094.

[84] People v. Simon, 234 SCRA 555, 563 [1994]; People v. Cruz, 231 SCRA 759,
764 [1994]; People v. Crisostomo, 222 SCRA 511, 514 [1993]; People v. Fernando,
145 SCRA 151, 159 [1986]; People v. Ale, 145 SCRA 50, 58-59 [1986].

[85] Id.

[86] People v. Cruz, 231 SCRA 759, 764-765 [1994]; People v. Salcedo, 195 SCRA
345, 352  [1991]; People v. William, 209 SCRA 808, 814 [1992]; People v. Ale, 145
SCRA 50, 58-59 [1986].

[87] 591 P. 2d 947 [Cal. 1979].

[88] Id. at 955. The Supreme Court of California quoted Richard C. Donnelly,
"Judicial Control of Informants, Spies, Stool Pigeons and Agent Provocateurs," Yale
Law Journal, vol. 60: 1091, 1111  [1951], also herein  cited;  See also Paton,
Cornell Law Review, supra, at Note 55. It must be noted, however, that entrapment
is not based on constitutional grounds as search and seizure and forced
confessions-- United States v. Russell, 411 U.S. 423, 430, 36 L Ed 2d 366, 372-
373, 93 S Ct 1637  [1973].

[89] Tambasen v. People, 246 SCRA 184 [1995]; People v. Rigodon, 238 SCRA 27
[1994]; People v. Cruz, 231 SCRA 759, 771 [1994].

[90] Sorrells v. United States, supra, at 457, Roberts, J., concurring.

[91] Tambasen v. People, 246 SCRA 184, 191 [1995]; People v. Rigodon, 238
SCRA 27, 35 [1994]; People v. Cruz, 231 SCRA 759, 771 [1994].

[92] People v. Tadepa, 244 SCRA 339, 341-342 [1995]; People v. Crisostomo, 222
SCRA 511, 515 1993].

[93] People v. Gireng, 241 SCRA 11 [1995]; People v. Nicolas, 241 SCRA 67
[1995]; People v. Marcelo, 223 SCRA 24 [1993].

[94] People v. Ale, 145 SCRA 50 [1994].

[95] People v. Sillo, 214 SCRA 74 [1992].

[96] People v. Sahagun, 182 SCRA 91 [1990]; People v. Libag, 184 SCRA 707,
717-715 [1990]; People v. Ramos, 186 SCRA 184, 191-192 [1990].

[97] People v. Lucero, 229 SCRA 1, 9-10 [1994]; People v. Tranca, 235 SCRA 455,
464 [1994]; People v. Solon, 244 SCRA 554, 561 [1995]; People v. Herrera, 247
SCRA 433 [1995].

[98] People v. Solon, 244 SCRA 554 [1995]; People v. Ong Co, 245 SCRA 733
[1995].

[99] TSN of February 20, 1996, pp. 14-18; Emphasis supplied.

[100] TSN of February 20, 1996, pp. 16-17.

[101] People v. Ponsica, 230 SCRA 87, 95-96 [1994]; People v. Agustin, 215 SCRA
725, 732-733  [1992].

[102] People v. Agustin, supra, at 732-733.

[103]103 Emphasis supplied.103

[104] People v. Sibug, 229 SCRA 489 [1994]; People v. de Lara, 236 SCRA 291
[1994]; People v. Labarias, 217 SCRA 483 [1993].

[105] Sections 2 and 3 (2), Article III.

[106] Hizon v. Court of Appeals, 265 SCRA 517, 527 [1996]; People v. Fernandez,
239 SCRA 174, 182-183 [1994]; Roan v. Gonzales, 145 SCRA 687, 697 [1986];
see also Bernas, The Constitution of the Republic of the Philippines, p. 169 [1996];
Cruz, Constitutional Law, pp. 147-153 [1986].

[107] Section 12, Rule 126; Section 5, Rule 113, Revised Rules on Criminal
Procedure.

[108] People v. Bagista, 214 SCRA 63, 69 [1992]; People v. Lo Ho Wing, 193 SCRA
122, 126-128 [1991].

[109] Roldan, Jr. v. Arca, 65 SCRA 336, 348 [1975]; Papa v. Mago, 22 SCRA 857,
871-874 [1968].

[110] People v. Tabar, 222 SCRA 144, 153 [1993]; Roan v. Gonzales, 145 SCRA
687, 697 [1986].

[111] People v. Tabar, supra, at 153-154; Alvarez v. CFI, 64 Phil. 33, 48 [1937];
People v. Kagui Malasugui, 63 Phil. 221, 226 [1936].

[112] TSN of February 20, 1996, pp. 17-18; Direct examination; Emphasis
supplied.

[113] TSN of March 12, 1996, pp. 16-18, Cross-examination by counsel for Violeta
Gaddao; Emphasis supplied.

[114] Compare with People v. Bati, 189 SCRA 97, 103 [1990], where the two
accused were pursued and arrested a few minutes after consummating the sale of
marijuana. "Hot pursuit" has a technical meaning.  It is a doctrine in International
Law which means the pursuit in the high seas of a foreign vessel undertaken by the
coastal state which has good reason to believe that the ship has violated the laws
and regulations of that state (Salonga and Yap, Public International Law, p. 90
[1992]).

[115] Umil v. Ramos, 202 SCRA 251, 263 [1991]; United States v. Santos, 36 Phil.
851 [1917]. Police officers had personal knowledge of the actual commission of the
crime after conducting a surveillance of the accused (People v. Bati, 189 SCRA 97
[1990]; People v. Sucro, 195 SCRA 388  [1990]), or a prior test-buy operation
(People v. Ramos, 186 SCRA 184 [1990]).
[116] Id.

[117] Id.

[118] PO3 Manlangit affirmed this fact in his cross-examination by counsel for
appellant Gaddao-- TSN of February 20, 1996, pp. 42-43.

[119] SPO1 Badua's testimony does not clearly establish where he found the
marked bills-- whether from appellant Gaddao's person or after a search of her
house.

[120] Pamaran, The 1985 Rules on Criminal Procedure Annotated, p. 195 [1995].

[121] Harris v. United States, 390 U.S. 234, 19 L. Ed. 2d 1067, 1069 [1968]; see
also Bernas, supra, at 174.

[122] Coolidge v. New Hampshire, 403 U.S. 443, 29 L. Ed. 2d 564 [1971];  Texas
v. Brown, 460 U.S. 730, 75 L. Ed. 2d 502, 510 [1983];  see also People v. Musa,
217 SCRA 597, 611 [1993] citing both cases.

[123] Harris v. United States, supra, at 1069.

[124] Coolidge v. New Hampshire, supra, at 582.

[125] Roan v. Gonzales, 145 SCRA 687, 697 [1986]; Cruz, supra, at 151.

[126] Roan v. Gonzales, supra, at 697, citing Harris v. United States, supra;
Bernas, supra, at 174 citing Coolidge v. New Hampshire, 403 U.S. 443, 472 [1971].

[127] Robbins v. California, 453 U.S. 420, 69 L. Ed. 2d 744, 751 [1981]; also cited
in People v. Musa, supra, at 612 and Note 48;  Arkansas v. Sanders, 442 U.S. 753,
61 L. Ed. 2d 235, 245, Note 13 [1979].

[128] Robbins v. California, supra, at 751; Texas v. Brown, supra, at 514.

[129] People v. Musa, supra, at 611.

[130] TSN of February 20, 1996, pp. 44-47; Emphasis supplied.

[131] TSN of February 20, 1996, p. 31.

[132] TSN of February 20, 1996, pp. 15-16.

[133] Exhibits "F," "G," "H," "I," "J," "K," "L," "M," "N," "O;" TSN of February 20,
1996, pp. 22-25; see also Exhibit "S--" Request for Laboratory Examination.

[134] In People v. Musa, 217 SCRA 597, 612 [1993], the Narcom agents found
marijuana in a plastic bag hanging in one corner of the kitchen.  The agents had no
clue as to the contents of the bag and had to ask the accused what it contained. 
The Supreme Court held that the marijuana was not in plain view.
[135] Section 2, Bill of Rights, 1987 Constitution.

[136] People v. Aminnudin, 163 SCRA 403, 410 [1988].

[137] The total weight of 7,641.08 grams or 7.6 kilos of marijuana included the 970
grams (or almost one kilo) of "buy-bust marijuana" given by appellant Doria (See
"Request for Laboratory Examination," Exhibit "S"). Deducting this 970 grams, the
ten bricks of marijuana found in the box weigh 6,671.08 grams or approximately 6
kilos.

[138] People v. Aminnudin, 163 SCRA 402, 410 [1988].

[139] Id.

[140] Id, at 410-411; also cited in People v. Flores, 165 SCRA 71, 85 [1988].

[141] People v. Zervoulakos, 241 SCRA 625 [1995]; People v. Martinez, 235 SCRA
171 [1994]; People v. Rigodon, 238 SCRA 27 [1994].  The exclusion or absence of
the marked money does not create a hiatus in the prosecution's evidence as long as
the drug subject of the illegal transaction was presented at the trial court-- People
v. Nicolas, 241 SCRA 573 [1995]; People v. Lucero, 229 SCRA 1 [1994].

[142] Section 23, R.A. 7659 amending Article 62 of the Dangerous Drugs Act; see
also Section 17 (5), R.A. 7659 amending Section 20 of the Dangerous Drugs Act.

CONCURRING OPINION

PANGANIBAN, J.:

I fully concur with the exhaustive and incisive ponencia of Mr. Justice Reynato S.
Puno.  This Decision rightfully brings the Court back to well-settled doctrines on
warrantless arrests and searches, which have seemingly been modified through an
obiter in People v. Ruben Montilla.[1] I just wish to outline some guidelines on
when an arrest or a  search without a warrant is valid. Hopefully, they would be of
help, especially to our law enforcers who are often faced with actual situation that
promptly call for their application.

Valid Arrests
Without Warrants

Section 5 of Rule 113 of the Rules of Court lays down the basic rule on when an
arrest without a warrant is lawful.  It states:

“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 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”

I shall focus my discussion on the first two rules, which have been most frequently
misapplied and misinterpreted, not only by law enforcers but some trial judges and
lawyers as well.

At the very outset, I wish to underscore that in both cases the arresting officer
must have personal knowledge of the fact of the commission of an
offense.  Under Section 5 (a), the officer himself is a witness to the crime; under
Section 5 (b), he knows for a fact that a crime has just been committed.  Let me
elaborate.

1.  In Flagrante
Delicto Arrests

Section 5 (a) is commonly referred to as the rule on in flagrante delicto arrests.[2]

The accused is apprehended at the very moment he is committing or attempting to
commit or has just committed an offense in the presence of the arresting officer. 
There are two elements that 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.[3]

It is not sufficient that the suspect exhibits unusual or strange acts or simply
appears suspicious.  Thus, in the recent en banc case of Malacat v. Court of
Appeals,[4] the Court, through now Chief Justice Hilario G. Davide Jr., held that the
fact that the appellant’s eyes were “moving very fast”   and   looking   at   every
approaching person were not sufficient to suspect him of “attempting to commit a
crime,” much less to justify his arrest and subsequent search without a warrant. 
The Court said that “there was nothing in [Malacat’s] behavior or conduct which
could have reasonably elicited even mere suspicion” that he was armed with a
deadly weapon.  In other words, there was no overt physical act on the part of the
suspect, positively indicating that he had just committed a crime or was committing
or attempting to commit one.  There was, therefore, no valid reason for the police
officers to arrest or search him.

The same was true in People v. Mengote,[5] where the arresting police tried to
justify the warrantless arrest of the appellant on the ground that he appeared
suspicious.  The “suspicious” acts consisted of his darting eyes and the fact that his
hand was over his abdomen.  The Court, rejecting such justification, stated:  “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.”[6]

In other words, the behavior or conduct of the person to be arrested must be

clearly indicative of a criminal act.  If there is no outward indication at all that calls
for an arrest, the suspect cannot be validly apprehended under this paragraph,
notwithstanding a tip from an informant that he would at the time be undertaking a
felonious enterprise.

This doctrine found strength in People v. Aminnudin[7] and again in People v.

Encinada.[8]  In both cases, the appellants were arrested while disembarking from
a ship, on account of a tip received from an informant that they were carrying
prohibited drugs.  The Court invalidated their warrantless arrests, explaining that at
the moment of their arrests, the appellants were simply descending the gangplank,
without manifesting any suspicious behavior that would reasonably invite the
attention of the police.  To all appearances, they were not committing a crime; nor
was it shown that they were about to do so or had just done so.  There was,
therefore, no valid reason for their arrests.

Adhering to (and having faith in) the above rules, I respectfully disagreed with the
distinguished Mr. Justice Florenz D. Regalado in People v. Montilla,[9] when he
upheld the validity of the warrantless arrest of the appellant while the latter was
merely alighting from a passenger jeepney.  I opined that Montilla could not have
been perceived as committing a crime while merely alighting from a jeepney
carrying a traveling bag and a carton.  He did not exhibit any overt act or strange
conduct that would reasonably arouse in the minds of the police suspicion that he
was embarking on a felonious undertaking.  There was no outward manifestation
that he had just committed or was committing or attempting to commit an offense. 
Mercifully, the statement of the Court that Montilla’s arrest was valid because he
was caught in flagrante delicto was only an obiter, for what finally nailed him down
was his implied waiver of any objection to the validity of his arrest.

2.  “Hot Pursuit”

Arrests

Section 5 (b) is otherwise known as the rule on “hot pursuit” arrests.[10]  Here,
two elements must also concur prior to the arrest:  (1) an “offense has in fact just
been committed,” and (2) the arresting officer “has personal knowledge of facts
indicating that the person to be arrested  xxx  committed [the offense].”  In
effecting this type of arrest, “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.  xxx  The fact of the commission of the
offense must be undisputed.”[11]

Thus, while the law enforcers may not actually witness the execution of acts
constituting the offense, they must have direct knowledge or view of the crime right
after its commission.  They should know for a fact that a crime was committed. 
AND they must also perceive acts exhibited by the person to be arrested, indicating
that he perpetrated the crime.  Again, mere intelligence information that the
suspect committed the crime will not suffice.  The arresting officers themselves
must have personal  knowledge of facts showing that the suspect performed the
criminal act.  Personal knowledge means actual belief or reasonable grounds of
suspicion, based on actual facts, that the person to be arrested is probably guilty of
committing the crime.[12]

In several cases wherein third persons gave law enforcers information that certain
individuals or groups were engaged in some felonious activities, such relayed
information was not deemed equivalent to personal knowledge of the lawmen.  In
People v. Burgos,[13] a certain Masamlok informed police authorities that the
appellant was involved in subversive activities.  Acting on the strength of such
information and without securing a judicial warrant, the police proceeded to
appellant’s house to arrest him.  There, they also allegedly recovered an unlicensed
firearm and subversive materials.

The Court held that there was no personal knowledge on the part of the arresting
officers, since the information came in its entirety from Masamlok, a civilian.  We
pointed out that at the time of his arrest, appellant was not in actual possession of
any firearm or subversive document; neither was he committing a subversive act.
[14] His warrantless arrest, therefore, could not be allowed under any of the
instances in Rule 113, Section 6 (now 5) of the Rules of Court.

Also in Encinada, the appellant was arrested without a warrant, on the justification
that the arresting officer “received an intelligence report that appellant who was
carrying marijuana would arrive the next morning aboard M/V Sweet Pearl.”  The
Court categorically stated that such “[r]aw intelligence information is not a
sufficient ground for a warrantless arrest.”[15] And since, at the time of his arrest,
no act or fact demonstrating a felonious enterprise could be ascribed to appellant,
there was no valid justification for his arrest.

To be distinguished from the above cases are those involving continuing offenses
for which the culprit could be arrested any time in flagrante delicto.  In Umil v.
Ramos,[16] there were strong objections to the warrantless arrest of a suspected
member of the New People’s Army  (NPA),  while he was being treated for a
gunshot wound in a hospital.  He alleged that there was no valid justification for his
arrest without a warrant, because he was not then committing any offense nor were
there any indications that he had just committed or was about to commit one; he
was in fact confined in a hospital.

The Court held that subversion, for which he was arrested and subsequently
charged, was a continuing offense.  For purposes of arrest, the Court said, the NPA
member “did not cease to be, or became less of a subversive,  xxx  simply because
he was, at the time of his arrest, confined in the  xxx  [hospital].”  “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 object of overthrowing organized government is attained.”[17]

In the above instances where the arrests without warrants were held unlawful, so
were the searches conducted subsequent thereto.  Thus, the items seized
consequent to the invalid search, though clearly prohibited by law (e.g. marijuana
or unlicensed firearm), were considered inadmissible as evidence against the
person wrongfully arrested.  Important to bear in mind always is that any search
conducted without a judicial warrant must be preceded  by a lawful  arrest, whether
with or without a warrant duly issued therefor.

To underscore the rationale behind these strict rules, I deem it quite apt to quote
these inspiring words from the precedent-setting case of People v. Burgos:[18]

“The right of a person to be secure against any unreasonable

seizure of his body and any deprivation of his liberty is a most
basic and fundamental one.  The statute or rule which allows
exceptions to the requirement of warrants of arrest is strictly
construed.  Any exception must clearly fall within the situations
when securing a warrant would be absurd or is manifestly
unnecessary as provided by the Rule.  We cannot liberally construe
the rule on arrests without warrant or extend its application beyond
the cases specifically provided by law.  To do so would infringe
upon personal liberty and set back a basic right so often violated
and so deserving of full protection.”

Valid Searches
Without Warrants

The   general  rule  is  that  a  judicial warrant must first be duly obtained before
search and seizure may be conducted.  The only allowable instances in which a
search may be conducted without a warrant are:  (1) search incident to lawful
arrest, (2) search pursuant to the “plain view” doctrine, (3) search of moving
vehicles, (4) searches incidental to violation of customs laws, (5) search with
consent, and (6) a “stop and frisk.”[19]

1.  Search Incident

to Lawful Arrest

Section 12 of Rule 1326 provides that a lawfully arrested person may be searched
without a warrant for dangerous weapons or anything else that may be used as
evidence of the offense.  Such incidental search is, however, limited to the person
of the arrestee at the time of the apprehension.  The search cannot be extended to
or made in a place other than the place of the arrest.[20]

2.  The “Plain

View” Doctrine

The “plain view” doctrine applies when the following requisites concur:  (1) the law
enforcement officer is in a position where he has a clear view of a particular area or
has prior justification for an intrusion; (2) said officer inadvertently comes across
(or sees in plain view) a piece of incriminating evidence; and (3) it is immediately
apparent to such officer that the item he sees may be evidence of a crime or a
contraband or is otherwise subject to seizure.[21]

3.  Search of
Moving Vehicles
The warrantless search of moving vehicles (including shipping vessels and aircraft)
is justified by practicability, viz.:[22]

“The guaranty of freedom from unreasonable searches and seizures

construed as recognizing a necessary difference between a search
of a dwelling house or other structure in respect of which a search
warrant may readily be obtained and a search of a ship, motorboat,
wagon, or automobile for contraband goods, where 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.

xxx         xxx         xxx

“The automobile is a swift and powerful vehicle  xxx  Constructed

as covered vehicles to standard form in immense quantities, and
with a capacity for speed rivaling express trains, they furnish for
successful commission of crime a distinguishing means of silent
approach and swift escape unknown in the history of the world
before their advent.  The question of their police control and
reasonable search on highways or other public place is a serious
question far deeper and broader than their use in so-called
‘bootlegging’ or ‘rum running,’ which in itself is no small matter. 
While a possession in the sense of private ownership, they are but
a vehicle constructed for travel and transportation on highways. 
Their active use is not in homes or on private premises, the privacy
of which the law especially guards from search and seizure without
process.  The baffling extent to which they are successfully utilized
to facilitate commission of crime of all degrees, from those against
morality, chastity, and decency to robbery, rape, burglary, and
murder, is a matter of common knowledge.  Upon that problem, a
condition, and not a theory, confronts proper administration of our
criminal laws.  Whether search of and seizure from an automobile
upon a highway or other public place without a search warrant is
unreasonable is in its final analysis to be determined as a judicial
question in view of all the circumstances under which it is made.”

4.  Customs Searches

Under the Tariff and Customs Code, searches, seizures and arrests may be made
even without warrants, for purposes of enforcing customs and tariff laws.  Without
mention of the need to priorly obtain a judicial warrant, the Code specifically allows
police authorities to “enter, pass through or search any land, enclosure, warehouse,
store or building, not being a dwelling house; and also to inspect, search and
examine any vessel or aircraft and any trunk, package, box or envelope or any
person on board[;]or stop and search and examine any vehicle, beast or person
suspected of holding or conveying any dutiable or prohibited article introduced into
the Philippines contrary to law.”[23]

5.  Search With Consent

Waiver of any objection to the unreasonableness or invalidity of a search is a

recognized exception to the rule against a warrantless search.[24] The consent to
the search, however, must be express, knowing and voluntary.  A search based
merely on implied acquiescence is not valid, because such consent is not within the
purview of the constitutional guarantee, but only a passive conformity to the search
given under intimidating and coercive circumstances.[25]

In People v. Lacerna,[26] it was held that the otherwise prohibited intrusive search
of appellant’s plastic bag was validated by the express consent of appellant himself,
who was observed to be “urbanized in mannerism and speech,” and who moreover
stated that he had nothing to hide and had done nothing wrong.

6.  “Stop and Frisk”

The “stop and frisk” concept is of American origin, the most notable case thereon
being Terry v. Ohio.[27]  The idea is that a police officer may after properly
introducing himself and making initial inquiries, approach and restrain a person
manifesting unusual and suspicious conduct, in order to check, the latter’s outer
clothing for possibly concealed weapons.  The strict manner in which this notion
should be applied has been laid down as follows:[28]

“xxx  where a police officer observes unusual conduct which leads

him reasonably to conclude in the 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 and 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.”

As in the warrantless arrest of a person reasonably suspected of having just

committed a crime, mere suspicious behavior would not call for a “stop and frisk.” 
There must be a genuine reason, in accordance with the police officer’s experience
and the surrounding conditions, to warrant the belief that the person to be held has
weapons (or contraband) concealed about him.[29]

A valid application of the doctrine was recognized in Posadas v. Court of

Appeals[30] and in Manalili v. Court of Appeals.[31]  In Manalili, the law enforcers,
who were members of the Anti-Narcotics Unit of the Caloocan City Police, observed
during their surveillance that appellant had red eyes and was walking in a wobbly
manner along the city cemetery which, according to police information, was a
popular hangout of drug addicts.  Based on police experience, such suspicious
behavior was characteristic of persons who were “high” on drugs.  The Court held
that past experience and the surrounding circumstances gave the police sufficient
reason to stop the suspect and to investigate if he was really high on drugs.  The
marijuana that they found in the suspect’s possession was held to be admissible in
evidence.

Before I end, I must reiterate that the above exceptions to the general rule on the
necessity of a judicial warrant for any arrest, search and seizure must all be strictly
construed.  Foremost in our minds must still be every person’s prized and
fundamental right to liberty and security, a right protected and guaranteed by our
Constitution.

WHEREFORE, I vote to ACQUIT Appellant Violeta Gaddao y Catama, as well as to

REDUCE the penalty of Appellant Florencio Doria y Bolado to reclusion perpetua
and a fine of P500,000.

[1] GR No. 123872, January 30, 1998.

[2] Malacat v. Court of Appeals, 283 SCRA 159, 174, December 12, 1997.

[3] People v. Burgos, 144 SCRA 1, 14, September 4, 1986; citing Sayo v. Chief of
Police, 80 Phil. 859 (1948).

[4] Malacat v. CA, supra.

[5] 210 SCRA 174, June 22, 1992, per Cruz, J.

[6] Ibid., p. 180.

[7] 163 SCRA 402, July 6, 1988, per Cruz, J.

[8] 280 SCRA 72, October 2, 1997, per Panganiban, J.

[9] Supra.

[10] Malacat v. CA, supra.

[11] People v. Burgos, supra, p. 15, per Gutierrez, J.

[12] Umil v. Ramos, 202 SCRA 251, 263, October 3, 1991.

[13] Supra.

[14] Supra, p. 14.

[15] Supra, p. 87.

[16] 187 SCRA 311, July 9,1990; 202 SCRA 251, October 3, 1991 (per curiam).

[17] The Anti-Subversion Law, which prohibited mere membership in a subversive

organization, has since been repealed.

[18] Supra, p. 14, per Gutierrez, J.

[19] Malacat v. CA, supra, p. 174; citing Mustang Lumber v. Court of Appeals, 257
SCRA 430, 450, 1996; Moreno v. Ago Chi, 12 Phil 439 (1909); Rule 126, § 12,
Rules of Court; and Terry v. Ohio, 392 US 1, 88 S Ct 1868, 20 L Ed 2d 889 (1968). 
See also Roan v. Gonzales, 145 SCRA 687, 697, November 25, 1986; citing several
cases.

[20] Concurring Opinion of Chief Justice Claudio Teehankee in Nolasco v. Paño, 147
SCRA 509, 515, January 30, 1987.

[21] People v. Musa, 217 SCRA 597, 611, January 27, 1993; citing Coolidge v. New
Hampshire, 403 US 443, 29 L ed. 2d 564, 583 (1971); Texas v. Brown, 460 US
730, 75 L ed. 2d 502 (1983); Concurring Opinion by Stewart, Brennan and White,
JJ, in Stanley v. Georgia, 394 US 557, 22 L ed. 2d 542 (1969); and Walter v. US,
447 US 649, 65 L ed. 2d 410 (1980).

[22] Papa v. Mago, 22 SCRA 857, 873-874 (1968), per Zaldivar, J.; quoting from
47 Am Jur 513-514, citing Carroll v. United States, 267 US 132, 69 L ed. 543, 45 S
Ct. 280, 39 ALR 790; and People v. Case, 320 Mich 379, 190 NW 389, 27 ALR 686. 
See also Roldan v. Arca, 65 SCRA 336.

[23] Papa v. Mago, ibid., pp. 871-872, citing pertinent provisions of the Tariff and
Customs Code and Carroll v. United States, 39 ALR 790, 799.  See also People v.
CFI of Rizal, Br. IX, 101 SCRA 86, November 17,1980.

[24] People v. Lacerna, 278 SCRA 561, 576, September 5, 1997; People v.
Fernandez, 239 SCRA 174, December 17, 1994; People v. Barros, 231 SCRA 557,
March 29, 1994; People v. Damaso, 212 SCRA 547, August 12, 1992.

[25] Aniag v. Commission on Elections, 237 SCRA 424, 436-437, October 7,1994.

[26] Supra.

[27] 392 US 1; 88 S Ct. 1868; 20 L ed. 2d 889 (1968).

[28] Ibid., p. 911; quoted in Malacat v. CA, supra.

[29] Malacat v. CA, supra.

[30] 188 SCRA 288, August 2, 1992, per Gancayco, J.

[31] 280 SCRA 400, October 9, 1997, per Panganiban, J.

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408 Phil. 817

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.:

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.

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, Dasmariñas, 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. Español.

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]

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

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:

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. ESPAÑOL

                                                                                                   J u d g e

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 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?
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 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.

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 ¾ 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 ¾ 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.

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 depostion, 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.

Third.  Accused-appellant claims that undue and unnecessary force was

employed by the searching party in effecting the raid.

Rule 126, §7 of the Revised Rules on Criminal Procedure [42] provides:

Right to break door or window to effect search. ¾ The officer, if refused

admittance to the place of directed search after giving notice of his purpose
and authority, may break open any outer or inner door or window of a house
or any part 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.  However, the confiscation of the 1,254 grams of marijuana, as
well as the 11.14 grams of methamphetamine hydrochloride, and its
disposition as ordered by the trial court is AFFIRMED.

SO ORDERED.

Bellosillo, (Chairman), Quisumbing, Buena, and De Leon, Jr., JJ., concur.

[1]
Per Judge Lucas P. Bersamin.

[2]
Rollo, p. 13.

[3]
Id., p. 14.

[4]
RTC Records (Criminal Case No. Q-95-64358), p. 50.

[5]
RTC Records for Search Warrant No. 160, "A," p. 4.

[6]
TSN, p. 4, Oct.  29, 1996.

[7]
Id., pp. 5-6.

[8]
Id., p. 6.

[9]
TSN, p. 22, June 9, 1997.

[10]
Id., p. 7.

[11]
RTC Records (Crim. Case No. Q-95-64358),  p. 10.

[12]
TSN, June 9, 1997, p. 8.

[13]
Id., p. 9.

[14]
Decision, p.3; Rollo, p. 24.

[15]
TSN, pp. 1-4, Nov. 24, 1997.

[16]
Id., pp. 5-6.

[17]
Id., p. 9.

[18]
Id.

[19]
TSN, Oct. 6, 1997.

[20]
Rollo, pp. 40-41.

[21]
Formerly Rule 126, §3 of the 1985 Rules on Criminal Procedure.

[22]
Nolasco v. Paño, 139 SCRA 152 (1985) citing Mata v. Bayona, 128 SCRA
388 (1984).

[23]
Rollo, p. 29.

[24]
RTC Records for Proceedings of Search Warrant No. 160, p. 5.

[25]
55 Cal.2d 789, 13 Cal.Rptr. 415, 362 P.2d 47 (1961) cited in WAYNE R.
LAFAVE, SEARCH AND SEIZURE, A TREATISE ON THE FOURTH AMENDMENT
258 (2d ed. 1987).
[26]
LAFAVE, supra at 28.

[27]
SEC. 8, Possession or Use 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 possess or use any prohibited drug subject to the provisions of
Section 20 hereof.

SEC. 16.  Possession or Use of Regulated Drugs. - The penalty of reclusion

perpetua to death and 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.  (As amended by Sec. 16, RA No.
7659).

[28]
Olaes v. People, 155 SCRA 486, 490-491 (1987).

[29]
223 SCRA 174 (1993).

[30]
Id., pp. 184-185.

[31]
Prudente v. Dayrit, 180 SCRA 69 (1989).

[32]
Appellee's Brief, pp. 8-9; Rollo, pp. 140-141.

[33]
Prudente v. Dayrit, supra.

[34]
Commonwealth v. Todisco, Mass., 294 N.E. 2d 860 (1973).

[35]
People v. Musa, 217 SCRA 597 (1993) citing Harris v. United States, 390
U.S. 234, 19 L.Ed. 2d 1067 (1968).

[36]
People v. Musa, supra citing Coolidge v. New Hampshire, 403 U.S. 433,
29 L. Ed. 2d 564 (1971).

[37]
Coolidge v. New Hampshire, supra.

[38]
People v. Musa, supra, citing Robbins v. California, 453 U.S. 420, 69 L.
Ed. 2d 744 (1981).

[39]
Supra.

[40]
Id., p. 612.

[41]
Nolasco v. Paño, supra.

[42]
Formerly Rule 126, §6 of the 1985 Rules on Criminal Procedure.
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304 Phil. 118

SECOND DIVISION

[ G.R. Nos. 102009-10, July 06, 1994 ]

PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. ROLANDO

DE GRACIA, CHITO HENSON AND JOHN DOES, ACCUSED.  ROLANDO
DE GRACIA, ACCUSED-APPELLANT.

DECISION

REGALADO, J.:
The incidents involved in this case took place at the height of the coup d'etat staged
in December, 1989 by ultra-rightist elements headed by the Reform the Armed
Forces Movement-Soldiers of the Filipino People (RAM-SFP) against the
Government. At that time, various government establishments and military camps
in Metro Manila were being bombarded by the rightist group with their "tora-tora"
planes. At around midnight of November 30, 1989, the 4th Marine Battalion of the
Philippine Marines occupied Villamor Air Base, while the Scout Rangers took over
the Headquarters of the Philippine Army, the Army Operations Center, and Channel
4, the government television station. Also, some elements of the Philippine Army
coming from Fort Magsaysay occupied the Greenhills Shopping Center in San Juan,
Metro Manila.[1]
Accused-appellant Rolando de Gracia was charged in two separate informations for
illegal possession of ammunition and explosives in furtherance of rebellion, and for
attempted homicide, docketed as Criminal Cases Nos. Q-90-11755 and Q-90-
11756, respectively, which were tried jointly by the Regional Trial Court of Quezon
City, Branch 103.
In Criminal Case No. Q-90-11755, Rolando de Gracia, Chito Henson and several
John Does whose true names and identities have not as yet been ascertained, were
charged with the crime of illegal possession of ammunition and explosives in
furtherance of rebellion, penalized under Section 1, paragraph 3, of Presidential
Decree No. 1866, allegedly committed as follows:

"That on or about the 5th day of DECEMBER, 1989, in QUEZON

CITY, METRO MANILA, PHILIPPINES, and within the jurisdiction of
 this Honorable Court, the above-named accused, conspiring and
confederating together and mutually helping one another, and
without authority of law, did then and there willfully, unlawfully,
feloniously and knowingly have in their possession, custody and
control, the following to wit:

Five (5) bundles of C-4 or dynamites

Six (6) cartoons of M-16 ammunition at 20 each

One hundred (100) bottles of MOLOTOV bombs

without first securing the necessary license and/or permit to

possess the same from the proper authorities, and armed with said
dynamites, ammunition and explosives and pursuant to their
conspiracy heretofore agreed upon by them and prompted by
common designs, come to an agreement and decision to commit
the crime of rebellion, by then and there participating therein and
publicly taking arms against the duly constituted authorities, for
the purpose of overthrowing the Government of the Republic of the
Philippines, disrupting and jeopardizing its activities and removing
from its allegiance the territory of the Philippines or parts
thereof."[2]

In Criminal Case No. Q-90-11756, Rolando de Gracia, Chito Henson, Lamberto

Bicus, Rodolfo Tor and several John Does were charged with attempted homicide
allegedly committed on December 1, 1989 in Quezon City upon the person of
Crispin Sagario who was shot and hit on the right thigh.
Appellant was convicted for illegal possession of firearms in furtherance of rebellion,
but was acquitted of attempted homicide.
During the arraignment, appellant pleaded not guilty to both charges. However, he
admitted that he is not authorized to possess any firearms, ammunition and/or
explosive.[3] The parties likewise stipulated that there was a rebellion during the
period from November 30 up to December 9, 1989.[4]
The records show that in the early morning of December 1, 1989, Maj. Efren Soria
of the Intelligence Division, National Capital Region Defense Command, was on
board a brown Toyota car conducting a surveillance of the Eurocar Sales Office
located at Epifanio de los Santos Avenue in Quezon City, together with his team
composed of Sgt. Crispin Sagario, M/Sgt. Ramon Briones, S/Sgt. Henry Aquino, one
S/Sgt. Simon and a Sgt. Ramos. The surveillance, which actually started on the
night of November 30, 1989 at around 10:00 P.M., was conducted pursuant to an
intelligence report received by the division that said establishment was being
occupied by elements of the RAM-SFP as a communication command post.
Sgt. Crispin Sagario, the driver of the car, parked the vehicle around ten to fifteen
meters away from the Eurocar building near P. Tuazon Street, S/Sgt. Henry Aquino
had earlier alighted from the car to conduct his surveillance on foot. A crowd was
then gathered near the Eurocar office watching the on-going bombardment near
Camp Aguinaldo. After a while, a group of five men disengaged themselves from
the crowd and walked towards the car of the surveillance team. At that moment,
Maj. Soria, who was then seated in front, saw the approaching group and
immediately ordered Sgt. Sagario to start the car and leave the area. As they
passed by the group, then only six meters away, the latter pointed to them, drew
their guns and fired at the team, which attack resulted in the wounding of Sgt.
Sagario on the right thigh. Nobody in the surveillance team was able to retaliate
because they sought cover inside the car and they were afraid that civilians or
bystanders might be caught in the cross-fire.
As a consequence, at around 6:30 A.M. of December 5, 1989, a searching team
composed of F/Lt. Virgilio Babao as team leader, M/Sgt. Lacdao, Sgt. Magallion,
Sgt. Patricio Pacatang, and elements of the 16th Infantry Battalion under one Col.
delos Santos raided the Eurocar Sales Office. They were able to find and confiscate
six cartons of M-16 ammunition, five bundles of C-4 dynamites, M-shells of different
calibers, and "molotov" bombs inside one of the rooms belonging to a certain Col.
Matillano which is located at the right portion of the building. Sgt. Oscar Obenia,
the first one to enter the Eurocar building, saw appellant De Gracia inside the office
of Col. Matillano, holding a C-4 and suspiciously peeping through a door. De Gracia
was the only person then present inside the room. A uniform with the nametag of
Col. Matillano was also found. As a result of the raid, the team arrested appellant,
as well as Soprieso Verbo and Roberto Jimena who were janitors at the Eurocar
building. They were then made to sign an inventory, written in Tagalog, of the
explosives and ammunition confiscated by the raiding team. No search warrant was
secured by the raiding team because, according to them, at that time there was so
much disorder considering that the nearby Camp Aguinaldo was being mopped up
by the rebel forces and there was simultaneous firing within the vicinity of the
Eurocar office, aside from the fact that the courts were consequently closed. The
group was able to confirm later that the owner of Eurocar office is a certain Mr.
Gutierrez and that appellant is supposedly a "boy" therein.
Appellant Rolando de Gracia gave another version of the incident. First, he claims
that on November 30, 1989, he was in Antipolo to help in the birthday party of Col.
Matillano. He denies that he was at the Eurocar Sales Office on December 1, 1989.
Second, he contends that when the raiding team arrived at the Eurocar Sales Office
on December 5, 1989, he was inside his house, a small nipa hut which is adjacent
to the building. According to him, he was tasked to guard the office of Col. Matillano
which is located at the right side of the building. He denies, however, that he was
inside the room of Col. Matillano when the raiding team barged in and that he had
explosives in his possession. He testified that when the military raided the office, he
was ordered to get out of his house and made to lie on the ground face down,
together with "Obet" and "Dong" who were janitors of the building. He avers that
he does not know anything about the explosives and insists that when they were
asked to stand up, the explosives were already there.
Appellant stated that he visited Col. Matillano in 1987 at the stockade of the
Philippine Constabulary-Integrated National Police (PC-INP), and that he knew
Matillano was detained because of the latter's involvement in the 1987 coup d'etat.
In July, 1989, appellant again went to see Matillano because he had no job. Col.
Matillano then told him that he could stay in the PC-INP stockade and do the
marketing for them. From that time until his arrest at the Eurocar office, appellant
worked for Matillano.
De Gracia believes that the prosecution witnesses were moved to testify against
him because "bata raw ako ni Col. Matillano eh may atraso daw sa kanila si Col.
Matillano kaya sabi nila ito na lang bata niya ang ipitin natin."
On February 22, 1991, the trial court rendered judgment[5] acquitting appellant
Rolando de Gracia of attempted homicide, but found him guilty beyond reasonable
doubt of the offense of illegal possession of firearms in furtherance of rebellion and
sentenced him to serve the penalty of reclusion perpetua. Moreover, it made a
recommendation that "(i)nasmuch as Rolando de Gracia appears to be merely
executing or obeying orders and pursuant to the spirit contained in the 2nd
paragraph of Art. 135, R.P.C., the court recommends that Rolando de Gracia be
extended executive clemency after serving a jail term of five (5) years of good
behavior."
That judgment of conviction is now challenged before us in this appeal.
Appellant principally contends that he cannot be held guilty of illegal possession of
firearms for the reason that he did not have either physical or constructive
possession thereof considering that he had no intent to possess the same; he is
neither the owner nor a tenant of the building where the ammunition and
explosives were found; he was merely employed by Col. Matillano as an errand
boy; he was guarding the explosives for and in behalf of Col. Matillano; and he did
not have actual possession of the explosives. He claims that intent to possess,
which is necessary before one can be convicted under Presidential Decree No. 1866,
was not present in the case at bar.
Presidential Decree No. 1866 provides as follows:

"SECTION 1. Unlawful Manufacture, Sale, Acquisition, Disposition

or Possession of Firearms or Ammunition or Instruments Used or
intended to be Used in the Manufacture of Firearms or Ammunition.
- The penalty of reclusion temporal in its maximum period to
reclusion perpetua shall be imposed upon any person who shall
unlawfully manufacture, deal in, acquire, dispose, or possess any
firearms, part of firearms, ammunition or machinery, tool or
instrument used or intended to be used in the manufacture of any
firearm or ammunition.

If homicide or murder is committed with the use of an unlicensed

firearm, the penalty of death shall be imposed.

If the violation of this Section is in furtherance of, or incident to, or

in connection with the crimes of rebellion, insurrection or
subversion, the penalty of death shall be imposed."

Presidential Decree No. 1866 was passed because of an upsurge of crimes vitally
affecting public order and safety due to the proliferation of illegally possessed and
manufactured firearms, ammunition and explosives, and which criminal acts have
resulted in loss of human lives, damage to property and destruction of valuable
resources of the country. The series of coup d'etats unleashed in the country during
the first few years of the transitional government under then President Corazon P.
Aquino attest to the ever-growing importance of laws such as Presidential Decree
No. 1866 which seek to nip in the bud and preempt the commission of any act or
acts which tend to disturb public peace and order.
I. The first issue to be resolved is whether or not intent to possess is an essential
element of the offense punishable under Presidential Decree No. 1866 and, if so,
whether appellant De Gracia did intend to illegally possess firearms and
ammunition.
The rule is that ownership is not an essential element of illegal possession of
firearms and ammunition. What the law requires is merely possession which
includes not only actual physical possession but also constructive possession or the
subjection of the thing to one's control and management.[6] This has to be so if the
manifest intent of the law is to be effective. The same evils, the same perils to
public security, which the law penalizes exist whether the unlicensed holder of a
prohibited weapon be its owner or a borrower. To accomplish the object of this law
the proprietary concept of the possession can have no bearing whatsoever.[7]
But is the mere fact of physical or constructive possession sufficient to convict a
person for unlawful possession of firearms or must there be an intent to possess to
constitute a violation of the law? This query assumes significance since the offense
of illegal possession of firearms is a malum prohibitum punished by a special law,
[8] in which case good faith and absence of criminal intent are not valid defenses.
[9]
When the crime is punished by a special law, as a rule, intent to commit the crime
is not necessary. It is sufficient that the offender has the intent to perpetrate the
act prohibited by the special law. Intent to commit the crime and intent to
perpetrate the act must be distinguished. A person may not have consciously
intended to commit a crime; but he did intend to commit an act, and that act is, by
the very nature of things, the crime itself. In the first (intent to commit the crime),
there must be criminal intent; in the second (intent to perpetrate the act) it is
enough that the prohibited act is done freely and consciously.[10]
In the present case, a distinction should be made between criminal intent and
intent to possess. While mere possession, without criminal intent, is sufficient to
convict a person for illegal possession of a firearm, it must still be shown that there
was animus possidendi or an intent to possess on the part of the accused.[11] Such
intent to possess is, however, without regard to any other criminal or felonious
intent which the accused may have harbored in possessing the firearm. Criminal
intent here refers to the intention of the accused to commit an offense with the use
of an unlicensed firearm. This is not important in convicting a person under
Presidential Decree No. 1866. Hence, in order that one may be found guilty of a
violation of the decree, it is sufficient that the accused had no authority or license
to possess a firearm, and that he intended to possess the same, even if such
possession was made in good faith and without criminal intent.
Concomitantly, a temporary, incidental, casual, or harmless possession or control of
a firearm cannot be considered a violation of a statute prohibiting the possession of
this kind of weapon,[12] such as Presidential Decree No. 1866. Thus, although
there is physical or constructive possession, for as long as the animus possidendi is
absent, there is no offense committed.
Coming now to the case before us, there is no doubt in our minds that appellant De
Gracia is indeed guilty of having intentionally possessed several firearms,
explosives and ammunition without the requisite license or authority therefor.
Prosecution witness Sgt. Oscar Abenia categorically testified that he was the first
one to enter the Eurocar Sales Office when the military operatives raided the same,
and he saw De Gracia standing in the room and holding the several explosives
marked in evidence as Exhibits D to D-4.[13] At first, appellant denied any
knowledge about the explosives. Then, he alternatively contended that his act of
guarding the explosives for and in behalf of Col. Matillano does not constitute illegal
possession thereof because there was no intent on his part to possess the same,
since he was merely employed as an errand boy of Col. Matillano. His pretension of
impersonal or indifferent material possession does not and cannot inspire credence.
Animus possidendi is a state of mind which may be determined on a case to case
basis, taking into consideration the prior and coetaneous acts of the accused and
the surrounding circumstances. What exists in the realm of thought is often
disclosed in the range of action. It is not controverted that appellant De Gracia is a
former soldier, having served with the Philippine Constabulary prior to his
separation from the service for going on absence without leave (AWOL).[14] We do
not hesitate, therefore, to believe and conclude that he is familiar with and
knowledgeable about the dynamites, "molotov" bombs, and various kinds of
ammunition which were confiscated by the military from his possession. As a
former soldier, it would be absurd for him not to know anything about the
dangerous uses and power of these weapons. A fortiori, he cannot feign ignorance
on the import of having in his possession such a large quantity of explosives and
ammunition. Furthermore, the place where the explosives were found is not a
military camp or office, nor one where such items can ordinarily but lawfully be
stored, as in a gun store, an arsenal or armory. Even an ordinarily prudent man
would be put on guard and be suspicious if he finds articles of this nature in a place
intended to carry out the business of selling cars and which has nothing to do at all,
directly or indirectly, with the trade of firearms and ammunition.
On the basis of the foregoing disquisition, it is apparent, and we so hold, that
appellant De Gracia actually intended to possess the articles confiscated from his
person.
II. The next question that may be asked is whether or not there was a valid search
and seizure in this case. While the matter has not been squarely put in issue, we
deem it our bounden duty, in light of advertence thereto by the parties, to delve
into the legality of the warrantless search conducted by the raiding team,
considering the gravity of the offense for which herein appellant stands to be
convicted and the penalty sought to be imposed.
It is admitted that the military operatives who raided the Eurocar Sales Office were
not armed with a search warrant at that time.[15] The raid was actually
precipitated by intelligence reports that said office was being used as headquarters
by the RAM.[16] Prior to the raid, there was a surveillance conducted on the
premises wherein the surveillance team was fired at by a group of men coming
from the Eurocar building. When the military operatives raided the place, the
occupants thereof refused to open the door despite requests for them to do so,
thereby compelling the former to break into the Office.[17] The Eurocar Sales Office
is obviously not a gun store and it is definitely not an armory or arsenal which are
the usual depositories for explosives and ammunition. It is primarily and solely
engaged in the sale of automobiles. The presence of an unusual quantity of high-
powered firearms and explosives could not be justifiably or even colorably
explained. In addition, there was general chaos and disorder at that time because
of simultaneous and intense firing within the vicinity of the office and in the nearby
Camp Aguinaldo which was under attack by rebel forces.[18] The courts in the
surrounding areas were obviously closed and, for that matter, the building and
houses therein were deserted.
Under the foregoing circumstances, it is our considered opinion that the instant
case falls under one of the exceptions to the prohibition against a warrantless
search. In the first place, the military operatives, taking into account the facts
obtaining in this case, had reasonable ground to believe that a crime was being
committed. There was consequently more than sufficient probable cause to warrant
their action. Furthermore, under the situation then prevailing, the raiding team had
no opportunity to apply for and secure a search warrant from the courts. The trial
judge himself manifested that on December 5, 1989 when the raid was conducted,
his court was closed.[19] Under such urgency and exigency of the moment, a
search warrant could lawfully be dispensed with.
The view that we here take is in consonance with our doctrinal ruling which was
amply explained in People vs. Malmstedt[20] and bears reiteration:

"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.

"Probable cause has been defined as such facts and circumstances

which would 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. 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.

"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, or where the accused was acting
suspiciously, and attempted to flee.

"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, 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)
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 of the ability and
facility to act accordingly, including, to search even without
warrant, in the light of such circumstances, would be to sanction
impotence and ineffectiveness in law enforcement, to the detriment
of society."

In addition, we find the principle enunciated in Umil, et al. vs. Ramos, et al.,[21]
applicable, by analogy, to the present case:

"The arrest of persons involved in the rebellion whether as its

fighting armed elements, or for committing non-violent acts but in
furtherance of the rebellion, is more an act of capturing them in the
course of an armed conflict, to quell the rebellion, than for the
purpose of immediately prosecuting them in court for a statutory
offense. The arrest, therefore, need not follow the usual procedure
in the prosecution of offenses which requires the determination by
a judge of the existence of probable cause before the issuance of a
judicial warrant of arrest and the granting of bail if the offense is
bailable. Obviously the absence of a judicial warrant is no legal
impediment to arresting or capturing persons committing overt acts
of violence against government forces, or any other milder acts but
really in pursuance of the rebellious movement. The arrest or
capture is thus impelled by the exigencies of the situation that
involves the very survival of society and its government and duly
constituted authorities. If killing and other acts of violence against
the rebels find justification in the exigencies of armed hostilities
which (are) of the essence of waging a rebellion or insurrection,
most assuredly so in case of invasion, merely seizing their persons
 and detaining them while any of these contigencies continues
cannot be less justified."

III. As earlier stated, it was stipulated and admitted by both parties that from
November 30, 1989 up to and until December 9, 1989, there was a
rebellion. Ergo, our next inquiry is whether or not appellant's possession of
the firearms, explosives and ammunition seized and recovered from him was
for the purpose and in furtherance of rebellion.
The trial court found accused guilty of illegal possession of firearms in furtherance
of rebellion pursuant to paragraph 2 of Article 135 of the Revised Penal Code which
states that "any person merely participating or executing the command of others in
a rebellion shall suffer the penalty of prision mayor in its minimum period." The
court below held that appellant De Gracia, who had been servicing the personal
needs of Col. Matillano (whose active armed opposition against the Government,
particularly at the Camelot Hotel, was well known), is guilty of the act of guarding
the explosives and "molotov" bombs for and in behalf of the latter. We accept this
finding of the lower court.
The above provision of the law was, however, erroneously and improperly used by
the court below as a basis in determining the degree of liability of appellant and the
penalty to be imposed on him. It must be made clear that appellant is charged with
the qualified offense of illegal possession of firearms in furtherance of rebellion
under Presidential Decree No. 1866 which, in law, is distinct from the crime of
rebellion punished under Articles 134 and 135 of the Revised Penal Code. These are
two separate statutes penalizing different offenses with discrete penalties. The
Revised Penal Code treats rebellion as a crime apart from murder, homicide, arson,
or other offenses, such as illegal possession of firearms, that might conceivably be
committed in the course of a rebellion. Presidential Decree No. 1866 defines and
punishes, as a specific offense, the crime of illegal possession of firearms
committed in the course or as part of a rebellion.[22]
As a matter of fact, in one case involving the constitutionality of Section 1 of
Presidential Decree No. 1866, the Court has explained that said provision of the law
will not be invalidated by the mere fact that the same act is penalized under two
different statutes with different penalties, even if considered highly advantageous
to the prosecution and onerous to the accused.[23] It follows that, subject to the
presence of the requisite elements in each case, unlawful possession of an
unlicensed firearm in furtherance of rebellion may give rise to separate
prosecutions for a violation of Section 1 of Presidential Decree No. 1866, and also a
violation of Articles 134 and 135 of the Revised Penal Code on rebellion. Double
jeopardy in this case cannot be invoked because the first is an offense punished by
a special law while the second is a felony punished by the Revised Penal Code,[24]
with variant elements.
It was a legal malapropism for the lower court to interject the aforestated provision
of the Revised Penal Code in this prosecution for a crime under a special law.
Consequently, there is no basis for its recommendation for executive clemency in
favor of appellant De Gracia after he shall have served a jail term of five years with
good behavior. In any event, this is a matter within the exclusive prerogative of the
President whose decision thereon should be insulated against any tenuous
importunity.
Withal, we are duly convinced that the firearms, explosives and ammunition
confiscated from appellant De Gracia were illegally possessed by him in furtherance
of the rebellion then admittedly existing at that time. In the words of the court a
quo:

"2. the nature and quantity of the items - 5 bundles of C-4

dynamites, 6 cartons of M-16 ammo and 100 bottles of molotov
bombs indicate that the reports received by the military that the
Eurocar Sales Building was being used by the rebels was not
without basis. Those items are clearly not for one's personal
defense. They are for offensive operations. De Gracia admitted that
per instruction of Col. Matillano he went down to Eurocar Sales
Building from Antipolo to stay guard there.

"His manifestation of innocence of those items and what he has

been guarding in that office is not credible for: (a) he was a former
military personnel; (b) at the birthday party of Col. Matillano on
November 30, 1989 many soldiers and ex-soldiers were present
which self-evidently discloses that De Gracia, in the company of his
boss, was still very much at home and constantly in touch with
soldiers and the armed rebellion of November 30, 1989 to
December 8 or 9, 1989 was a military coup d'etat; (c) it appears
that he is the only person tasked with caretaking (sic) there in the
Matillano office, which shows that he is a highly trusted right-hand
man of Col. Matillano; and (d) as heretofore discussed, de Gracia
was earlier seen with some men who fired upon a car of the AFP
intelligence agents."[25]

Presidential Decree No. 1866 imposes the death penalty where the illegal
possession of firearms and ammunition is committed in furtherance of rebellion. At
the time the offense charged in this case was committed under the governance of
that law, the imposition of the death penalty was proscribed by the Constitution.
Consequently, appellant De Gracia could only be sentenced to serve the penalty of
reclusion perpetua which was correctly meted out by the trial court, albeit with an
erroneous recommendation in connection therewith.
WHEREFORE, the impugned judgment of the trial court is hereby AFFIRMED, but
its recommendation therein for executive clemency and the supposed basis thereof
are hereby DELETED, with costs against accused-appellant.
SO ORDERED.

Narvasa, C.J., (Chairman), Padilla, Puno, and Mendoza, JJ., concur.

[1] TSN, August 28, 1990, 40-42.

[2] Original Record, 1.
[3] Ibid., 52.
[4] Ibid., 97.
[5] Penned by Judge Jaime N. Salazar; Original Record, 146.
[6] People vs. Cruz, G.R. No. 76728, August 30, 1988, 165 SCRA 135; People vs.
Fajardo, et al., 123 Phil. 1348 (1966).
[7] People vs. Estoista, 93 Phil. 647 (1953).
[8] Veroy, et al. vs. Layague, etc., et al., G.R. No. 95630, June 18, 1992, 210 SCRA
97.
[9] People vs. Neri, G.R. No. L-37762, December 19, 1985, 140 SCRA 406.
[10] Reyes, The Revised Penal Code, Book One, 1981, 12th ed., 53.
[11] People vs. Soyang, et al., 110 Phil. 565 (1960); People vs. Lubo, et al., 101
Phil. 179 (1957); U.S. vs. Samson, 16 Phil. 323 (1910).
[12] People vs. Estoista, supra, Fn. 7.
[13] TSN, November 22, 1990, 12.
[14] Ibid., December 6, 1990, 36.
[15] Ibid., November 22, 1990, 33.
[16] Ibid., October 2, 1990, 21-22.
[17] Ibid., id., November 22, 1990, 8.
[18] Ibid., id., October 2, 1990, 16-17.
[19] Ibid., November 29, 1990, 58.
[20] G.R. No. 91107, June 19, 1991, 198 SCRA 401.
[21] G.R. No. 81567, July 9, 1990, 187 SCRA 311.
[22] Baylosis, et al. vs. Chavez, Jr., et al., G.R. No. 95136, October 3, 1991, 202
SCRA 405.
[23] Misolas vs. Panga, etc. et al., G. R. No. 83341, January 30, 1990, 181 SCRA
648.
[24] Cf. People vs. Tiozon, G.R. No. 89823, June 19, 1991, 198 SCRA 368.
[25] Original Record, 149-150.

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260 Phil. 673

EN BANC

[ G. R. No. 80508, January 30, 1990 ]

EDDIE GUAZON, JOSEFINA CABRERA, YOLANDA DACUNES, VIOLETA

SEVILLA, QUERUBIN BILLONES, ESTELITA BILLONES, GORGONIA
MACARAEG, LAUREANA JOAQUIN, CRESTITA LICUP, SOLIDAD
ABURDO, ROSALINA VILLARDA, CONRADA HOBALANE, ERLINDA
RESTORAN, VERIDIAN FLORA, ROSELA CONDE, SOSIMA COSTO,
JOSEFINA ALDIANO, ROSALINA DOMINGO, ARESTIO YANGA,
MILAGROS GONZALES, ESTRELITA ESTARES, BONIFACIA ANTIVO,
PATRIA VALLES, ERLINDA LEE, MELANIO GAROFIL, ERIBERTO
MATEO, FRANCISCO HORTILLANO, ANATALIA PESIMO, LOSENDO
GARBO, VIRGINIA LORESTO, LYDIA ELA, RAFAEL VILLABRILLE, MA.
RECHILDA SABALZA, EDITHA MAAMO, ELENIETA BANOSA,
ALEXANDER LABADO, ANDREW GO, 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.

DECISION

GUTIERREZ, JR., J.:

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.
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, Pinday Pira Extension and San
Sebastian Street, Tondo, Manila.
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 4s00 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 from 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 interrogated and 'verified.' These arrests are all conducted
without 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. 

"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 farces to prevent or suppress lawless violence,
invasion ' or rebellion. x x x."

There can be no question that under ordinary circumstances, the police action, of
the nature described by the petitioners would be illegal and blatantly 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.
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 hits 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:

"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." 
 xxxxxxxxx
Only last year, the Court again issued this reminder in 20th Century Fox Film
Corporation v. Court of Appeals (164 SCRA 655; 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 v.
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 test was administered here would not be considered offensive
by even the most delicate. Furthermore, due process is not
measured by the 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. x x x."

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.
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. 

“’ x x x. 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. x x x 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. x x x. 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 the Right. (Philippine Star,
January 27, 1988, p. 1, Annex 15; underlining ours.'

“Viewed in the light of President Aquino’s observation on the

matter, it can be said that petitioners misrepresent as human
rights violations the military and police’s 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 comment 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 finger point 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."
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 areal target zonings in this petition were intended to flush out subversies and
criminal elements particularity 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 decide to sit down in their offices because all concerted
drives where a show of force is present are totally prohibited.
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 behaviour
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.
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 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.
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.
Cruz, J., see dissent.
Padilla, J., see separate opinion.
Sarmiento, J., dissents, see dissenting opinion.
Griño-Aquino, J., joins JJ., Cruz, Padilla and Sarmiento. 

DISSENTING OPINION 
CRUZ, J.: 
Mr. Justice Gutierrez and I are kindred spirits and usually find ourselves together on
the side of liberty. It saddens me that in the case at bar he is on the side of
authority.
This is not to say that liberty and authority are irreconcilable enemies. The two
must in fact co-exist, for only in a well-ordered society can rights be properly
enjoyed. Implicit in that theory, however, is the other imperative: that the highest
function of authority is to insure liberty.
While acknowledging that the military is conducting saturation drives, the majority
practically blinks them away on mere technicalities. First, there are no proper
parties. Second, there is no proof. Therefore, the petition is dismissed.
The approach is to me too much simplification. We do not choose to see the woods
for the trees. The brutal fact is staring us in the face but we look the other way in
search of excuses.
The majority says it cannot act against the drives because no one directly affected
has complained. Such silence, if I understand, the ponencia correctly, has in effect
purged the drives of all oppressiveness and washed them clean.
(The reason for the silence is fear. These raids are conducted not in the enclaves of
the rich but in the deprived communities, where the residents have no power or
influence. The parties directly aggrieved are afraid. They are the little people. They
cannot protest lest they provoke retaliation for their temerity. Their only hope is in
this Court, and we should not deny them that hope.)
The ruling that the petitioners are not proper parties is a specious pretext for
inaction. We have held that technical objections may be brushed aside where there
are constitutional questions that must be met. There are many decisions applying
this doctrine. (Rodriguez v. Gella, 92 Phil. 603; Tolentino v. Commission on
Elections, 41 SCRA 702; Philconsa v. Jimenez, 65 SCRA 479; Edu v. Ericta, 35
SCRA 481; Gonzales v. Commission on Elections, 27 SCRA 835; Lagunsad v. Court
of Appeals; 154 SCRA 199; Demetria v. Alba, 148 SCRA 208). Lozada was in fact
an aberration.
I believe that where liberty is involved, every person is a proper party even if he
may not be directly injured. Each of us has a duty to protect liberty and that alone
makes him a proper party. It is not only the owner of the burning house who has
the right to call the firemen. Every one has the right and responsibility  to prevent
the fire from spreading even if he lives in the other block.
The majority seems to be willing to just accept the Solicitor General’s assertion that
the claimed abuses are “complete lies” and leave it at that. But a blanket denial is
not enough. The evidence is there on media, in the papers and on radio and
television. That kind of evidence cannot be cavalierly dismissed as “complete lies.”
The saturation drive is not unfamiliar to us. It is like the “zona” of the Japanese
Occupation. An area was surrounded by soldiers and all residents were flushed out
of their houses and lined up, to be looked over by a person with a bag over his
head. This man pointed to suspected guerillas, who were immediately arrested and
eventually if not instantly executed.
To be sure, there are some variations now. The most important difference is that it
is no longer 1943 and the belligerent occupation is over. There is no more war. It is
now 1990, when we are supposed to be under a free Republic and safeguarded by
the Bill of Rights.
Article III, Section 2, clearly 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. (Emphasis
supplied.)

The provision is intended to protect the individual from official (and officious)
intrusions, no matter how humble his abode and however lowly his station in life.
Against the mighty forces of the government, the person’s house is his castle, his
inviolate refuge and exclusive domain where he is the monarch of all he surveys.
Yet in the dead of night, armed soldiers may knock on one’s door and command
him at gunpoint to come out so he and his neighbors, who have also been rounded
up, can all be placed on public examination, as in a slave market. This is followed
by the arrest and detention of those suspected of villainy, usually on the basis only
of the tattoos on their bodies or the informer’s accusing finger.
Where is the search warrant or the warrant of arrest required by the Bill of Rights?
Where is the probable cause that must be determined personally by the judge, and
by no other, to justify the warrant? Where is the examination under oath or
affirmation of the complainant and the witnesses he may produce to establish the
probable cause? Where is the particular description that must be stated in the
warrant, of the places to be searched and the persons or things to be seized? And
where, assuming all these may be dispensed with, is the admissible exception to
the rule?
Saturation drives are not among the accepted instances when a search or an arrest
may be made without warrant. They come under the concept of the fishing
expeditious stigmatized by law and doctrine. At any rate, if the majority is really
introducing the “zona” as another exception to the rule, it must not equivocate. It
must state that intention is forthright language and not in vague generalizations
that concede the wrong but deny the right.
To justify the “zona” on the basis of the recent coup attempt is, in my view, to
becloud the issue. The “zonas” complained of happened before the failed coup and
had nothing whatsoever to do with that disturbance. There was no “large scale
mutiny or actual rebellion” when the saturation drives were conducted and there
were no “combat areas” either in the places where the violations committed. The
failed coup cannot validate the invalid “zonas” retroactively.
The ponencia says that “we cannot take judicial notice of the facts and figures given
by the petitioners regarding these saturation drives conducted by the military and
police authorities.” Maybe so. But we can and should take judicial notice of the
saturation drives themselves which are not and cannot be denied by the
government.
I urge my brethren to accept the fact that those drives are per se unconstitutional.
I urge them to accept that even without proof of the hooded figure and the
personal indignities and the loss and destruction of properties and the other
excesses allegedly committed, the mere waging of the saturation drives alone  is
enough to make this Court react with outraged concern.
Confronted with this clear case of oppression, we should not simply throw up our
hands and proclaim our helplessness. I submit that this Court should instead
declare categorically and emphatically that these saturation drives are violative of
human rights and individual liberty and so should be stopped immediately. While
they may be allowed in the actual theater of military operations against the
insurgents, the Court should also make it clear that Metro Manila is not such a
battleground.
The danger to our free institutions lies not only in those who openly defy the
authority of the government and violate its laws. The greater menace is in those
who, in the name of democracy, destroy the very things it stands for — as in this
case — and so undermine democracy itself.
Where liberty is debased into a cruel illusion, all of us are degraded and diminished.
Liberty is indivisible; it belongs to every one. We should realize that when the bell
tolls the death of liberty for one of us, “it tolls the thee” and for all of us.
 

  SEPARATE OPINION
PADILLA, J. :
This case is another classic instance of state power colliding with individual rights.
That the State, acting through the government and its forces, has the authority to
suppress lawless violence in all its forms cannot be denied. The exercise of that
authority is justified when viewed from the standpoint of the general welfare,
because the State has the elementary and indispensable duty to insure a peaceful
life and existence for its citizens. A government that loses the very right to remain
in power.
But, in the exercise of such authority, i.e., in the choice of the means and methods
to suppress lawless violence, the right of the individual citizens to the dignity of his
person and the sanctity of his home cannot and should not be violated, unless there
is, in a particular case, a clear and present danger of a substantive evil that the
State has a compelling duty to suppress or abate.
Petitioners’ vivid description of the "areal target zoning" or "saturation drive"
allegedly conducted by police and military units in Metro Manila, obviously intended
to ferret out criminals or suspected criminals in certain cordoned areas, while
vigorously denied by respondents, deserves an effective and immediate response
from this Court.
I submit that since this Court is not a trier of facts — and this case involves
certainty of facts alleged by petitioners and denied by respondents — this case
should be referred to a proper trial court where the petitioners can present
evidence to support and prove the allegations they make of such brutal and
inhuman conduct on the part of military and police units.
More than the military and police checkpoints sustained by this Court as a general
proposition during abnormal times,[1] and which involve the right of military and
police forces to check on vehicles and pedestrians passing through certain fixed
points for the purpose of apprehending criminals and/or confiscating prohibited
articles like unlicensed firearms, the “areal target zoning” and “saturation drives”,
as described in petitioners’ allegations, are actual raids on private homes in
selected areas, and are thus positive assaults against the individual person and his
dignity. The individual is, as described, yanked out of his home, without any arrest
warrant, to face investigation as to his connections with lawless elements. In short,
the sanctity of the home is pulverized by military and police action. Thus, while the
checkpoint is a defensive device, on the part of government, the “areal target
zoning” or “saturation drive” is a direct assault against, an intrusion into individual
rights and liberties.
Respondents, fortunately, have branded petitioners’ allegations of such brutality, as
total lies. It is indeed difficult to even contemplate that such methods reminiscent
of a “police state” can exist in a society built on a republican and constitutional
system. Respondents must be given a chance to face their accusers and prove that
they are indeed fabricating falsehoods. But the stakes, I submit, are too high for
this Court, as the guardian of individual liberties, to avoid a judicial confrontation
with the issue.
I vote therefore, to refer this case (dispensing with normal venue requirements) to
the Executive, Judge, RTC of Manila, for him —
1. to receive the evidences of all the parties, in support and in refutation of the
petitioners’ allegations;
2. to decide the case expeditiously on the bases of evidence, subject to review
by this Court;
3. to report to this Court on action taken.
 

[1] Valmonte vs. Gen. de Villa, et al., G.R. No. 83988, 29 September 1989.
 

DISSENTING OPINION
SARMIENTO, J.:
There is only one question here: Whether or not the police actions (saturation
drives) complained of constitute a valid exercise of police power.
The fact that on twelve occasions between March and November, 1987 the military
conducted the saturation drives in question is a fact open to question. The Solicitor
General admits that they, the saturation drives, had been done "with due regard to
human rights." "Not only that." So he states: 

x x x 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.

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 accompanied by a judicial warrant.[1]
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.
According to the majority, “the remedy is not to stop all the police actions,
including the essential and legitimate ones, . . . [w]e see nothing wrong in police
making their presence visibly felt in troubled areas. . . “[2] But 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”[3] 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: 

x x x 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 police decide to sit down in their
offices because all concerted drives where a show of force is
present are totally prohibited.[4]

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.
The fact of the matter is that we are hear confronted by police officers on the beat
or prowl cars on patrol. What we have — and I suppose that everybody is agreed
on it — are lightning raids of homes, arbitrary confiscation of effects, and summary
arrests of persons, the very acts proscribed by the Constitution. If this is a “show of
force”, it certainly has no place in a constitutional democracy.
I find allusions to the last 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 offences being committed, but rather, police officers
fishing for evidence of offences that may have been committed. As I said, in that
event, a court warrant is indispensable.
That “the problem is not initially for the Supreme Court”[5] 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.”[6] 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).
The fact that the majority would “remand” the case to the lower courts and various
echelons of the Executive for investigation is to admit that walls have indeed been
banged, doors kicked in, and half-naked men herded. I do not see therefore why
we can not issue writ of prohibition as prayed for in the midst of this facts.
 

[1] CONS., art. III, sec. 21; People v. Burgos, No. 68955, September 4, 1986, 144
SCRA 1.
[2] Decision, 15; emphasis in the original.
[3] Supra; emphasis in the original.
[4] Supra.
[5] Supra; emphasis in the original.
[6] Supra.

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