consti2 searches and seizures cases

7/24/2019 CONSTI2 Searches and Seizures Cases

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G.R. No. L-19550 June 19, 1967

HARRY S. STONEHILL, ROBERT P. BROOKS, JOHN J. BROOKS and KARL BECK, petitioners,vs.HON. JOSE W. DIOKNO, in his capacity as SECRETARY OF JUSTICE; JOSE LUKBAN, in his capacity as ActingDirector, National Bureau of Investigation; SPECIAL PROSECUTORS PEDRO D. CENZON, EFREN I. PLANA andMANUEL VILLAREAL, JR. and ASST. FISCAL MANASES G. REYES; JUDGE AMADO ROAN, Municipal Court of

Manila; JUDGE ROMAN CANSINO, Municipal Court of Manila; JUDGE HERMOGENES CALUAG, Court of FirstInstance of Rizal-Quezon City Branch, and JUDGE DAMIAN JIMENEZ, Municipal Court of QuezonCity, respondents.

Paredes, Poblador, Cruz and Nazareno and Meer, Meer and Meer and Juan T. David for petitioners.Office of the Solicitor General Arturo A. Alafriz, Assistant Solicitor General Pacifico P. de Castro, Assistant SolicitorGeneral Frine C. Zaballero, Solicitor Camilo D. Quiason and Solicitor C. Padua for respondents.

CONCEPCION, C.J.:

Upon application of the officers of the government named on the margin1 — hereinafter referred to as Respondents-Prosecutors — several judges2 — hereinafter referred to as Respondents-Judges — issued, on different dates,3 a total o42 search warrants against petitioners herein4 and/or the corporations of which they were officers,5 directed to the any

peace officer, to search the persons above-named and/or the premises of their offices, warehouses and/or residencesand to seize and take possession of the following personal property to wit:

Books of accounts, financial records, vouchers, correspondence, receipts, ledgers, journals, portfolios, credi journals, typewriters, and other documents and/or papers showing all business transactions includingdisbursements receipts, balance sheets and profit and loss statements and Bobbins (cigarette wrappers).

as "the subject of the offense; stolen or embezzled and proceeds or fruits of the offense," or "used or intended to be usedas the means of committing the offense," which is described in the applications adverted to above as "violation of CentraBank Laws, Tariff and Customs Laws, Internal Revenue (Code) and the Revised Penal Code."

Alleging that the aforementioned search warrants are null and void, as contravening the Constitution and the Rules of

Court — because, inter alia: (1) they do not describe with particularity the documents, books and things to be seized; (2)cash money, not mentioned in the warrants, were actually seized; (3) the warrants were issued to fish evidence againstthe aforementioned petitioners in deportation cases filed against them; (4) the searches and seizures were made in anillegal manner; and (5) the documents, papers and cash money seized were not delivered to the courts that issued thewarrants, to be disposed of in accordance with law — on March 20, 1962, said petitioners filed with the Supreme Courtthis original action for certiorari , prohibition, mandamus and injunction, and prayed that, pending final disposition of thepresent case, a writ of preliminary injunction be issued restraining Respondents-Prosecutors, their agents and /orrepresentatives from using the effects seized as aforementioned or any copies thereof, in the deportation cases alreadyadverted to, and that, in due course, thereafter, decision be rendered quashing the contested search warrants anddeclaring the same null and void, and commanding the respondents, their agents or representatives to return topetitioners herein, in accordance with Section 3, Rule 67, of the Rules of Court, the documents, papers, things and cashmoneys seized or confiscated under the search warrants in question.

In their answer, respondents-prosecutors alleged,6

(1) that the contested search warrants are valid and have been issuedin accordance with law; (2) that the defects of said warrants, if any, were cured by petitioners' consent; and (3) that, in anyevent, the effects seized are admissible in evidence against herein petitioners, regardless of the alleged illegality of theaforementioned searches and seizures.

On March 22, 1962, this Court issued the writ of preliminary injunction prayed for in the petition. However, by resolutiondated June 29, 1962, the writ was partially lifted or dissolved, insofar as the papers, documents and things seized fromthe offices of the corporations above mentioned are concerned; but, the injunction was maintained as regards the papersdocuments and things found and seized in the residences of petitioners herein.7

Thus, the documents, papers, and things seized under the alleged authority of the warrants in question may be split intotwo (2) major groups, namely: (a) those found and seized in the offices of the aforementioned corporations, and (b) thosefound and seized in the residences of petitioners herein.



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As regards the first group, we hold that petitioners herein have no cause of action to assail the legality of the contestedwarrants and of the seizures made in pursuance thereof, for the simple reason that said corporations have their respectivepersonalities, separate and distinct from the personality of herein petitioners, regardless of the amount of shares of stockor of the interest of each of them in said corporations, and whatever the offices they hold therein may be. 8 Indeed, it iswell settled that the legality of a seizure can be contested only by the party whose rights have been impairedthereby,9 and that the objection to an unlawful search and seizure is purely personal and cannot be availed of by thirdparties. 10 Consequently, petitioners herein may not validly object to the use in evidence against them of the documents

papers and things seized from the offices and premises of the corporations adverted to above, since the right to object tothe admission of said papers in evidence belongsexclusively to the corporations, to whom the seized effects belong, andmay not be invoked by the corporate officers in proceedings against them in their individual capacity. 11 Indeed, it hasbeen held:

. . . that the Government's action in gaining possession of papers belonging to the corporation did not relate to nodid it affect the personal defendants. If these papers were unlawfully seized and thereby the constitutional rightsof or any one were invaded, they were the rights of the corporation and not the rights of the other defendantsNext, it is clear that a question of the lawfulness of a seizure can be raised only by one whose rights have beeninvaded . Certainly, such a seizure, if unlawful, could not affect the constitutional rights of defendants whose property had not been seized or the privacy of whose homes had not been disturbed ; nor could they claim fothemselves the benefits of the Fourth Amendment, when its violation, if any, was with reference to the rightsof another . Remus vs. United States (C.C.A.)291 F. 501, 511. It follows, therefore, that the question of the

admissibility of the evidence based on an alleged unlawful search and seizure does not extend to the personadefendants but embraces only the corporation whose property was taken. . . . (A Guckenheimer & Bros. Co. vs.United States, [1925] 3 F. 2d. 786, 789, Emphasis supplied.)

With respect to the documents, papers and things seized in the residences of petitioners herein, the aforementionedresolution of June 29, 1962, lifted the writ of preliminary injunction previously issued by this Court,12 thereby, in effectrestraining herein Respondents-Prosecutors from using them in evidence against petitioners herein.

In connection with said documents, papers and things, two (2) important questions need be settled, namely: (1) whetherthe search warrants in question, and the searches and seizures made under the authority thereof, are valid or not, and (2)if the answer to the preceding question is in the negative, whether said documents, papers and things may be used inevidence against petitioners herein.1äwphï1.ñët

Petitioners maintain that the aforementioned search warrants are in the nature of general warrants and that accordingly,the seizures effected upon the authority there of are null and void. In this connection, the Constitution 13 provides:

The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searchesand seizures shall not be violated, and no warrants shall issue but upon probable cause, to be determined by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, andparticularly describing the place to be searched, and the persons or things to be seized.

Two points must be stressed in connection with this constitutional mandate, namely: (1) that no warrant shall issuebut upon probable cause, to be determined by the judge in the manner set forth in said provision; and (2) that the warrantshall particularly describe the things to be seized.

None of these requirements has been complied with in the contested warrants. Indeed, the same were issued uponapplications stating that the natural and juridical person therein named had committed a "violation of Central Ban Laws,Tariff and Customs Laws, Internal Revenue (Code) and Revised Penal Code." In other words, nospecific offense hadbeen alleged in said applications. The averments thereof with respect to the offense committed were abstract . As aconsequence, it was impossible for the judges who issued the warrants to have found the existence of probable cause, fothe same presupposes the introduction of competent proof that the party against whom it is sought hasperformed particular acts, or committed specific omissions, violating a given provision of our criminal laws. As a matter offact, the applications involved in this case do not allege any specific acts performed by herein petitioners. It would be thelegal heresy, of the highest order, to convict anybody of a "violation of Central Bank Laws, Tariff and Customs LawsInternal Revenue (Code) and Revised Penal Code," — as alleged in the aforementioned applications — without referenceto any determinate provision of said laws or



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To uphold the validity of the warrants in question would be to wipe out completely one of the most fundamental rightsguaranteed in our Constitution, for it would place the sanctity of the domicile and the privacy of communication andcorrespondence at the mercy of the whims caprice or passion of peace officers. This is precisely the evil sought to beremedied by the constitutional provision above quoted — to outlaw the so-called general warrants. It is not difficult toimagine what would happen, in times of keen political strife, when the party in power feels that the minority is likely towrest it, even though by legal means.

Such is the seriousness of the irregularities committed in connection with the disputed search warrants, that this Courdeemed it fit to amend Section 3 of Rule 122 of the former Rules of Court 14 by providing in its counterpart, under theRevised Rules of Court 15 that "a search warrant shall not issue but upon probable cause in connection with one specificoffense." Not satisfied with this qualification, the Court added thereto a paragraph, directing that "no search warrant shalissue for more than one specific offense."

The grave violation of the Constitution made in the application for the contested search warrants was compounded by thedescription therein made of the effects to be searched for and seized, to wit:

Books of accounts, financial records, vouchers, journals, correspondence, receipts, ledgers, portfolios, credi journals, typewriters, and other documents and/or papers showing all business transactions includingdisbursement receipts, balance sheets and related profit and loss statements.

Thus, the warrants authorized the search for and seizure of records pertaining to all business transactions of petitionersherein, regardless of whether the transactions were legal or illegal . The warrants sanctioned the seizure of all records ofthe petitioners and the aforementioned corporations, whatever their nature, thus openly contravening the explicicommand of our Bill of Rights — that the things to be seized be particularly described — as well as tending to defeat itsmajor objective: the elimination of general warrants.

Relying upon Moncado vs. People's Court (80 Phil. 1), Respondents-Prosecutors maintain that, even if the searches andseizures under consideration were unconstitutional, the documents, papers and things thus seized are admissible inevidence against petitioners herein. Upon mature deliberation, however, we are unanimously of the opinion that theposition taken in the Moncado case must be abandoned. Said position was in line with the American common law rulethat the criminal should not be allowed to go free merely "because the constable has blundered," 16 upon the theory thathe constitutional prohibition against unreasonable searches and seizures is protected by means other than the exclusionof evidence unlawfully obtained, 17 such as the common-law action for damages against the searching officer, against the

party who procured the issuance of the search warrant and against those assisting in the execution of an illegal search,their criminal punishment, resistance, without liability to an unlawful seizure, and such other legal remedies as may beprovided by other laws.

However, most common law jurisdictions have already given up this approach and eventually adopted the exclusionaryrule, realizing that this is the only practical means of enforcing the constitutional injunction against unreasonable searchesand seizures. In the language of Judge Learned Hand:

As we understand it, the reason for the exclusion of evidence competent as such, which has been unlawfullyacquired, is that exclusion is the only practical way of enforcing the constitutional privilege. In earlier times theaction of trespass against the offending official may have been protection enough; but that is true no longer. Onlyin case the prosecution which itself controls the seizing officials, knows that it cannot profit by their wrong will thawrong be repressed .18

In fact, over thirty (30) years before, the Federal Supreme Court had already declared:

If letters and private documents can thus be seized and held and used in evidence against a citizen accused of anoffense, the protection of the 4th Amendment, declaring his rights to be secure against such searches andseizures, is of no value, and, so far as those thus placed are concerned, might as well be stricken from theConstitution. The efforts of the courts and their officials to bring the guilty to punishment, praiseworthy as they are,are not to be aided by the sacrifice of those great principles established by years of endeavor and suffering whichhave resulted in their embodiment in the fundamental law of the land .19

This view was, not only reiterated, but, also, broadened in subsequent decisions on the same Federal Court. 20 Aftereviewing previous decisions thereon, said Court held, in Mapp vs. Ohio (supra.):



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. . . Today we once again examine the Wolf's constitutional documentation of the right of privacy free fromunreasonable state intrusion, and after its dozen years on our books, are led by it to close the only courtroomdoor remaining open to evidence secured by official lawlessness in flagrant abuse of that basic right, reserved toall persons as a specific guarantee against that very same unlawful conduct. We hold that all evidence obtainedby searches and seizures in violation of the Constitution is, by that same authority, inadmissible in a State.

Since the Fourth Amendment's right of privacy has been declared enforceable against the States through the Due

Process Clause of the Fourteenth, it is enforceable against them by the same sanction of exclusion as it usedagainst the Federal Government. Were it otherwise, then just as without the Weeks rule the assurance againstunreasonable federal searches and seizures would be "a form of words," valueless and underserving of mentionin a perpetual charter of inestimable human liberties, so too, without that rule the freedom from state invasions o privacy would be so ephemeral and so neatly severed from its conceptual nexus with the freedom from all brutishmeans of coercing evidence as not to permit this Court's high regard as a freedom "implicit in the concept oordered liberty ." At the time that the Court held in Wolf that the amendment was applicable to the States throughthe Due Process Clause, the cases of this Court as we have seen, had steadfastly held that as to federal officersthe Fourth Amendment included the exclusion of the evidence seized in violation of its provisions. Even Wolf"stoutly adhered" to that proposition. The right to when conceded operatively enforceable against the States, wasnot susceptible of destruction by avulsion of the sanction upon which its protection and enjoyment had alwaysbeen deemed dependent under the Boyd, Weeks and Silverthorne Cases. Therefore, in extending the substantiveprotections of due process to all constitutionally unreasonable searches — state or federal — it was logically and

constitutionally necessarily that the exclusion doctrine — an essential part of the right to privacy — be alsoinsisted upon as an essential ingredient of the right newly recognized by the Wolf Case. In short, the admission othe new constitutional Right by Wolf could not tolerate denial of its most important constitutional privilege, namely,the exclusion of the evidence which an accused had been forced to give by reason of the unlawful seizure. Tohold otherwise is to grant the right but in reality to withhold its privilege and enjoyment . Only last year the Couritself recognized that the purpose of the exclusionary rule to "is to deter — to compel respect for the constitutionaguaranty in the only effectively available way — by removing the incentive to disregard it " . . . .

The ignoble shortcut to conviction left open to the State tends to destroy the entire system of constitutionalrestraints on which the liberties of the people rest. Having once recognized that the right to privacy embodied inthe Fourth Amendment is enforceable against the States, and that the right to be secure against rude invasions ofprivacy by state officers is, therefore constitutional in origin, we can no longer permit that right to remain an empty promise. Because it is enforceable in the same manner and to like effect as other basic rights secured by its Due

Process Clause, we can no longer permit it to be revocable at the whim of any police officer who, in the name oflaw enforcement itself, chooses to suspend its enjoyment. Our decision, founded on reason and truth, gives to theindividual no more than that which the Constitution guarantees him to the police officer no less than that to whichhonest law enforcement is entitled, and, to the courts, that judicial integrity so necessary in the true administrationof justice. (emphasis ours.)

Indeed, the non-exclusionary rule is contrary, not only to the letter, but also, to the spirit of the constitutional injunctionagainst unreasonable searches and seizures. To be sure, if the applicant for a search warrant has competent evidence toestablish probable cause of the commission of a given crime by the party against whom the warrant is intended, thenthere is no reason why the applicant should not comply with the requirements of the fundamental law. Upon the otherhand, if he has no such competent evidence, then it is not possible for the Judge to find that there is probable cause, andhence, no justification for the issuance of the warrant. The only possible explanation (not justification) for its issuance isthe necessity of fishing evidence of the commission of a crime. But, then, this fishing expedition is indicative of theabsence of evidence to establish a probable cause.

Moreover, the theory that the criminal prosecution of those who secure an illegal search warrant and/or makeunreasonable searches or seizures would suffice to protect the constitutional guarantee under consideration, overlooksthe fact that violations thereof are, in general, committed By agents of the party in power, for, certainly, those belonging tothe minority could not possibly abuse a power they do not have. Regardless of the handicap under which the minorityusually — but, understandably — finds itself in prosecuting agents of the majority, one must not lose sight of the fact thatthe psychological and moral effect of the possibility 21 of securing their conviction, is watered down by the pardoningpower of the party for whose benefit the illegality had been committed.

In their Motion for Reconsideration and Amendment of the Resolution of this Court dated June 29, 1962, petitioners allegethat Rooms Nos. 81 and 91 of Carmen Apartments, House No. 2008, Dewey Boulevard, House No. 1436, ColoradoStreet, and Room No. 304 of the Army-Navy Club, should be included among the premises considered in said Resolution



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as residences of herein petitioners, Harry S. Stonehill, Robert P. Brook, John J. Brooks and Karl Beck, respectively, andthat, furthermore, the records, papers and other effects seized in the offices of the corporations above referred to includepersonal belongings of said petitioners and other effects under their exclusive possession and control, for the exclusion ofwhich they have a standing under the latest rulings of the federal courts of federal courts of the United States. 22

We note, however, that petitioners' theory, regarding their alleged possession of and control over the aforementionedrecords, papers and effects, and the alleged "personal" nature thereof, has Been Advanced, not in their petition o

amended petition herein, but in the Motion for Reconsideration and Amendment of the Resolution of June 29, 1962. Inother words, said theory would appear to be readjustment of that followed in said petitions, to suit the approach intimatedin the Resolution sought to be reconsidered and amended. Then, too, some of the affidavits or copies of alleged affidavitsattached to said motion for reconsideration, or submitted in support thereof, contain either inconsistent allegations, orallegations inconsistent with the theory now advanced by petitioners herein.

Upon the other hand, we are not satisfied that the allegations of said petitions said motion for reconsideration, and thecontents of the aforementioned affidavits and other papers submitted in support of said motion, have sufficientlyestablished the facts or conditions contemplated in the cases relied upon by the petitioners; to warrant application of theviews therein expressed, should we agree thereto. At any rate, we do not deem it necessary to express our opinionthereon, it being best to leave the matter open for determination in appropriate cases in the future.

We hold, therefore, that the doctrine adopted in the Moncado case must be, as it is hereby, abandoned; that the warrants

for the search of three (3) residences of herein petitioners, as specified in the Resolution of June 29, 1962, are null andvoid; that the searches and seizures therein made are illegal; that the writ of preliminary injunction heretofore issued, inconnection with the documents, papers and other effects thus seized in said residences of herein petitioners is herebymade permanent; that the writs prayed for are granted, insofar as the documents, papers and other effects so seized inthe aforementioned residences are concerned; that the aforementioned motion for Reconsideration and Amendmentshould be, as it is hereby, denied; and that the petition herein is dismissed and the writs prayed for denied, as regards thedocuments, papers and other effects seized in the twenty-nine (29) places, offices and other premises enumerated in thesame Resolution, without special pronouncement as to costs.

It is so ordered.

Reyes, J.B.L., Dizon, Makalintal, Bengzon, J.P., Zaldivar and Sanchez, JJ., concur.

CASTRO, J., concurring and dissenting:

From my analysis of the opinion written by Chief Justice Roberto Concepcion and from the import of the deliberations ofthe Court on this case, I gather the following distinct conclusions:

1. All the search warrants served by the National Bureau of Investigation in this case are general warrants andare therefore proscribed by, and in violation of, paragraph 3 of section 1 of Article III (Bill of Rights) of theConstitution;

2. All the searches and seizures conducted under the authority of the said search warrants were consequentlyillegal;

3. The non-exclusionary rule enunciated in Moncado vs. People, 80 Phil. 1, should be, and is declaredabandoned;

4. The search warrants served at the three residences of the petitioners are expressly declared null and void thesearches and seizures therein made are expressly declared illegal; and the writ of preliminary injunctionheretofore issued against the use of the documents, papers and effect seized in the said residences is madepermanent; and

5. Reasoning that the petitioners have not in their pleadings satisfactorily demonstrated that they have legastanding to move for the suppression of the documents, papers and effects seized in the places other than thethree residences adverted to above, the opinion written by the Chief Justice refrains from expressly declaring as



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null and void the such warrants served at such other places and as illegal the searches and seizures madetherein, and leaves "the matter open for determination in appropriate cases in the future."

It is precisely the position taken by the Chief Justice summarized in the immediately preceding paragraph (numbered 5)with which I am not in accord.

I do not share his reluctance or unwillingness to expressly declare, at this time, the nullity of the search warrants served a

places other than the three residences, and the illegibility of the searches and seizures conducted under the authoritythereof. In my view even the exacerbating passions and prejudices inordinately generated by the environmental politicaand moral developments of this case should not deter this Court from forthrightly laying down the law not only for this casebut as well for future cases and future generations. All the search warrants, without exception, in this case are admittedlygeneral, blanket and roving warrants and are therefore admittedly and indisputably outlawed by the Constitution; and thesearches and seizures made were therefore unlawful. That the petitioners, let us assume in gratia argumente, have nolegal standing to ask for the suppression of the papers, things and effects seized from places other than their residences,to my mind, cannot in any manner affect, alter or otherwise modify the intrinsic nullity of the search warrants and theintrinsic illegality of the searches and seizures made thereunder. Whether or not the petitioners possess legal standing thesaid warrants are void and remain void, and the searches and seizures were illegal and remain illegal. No inference canbe drawn from the words of the Constitution that "legal standing" or the lack of it is a determinant of the nullity or validity ofa search warrant or of the lawfulness or illegality of a search or seizure.

On the question of legal standing, I am of the conviction that, upon the pleadings submitted to this Court the petitionershave the requisite legal standing to move for the suppression and return of the documents, papers and effects that wereseized from places other than their family residences.

Our constitutional provision on searches and seizures was derived almost verbatim from the Fourth Amendment to theUnited States Constitution. In the many years of judicial construction and interpretation of the said constitutional provisionour courts have invariably regarded as doctrinal the pronouncement made on the Fourth Amendment by federal courts,especially the Federal Supreme Court and the Federal Circuit Courts of Appeals.

The U.S. doctrines and pertinent cases on standing to move for the suppression or return of documents, papers andeffects which are the fruits of an unlawful search and seizure, may be summarized as follows; (a) ownership ofdocuments, papers and effects gives "standing;" (b) ownership and/or control or possession — actual or constructive — opremises searched gives "standing"; and (c) the "aggrieved person" doctrine where the search warrant and the sworn

application for search warrant are "primarily" directed solely and exclusively against the "aggrieved person," gives"standing."

An examination of the search warrants in this case will readily show that, excepting three, all were directed against thepetitioners personally. In some of them, the petitioners were named personally, followed by the designation, "thePresident and/or General Manager" of the particular corporation. The three warrants excepted named three corporatedefendants. But the "office/house/warehouse/premises" mentioned in the said three warrants were also the same"office/house/warehouse/premises" declared to be owned by or under the control of the petitioners in all the other searchwarrants directed against the petitioners and/or "the President and/or General Manager" of the particular corporation. (seepages 5-24 of Petitioners' Reply of April 2, 1962). The searches and seizures were to be made, and were actually made,in the "office/house/warehouse/premises" owned by or under the control of the petitioners.

Ownership of matters seized gives "standing."

Ownership of the properties seized alone entitles the petitioners to bring a motion to return and suppress, and gives themstanding as persons aggrieved by an unlawful search and seizure regardless of their location at the time of seizure. Jonesvs. United States, 362 U.S. 257, 261 (1960) (narcotics stored in the apartment of a friend of the defendant); Henzel vsUnited States, 296 F. 2d. 650, 652-53 (5th Cir. 1961), (personal and corporate papers of corporation of which thedefendant was president), United States vs. Jeffers, 342 U.S. 48 (1951) (narcotics seized in an apartment not belongingto the defendant); Pielow vs. United States, 8 F. 2d 492, 493 (9th Cir. 1925) (books seized from the defendant's sister butbelonging to the defendant); Cf. Villano vs. United States, 310 F. 2d 680, 683 (10th Cir. 1962) (papers seized in deskneither owned by nor in exclusive possession of the defendant).



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In a very recent case (decided by the U.S. Supreme Court on December 12, 1966), it was held that under theconstitutional provision against unlawful searches and seizures, a person places himself or his property within aconstitutionally protected area, be it his home or his office, his hotel room or his automobile:

Where the argument falls is in its misapprehension of the fundamental nature and scope of Fourth Amendmentprotection. What the Fourth Amendment protects is the security a man relies upon when he places himself or his property within a constitutionally protected area, be it his home or his office, his hotel room or his automobile

There he is protected from unwarranted governmental intrusion. And when he puts some thing in his filingcabinet, in his desk drawer, or in his pocket, he has the right to know it will be secure from an unreasonablesearch or an unreasonable seizure. So it was that the Fourth Amendment could not tolerate the warrantlesssearch of the hotel room in Jeffers, the purloining of the petitioner's private papers in Gouled , or the surreptitiouselectronic surveilance in Silverman. Countless other cases which have come to this Court over the years haveinvolved a myriad of differing factual contexts in which the protections of the Fourth Amendment have beenappropriately invoked. No doubt, the future will bring countless others. By nothing we say here do we eitherforesee or foreclose factual situations to which the Fourth Amendment may be applicable. (Hoffa vs. U.S., 87 SCt. 408 (December 12, 1966). See also U.S. vs. Jeffers, 342 U.S. 48, 72 S. Ct. 93 (November 13, 1951)(Emphasis supplied).

Control of premises searched gives "standing."

Independent of ownership or other personal interest in the records and documents seized, the petitioners have standing tomove for return and suppression by virtue of their proprietary or leasehold interest in many of the premises searchedThese proprietary and leasehold interests have been sufficiently set forth in their motion for reconsideration and need nobe recounted here, except to emphasize that the petitioners paid rent, directly or indirectly, for practically all the premisessearched (Room 91, 84 Carmen Apts; Room 304, Army & Navy Club; Premises 2008, Dewey Boulevard; 1436 ColoradoStreet); maintained personal offices within the corporate offices (IBMC, USTC); had made improvements or furnishedsuch offices; or had paid for the filing cabinets in which the papers were stored (Room 204, Army & Navy Club); andindividually, or through their respective spouses, owned the controlling stock of the corporations involved. The petitionersproprietary interest in most, if not all, of the premises searched therefore independently gives them standing to move forthe return and suppression of the books, papers and affects seized therefrom.

In Jones vs. United States, supra, the U.S. Supreme Court delineated the nature and extent of the interest in the searchedpremises necessary to maintain a motion to suppress. After reviewing what it considered to be the unduly technical

standard of the then prevailing circuit court decisions, the Supreme Court said (362 U.S. 266):

We do not lightly depart from this course of decisions by the lower courts. We are persuaded, however, that it isunnecessarily and ill-advised to import into the law surrounding the constitutional right to be free fromunreasonable searches and seizures subtle distinctions, developed and refined by the common law in evolvingthe body of private property law which, more than almost any other branch of law, has been shaped bydistinctions whose validity is largely historical. Even in the area from which they derive, due consideration has ledto the discarding of those distinctions in the homeland of the common law. See Occupiers' Liability Act, 1957, 5and 6 Eliz. 2, c. 31, carrying out Law Reform Committee, Third Report, Cmd. 9305. Distinctions such as thosebetween "lessee", "licensee," "invitee," "guest," often only of gossamer strength, ought not be determinative infashioning procedures ultimately referable to constitutional safeguards. See also Chapman vs. United States, 354U.S. 610, 616-17 (1961).

It has never been held that a person with requisite interest in the premises searched must own the property seized inorder to have standing in a motion to return and suppress. In Alioto vs. United States, 216 F. Supp. 48 (1963), aBookkeeper for several corporations from whose apartment the corporate records were seized successfully moved fortheir return. In United States vs. Antonelli, Fireworks Co., 53 F. Supp. 870, 873 (W D. N. Y. 1943), the corporation'spresident successfully moved for the return and suppression is to him of both personal and corporate documents seizedfrom his home during the course of an illegal search:

The lawful possession by Antonelli of documents and property, "either his own or the corporation's was entitled toprotection against unreasonable search and seizure. Under the circumstances in the case at bar, the search andseizure were unreasonable and unlawful. The motion for the return of seized article and the suppression of theevidence so obtained should be granted. (Emphasis supplied).



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Time was when only a person who had property in interest in either the place searched or the articles seize had thenecessary standing to invoke the protection of the exclusionary rule. But in MacDonald vs. Unite States, 335 U.S. 461(1948), Justice Robert Jackson joined by Justice Felix Frankfurter, advanced the view that "even a guest may expect theshelter of the rooftree he is under against criminal intrusion." This view finally became the official view of the U.SSupreme Court and was articulated in United States vs. Jeffers, 432 U.S 48 (1951). Nine years later, in 1960, in Jones vsUnite States, 362 U.S. 257, 267, the U.S. Supreme Court went a step further. Jones was a mere guest in the apartmentunlawfully searched but the Court nonetheless declared that the exclusionary rule protected him as well. The concept of

"person aggrieved by an unlawful search and seizure" was enlarged to include "anyone legitimately on premise where thesearch occurs."

Shortly after the U.S. Supreme Court's Jones decision the U.S. Court of Appeals for the Fifth Circuit held that thedefendant organizer, sole stockholder and president of a corporation had standing in a mail fraud prosecution against himto demand the return and suppression of corporate property. Henzel vs. United States, 296 F 2d 650, 652 (5th Cir1961), supra. The court conclude that the defendant had standing on two independent grounds:First — he had a sufficieninterest in the property seized, and second — he had an adequate interest in the premises searched (just like in the caseat bar). A postal inspector had unlawfully searched the corporation' premises and had seized most of the corporation'sbook and records. Looking to Jones, the court observed:

Jones clearly tells us, therefore, what is not required qualify one as a "person aggrieved by an unlawful searchand seizure." It tells us that appellant should not have been precluded from objecting to the Postal Inspector's

search and seizure of the corporation's books and records merely because the appellant did not show ownershipor possession of the books and records or a substantial possessory interest in the invade premises . . . ( Henzevs. United States, 296 F. 2d at 651). .

Henzel was soon followed by Villano vs. United States, 310 F. 2d 680, 683, (10th Cir. 1962). In Villano, police officersseized two notebooks from a desk in the defendant's place of employment; the defendant did not claim ownership ofeither; he asserted that several employees (including himself) used the notebooks. The Court held that the employee hada protected interest and that there also was an invasion of privacy. Both Henzel andVillano considered also the fact thathe search and seizure were "directed at" the moving defendant. Henzel vs. United States, 296 F. 2d at 682; Villano vsUnited States, 310 F. 2d at 683.

In a case in which an attorney closed his law office, placed his files in storage and went to Puerto Rico, the Court of Appeals for the Eighth Circuit recognized his standing to move to quash as unreasonable search and seizure under the

Fourth Amendment of the U.S. Constitution a grand jury subpoena duces tecum directed to the custodian of his files. TheGovernment contended that the petitioner had no standing because the books and papers were physically in thepossession of the custodian, and because the subpoena was directed against the custodian. The court rejected thecontention, holding that

Schwimmer legally had such possession, control and unrelinquished personal rights in the books and papers asnot to enable the question of unreasonable search and seizure to be escaped through the mere procedural deviceof compelling a third-party naked possessor to produce and deliver them. Schwimmer vs. United States, 232 F2d 855, 861 (8th Cir. 1956).

Aggrieved person doctrine where the search warrant s primarily directed against said person gives "standing."

The latest United States decision squarely in point is United States vs. Birrell , 242 F. Supp. 191 (1965, U.S.D.CS.D.N.Y.). The defendant had stored with an attorney certain files and papers, which attorney, by the name of Dunn, wasnot, at the time of the seizing of the records, Birrell's attorney. * Dunn, in turn, had stored most of the records at his homein the country and on a farm which, according to Dunn's affidavit, was under his (Dunn's) "control and management." Thepapers turned out to be private, personal and business papers together with corporate books and records of certainunnamed corporations in which Birrell did not even claim ownership. (All of these type records were seized in the case abar). Nevertheless, the search in Birrell was held invalid by the court which held that even though Birrell did not own thepremises where the records were stored, he had "standing" to move for the return of all the papers and properties seizedThe court, relying on Jones vs. U.S.,supra; U.S. vs. Antonelli Fireworks Co., 53 F. Supp. 870, Aff'd 155 F. 2d 631: Henzevs. U.S., supra; andSchwimmer vs. U.S., supra, pointed out that

It is overwhelmingly established that the searches here in question were directed solely and exclusively againsBirrell. The only person suggested in the papers as having violated the law was Birrell. The first search warrant



9

described the records as having been used "in committing a violation of Title 18, United States Code, Section1341, by the use of the mails by one Lowell M. Birrell, . . ." The second search warrant was captioned: " UnitedStates of America vs. Lowell M. Birrell . (p. 198)

Possession (actual or constructive), no less than ownership, gives standing to move to suppress. Such was therule even before Jones. (p. 199)

If, as thus indicated Birrell had at least constructive possession of the records stored with Dunn, it matters notwhether he had any interest in the premises searched. See also Jeffers v. United States, 88 U.S. Appl. D.C. 58187 F. 2d 498 (1950), affirmed 432 U.S. 48, 72 S. Ct. 93, 96 L. Ed. 459 (1951).

The ruling in the Birrell case was reaffirmed on motion for reargument; the United States did not appeal from this decisionThe factual situation in Birrell is strikingly similar to the case of the present petitioners; as in Birrell , many personal andcorporate papers were seized from premises not petitioners' family residences; as in Birrell , the searches were"PRIMARILY DIRECTED SOLETY AND EXCLUSIVELY" against the petitioners. Still both types of documents weresuppressed in Birrell because of the illegal search. In the case at bar, the petitioners connection with the premises raidedis much closer than in Birrell .

Thus, the petitioners have full standing to move for the quashing of all the warrants regardless whether these weredirected against residences in the narrow sense of the word, as long as the documents were personal papers of the

petitioners or (to the extent that they were corporate papers) were held by them in a personal capacity or under theirpersonal control.

Prescinding a from the foregoing, this Court, at all events, should order the return to the petitionersall personal and private papers and effects seized, no matter where these were seized, whether from their residences orcorporate offices or any other place or places. The uncontradicted sworn statements of the petitioners in their, variouspleadings submitted to this Court indisputably show that amongst the things seized from the corporate offices and otherplaces were personal and private papers and effects belonging to the petitioners.

If there should be any categorization of the documents, papers and things which where the objects of the unlawfusearches and seizures, I submit that the grouping should be: (a) personal or private papers of the petitioners were theywere unlawfully seized, be it their family residences offices, warehouses and/or premises owned and/or possessed(actually or constructively) by them as shown in all the search and in the sworn applications filed in securing the voidsearch warrants and (b) purely corporate papers belonging to corporations. Under such categorization or grouping, thedetermination of which unlawfully seized papers, documents and things are personal/private of the petitioners or purelycorporate papers will have to be left to the lower courts which issued the void search warrants in ultimately effecting thesuppression and/or return of the said documents.

And as unequivocally indicated by the authorities above cited, the petitioners likewise have clear legal standing to movefor the suppression of purely corporate papers as "President and/or General Manager" of the corporations involved asspecifically mentioned in the void search warrants.

Finally, I must articulate my persuasion that although the cases cited in my disquisition were criminal prosecutions, thegreat clauses of the constitutional proscription on illegal searches and seizures do not withhold the mantle of theirprotection from cases not criminal in origin or nature.



10

G.R. No. 93516 August 12, 1992

THE PEOPLE OF THE PHILLIPPINES, plaintiff-appellee,vs.BASILIO DAMASO @ Bernardo/BERNIE MENDOZA @ KA DADO, accused-appellant.

The Solicitor General for plaintiff-appellee.

MEDIALDEA, J .:

The accused-appellant, Basilio Damaso, was originally charged in an information filed before the Regional Trial Court ofDagupan City with violation of Presidential Decree No. 1866 in furtherance of, or incident to, or in connection with thecrime of subversion, together with Luzviminda Morados y Galang @ Ka Mel, Teresita Calosa y Macabangon @ KaTessie, Ricardo Calosa y Perez @ Ka Ric, Marites Calosa y Evangelista @ Ka Tess, Eric Tanciangco y Capira @ Ka Ricand 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 an or about the 19th day of June, 1988, in the City of Dagupan, Philippines, and within the territoria jurisdiction of this Honorable Court, the above-named accused, Basilio DAMASO @ Bernardo/BernieMendoza @ KA DADO, did then and there, willfully, unlawfully and criminally, have in his possessioncustody and control one (1) M14 Rifle bearing Serial No. 1249935 with magazine and Fifty-Seven (57live ammunition, in furtherance of, or incident to, or in connection with the crime of subversion, filedagainst said accused in the above-entitled case for Violation of Republic Act 1700, as amended byExecutive 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 meritsensued. The prosecution rested its case and offered its exhibits for admission. The counsel for accused-appellaninterposed 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 presentingany evidence for the accused (TSN, December 28, 1989, p. 139). On January 17, 1990, the trial court rendered decision,the dispositive portion of which states:

WHEREFORE, the Court finds accused Basilio Damaso alias Bernardo/Bernie Mendoza alias Ka Dadoguilty beyond reasonable doubt of Violation of Presidential Decree Number 1866, and considering thathe Violation is in furtherance of, or incident to, or in connection with the crime of subversion, pursuant toSection 1, Paragraph 3 of Presidential Decree Number 1866 hereby sentences the accused to suffer thepenalty 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 itemsseized on June 19, 1988 in connection with this case and marked and submitted in court as evidence areordered 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 REASONABLEDOUBT OF THE CRIME OF ILLEGAL POSSESSION OF FIREARMS AND AMMUNITIONS INFURTHERANCE OF, OR INCIDENT TO, OR IN CONNECTION WITH THE CRIME OF SUBVERSIONDESPITE THE WOEFULLY INADEQUATE EVIDENCE PRESENTED BY THE PROSECUTION.



11

B. THE COURT ERRED IN CONVICTING THE ACCUSED WHEN THE QUALIFYINGCIRCUMSTANCES 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 FINALITYBY ANOTHER BRANCH OF THE SAME COURT AND THE SAID EVIDENCE ARE THE FRUITS OF ANILLEGAL SEARCH.

D. THE TRIAL COURT ERRED IN DENYING THE MOTIONS TO QUASH FILED BY ACCUSED- APPELLANT BECAUSE THE SEPARATE CHARGE FOR SUBVERSION AGAINST HIM ABSORBEDTHE CHARGE FOR ILLEGAL POSSESSION OF FIREARMS IN FURTHERANCE OF OR 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 PCCompany at Lingayen, Pangasinan, and some companions were sent to verify the presence of CPP/NPAmembers in Barangay Catacdang, Arellano-Bani, Dagupan City. In said place, the group apprehendedGregorio 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 proceededto the house in Gracia Village. They found subversive documents, a radio, a 1 x 7 caliber .45 firearm andother items (pp. 4, 6-7, tsn, October 23, 1989).

After the raid, the group proceeded to Bonuan, Dagupan City, and put under surveillance the rentedapartment of Rosemarie Aritumba, sister of Berlina Aritumba whom they earlier arrested. Theyinterviewed Luzviminda Morados, a visitor of Rosemarie Aritumba. She stated that she worked withBernie Mendoza, herein appellant. She guided the group to the house rented by appellant. When theyreached the house, the group found that it had already been vacated by the occupants. Since Moradoswas hesitant to give the new address of Bernie Mendoza, the group looked for the Barangay Captain othe place and requested him to point out the new house rented by appellant. The group again requiredMorados to go with them. When they reached the house, the group saw Luz Tanciangco outside. Theytold 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, thegroup, as well as the Barangay Captain, saw radio sets, pamphlets entitled "Ang Bayan," xerox copiersand a computer machine. They also found persons who were companions of Luz Tanciangco (namelyTeresita Calosa, Ricardo Calosa, Maries Calosa, Eric Tanciangco and Luzviminda Morados). The grouprequested the persons in the house to allow them to look around. When Luz Tanciangco opened one ofthe rooms, they saw books used for subversive orientation, one M-14 rifle, bullets and ammunitionsKenwood radio, artificial beard, maps of the Philippines, Zambales, Mindoro an(d) Laguna and otheritems. They confiscated the articles and brought them to their headquarters for final inventory. Theylikewise brought the persons found in the house to the headquarters for investigation. Said personsrevealed that appellant was the lessee of the house and owned the items confiscated therefrom (pp. 8-12tsn, 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 theaccused-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, infurtherance of, or incident to, or in connection with the crime of subversion. Yet, there is no substantial and credibleevidence to establish the fact that the appellant is allegedly the same person as the lessee of the house where the M-14rifle and other subversive items were found or the owner of the said items. The prosecution presented two witnesses whoattested to this fact, thus:



12

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 thename Bernie Mendoza (as) the one who was renting the house and at the same timeclaiming that it was Bernie Mendoza who owns the said items. (TSN of October 31, 1989p. 40)

xxx xxx xxx

Q I am showing you another picture which we request to be marked as Exhibit "K-2," telus 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 youfind 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 ofBernie 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/Sqt. Artemio Gomez

Q That underground house, do you know who was the principal occupant of that house?

xxx xxx xxx

A During our conversation with the occupants, they revealed that a certain Ka Bernie isthe one occupying the house, Bernie Mendoza alias Basilio Damaso.

. . . (TSN, December 27, 1989, pp. 126-128)

Clearly, the aforequoted testimonies are hearsay because the witnesses testified on matters not on their own personaknowledge. The Solicitor General, however, argues that while the testimonies may be hearsay, the same are admissiblebecause 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 bemisled into thinking that since these testimonies are admitted as evidence, they now have probative value. Hearsayevidence, whether objected to or not, cannot be given credence. In People vs. Valero, We emphatically declared that:

The failure of the defense counsel to object to the presentation of incompetent evidence, like hearsayevidence or evidence that violates the rule of res inter alios acta, or his failure to ask for the striking out ofthe same does not give such evidence any probative value. The lack of objection may make any



13

incompetent evidence admissible. But admissibility of evidence should not be equated with weight oevidence. Hearsay evidence whether objected to or not has no probative value.(L-45283-84, March 19, 1982, 112 SCRA 675, emphasis supplied)

It is unfortunate that the prosecution failed to present as witnesses the persons who knew the appellant as thelessee and owner of the M-14 rifle. In this way, the appellant could have exercised his constitutional right toconfront 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 thesubversive items. To give probative value to these hearsay statements and convict the appellant on this basisalone 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 notprosper, the reason being that the law enforcers failed to comply with the requirements of a valid search and seizureproceedings.

The right against unreasonable searches and seizures is enshrined in the Constitution (Article III, Section 2). The purposeof the law is to prevent violations of private security in person and property, and unlawful invasions of the sanctity of thehome by officers of the law acting under legislative or judicial sanction and to give remedy against such usurpations whenattempted (see Alvero v. Dizon, 76 Phil. 637, 646). However, such right is not absolute. There are instances when awarrantless 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 uponinvitation of Luz Tanciangco and Luzviminda Morados, helper of the appellant; that when Luz Tanciangco opened one ofthe rooms, they saw a copier machine, computer, M-14 rifle, bullets and ammunitions, radio set and more subversiveitems; 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 search warrant with the consent of the person searched in thiscase, appellant's helper and Luz Tanciangco allowed them to enter and to look around the appellant's house; and thatsince 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 personal onecannot 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 hishouse at that time Luz Tanciangco and Luz Morados, his alleged helper, allowed the authorities to enter it (TSN, October31, 1989, p. 10). We Find no evidence that would establish the fact that Luz Morados was indeed the appellant's helper orif it was true that she was his helper, that the appellant had given her authority to open his house in his absence. Theprosecution 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 isnecessary to the public welfare, still it must be exercised and the law enforced without transgressing the constitutionalrights of the citizens, for the enforcement of no statute is of sufficient importance to justify indifference to the basicprinciples of government (Rodriguez v. Evangelista, 65 Phil. 230, 235). As a consequence, the search conducted by theauthorities was illegal. It would have been different if the situation here demanded urgency which could have promptedthe authorities to dispense with a search warrant. But the record is silent on this point. The fact that they came to thehouse of the appellant at nighttime (Exh. J, p. 7, Records), does not grant them the license to go inside his house. In Alihv. Castro, We ruled that:

The respondents cannot even plead the urgency of the raid because it was in fact not urgent. They knewwhere the petitioners were. They had every opportunity to get a search warrant before making the raid. Ifthey were worried that the weapons inside the compound would be spirited away, they could havesurrounded the premises in the meantime, as a preventive measure. There was absolutely no reason atall why they should disregard the orderly processes required by the Constitution and instead insist onarbitrarily 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 gunwhich he was charged to have illegally possessed. In the amended information (supra, pp. 1-2), the gun was described asan M-14 rifle with serial no. 1249935 . Yet, the gun presented at the trial bore a different serial number thus:



14

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 sawdifferent kinds of books of which we believed to be used for subversive orientation andthe 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 o

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 firearmto the firearm which according to you you found inside the room allegedly occupied byone Bernie Mendoza?

A This is the same rifle which was discovered during our raid in the same house. (TSNOctober 31, 1989, pp. 36-38, emphasis 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 thedifference 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 thefirearm and that the accused who possessed or owned the firearm does not have the corresponding license for it. Sincethe gun as identified at the trial differs from the gun described in the amended information, the corpus delicti (thesubstance of the crime, the fact that a crime has actually been committed) has not been fully established. Thiscircumstance coupled with dubious claims of appellant's connection to the house (where the gun was found) have totallyemasculated 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 crimeof subversion absorbs the crime of illegal possession of firearm in furtherance of or incident to or in connection with thecrime of subversion. It appears that the accused-appellant is facing a separate charge of subversion. The defensesubmits that the trial court should have peremptorily dismissed this case in view of the subversion charge. In People of thePhilippines 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 ofsubversion, then it loses its distinction from rebellion. In People v. Liwanag (G.R. No. 27683, 1976, 73SCRA 473, 480 [1976]), the Court categorically distinguished subversion from rebellion, and held:



15

Violation of Republic Act No. 1700, or subversion, as it is more commonly called, is acrime 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 No1700) punishes affiliation or membership in a subversive organization as defined thereinIn rebellion, there must be a public uprising and taking of arms against the Governmentwhereas, 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 Governmentis but a circumstance which raises the penalty to be imposed upon the offender(Emphasis supplied)

Furthermore, in the case of Buscayno v. Military Commission (G.R. 58284, 109 289 (1981]), this Courtsaid that subversion, like treason, is a crime against national security, while rebellion is a crime againstpublic order. Rising publicly and taking arms against the Government is the very element of the crime onrebellion. 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 aclear, 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 theGovernment, 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 argumentsof private respondents), but may partake of other forms as well. One may in fact be guilty of subversionby 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 issimultaneously charged with violation of P.D. 1866 and subversion, the doctrine of absorption of commoncrimes as applied in rebellion would have found application therein. The respondents relied on the opinionof this Court when it said:

. . . in the present case, petitioner is being charged specifically for the qualified offense ofillegal possession of firearms and ammunition under PD 1866. HE IS NOT BEINGCHARGED WITH THE COMPLEX CRIME OF SUBVERSION WITH ILLEGALPOSSESSION OF FIREARMS. NEITHER IS HE BEING SEPARATELY CHARGED FOR

SUBVERSION AND FOR ILLEGAL POSSESSION OF FIREARMS. Thus, the rulings othe Court in Hernandez, Geronimo and Rodriguez 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 thethird paragraph of Section 1 of P.D. 1866. The Court opined that the dictum in the Hernandez case is notapplicable 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 thetaking up of arms against the Government (R.A. 1700). The practical result of this may be harsh or it maypose grave difficulty on an accused in instances similar to those that obtain in the present case, but thewisdom of the legislature in the lawful exercise of its power to enact laws is something that the Courcannot 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 optionbut to acquit the accused on reasonable doubt.

ACCORDINGLY, the decision appealed from is hereby REVERSED and the appellant is ACQUITTED with costsde oficio.

SO ORDERED.



16

G.R. No. 113271 October 16, 1997

WATEROUS DRUG CORPORATION and MS. EMMA CO, petitioners,vs.NATIONAL LABOR RELATIONS COMMISSION and ANTONIA MELODIA CATOLICO, respondents.

DAVIDE, JR., J.:

Nor is he a true Servant [who] buys dear to share in the Profit with the Seller. 1

This petition for certiorari under Rule 65 of the Rules of Court seeks to declare private respondent Antonia MelodiaCatolico (hereafter Catolico) not a "true Servant," thereby assailing the 30 September 1993 decision 2 and Decembe1993 Resolution 3 of the National Labor Relations Commission (NLRC) in NLRC-NCR CA No. 005160-93, whichsustained the reinstatement and monetary awards in favor of private respondent 4 and denied the petitioners' motion foreconsideration. 5

The facts are as follows:

Catolico was hired as a pharmacist by petitioner Waterous Drug Corporation (hereafter WATEROUS) on 15 August 1988.

On 31 July 1989, Catolico received a memorandum 6 from WATEROUS Vice President-General Manager Emma R. Cowarning her not to dispense medicine to employees chargeable to the latter's accounts because the same was aprohibited practice. On the same date, Co issued another memorandum 7 to Catolico warning her not to negotiate withsuppliers of medicine without consulting the Purchasing Department, as this would impair the company's control opurchases and, besides she was not authorized to deal directly with the suppliers.

As regards the first memorandum, Catolico did not deny her responsibility but explained that her act was "due tonegligence," since fellow employee Irene Soliven "obtained the medicines in bad faith and through misrepresentationwhen she claimed that she was given a charge slip by the Admitting Dept." Catolico then asked the company to look intothe fraudulent activities of Soliven. 8

In a memorandum 9 dated 21 November 1989, WATEROUS Supervisor Luzviminda E. Bautro warned Catolico againsthe "rush delivery of medicines without the proper documents."

On 29 January 1990, WATEROUS Control Clerk Eugenio Valdez informed Co that he noticed an irregularity involvingCatolico and Yung Shin Pharmaceuticals, Inc. (hereafter YSP), which he described as follows:

. . . A case in point is medicine purchased under our Purchase Order (P.O.) No. 19045 with YSP Sales InvoiceNo. 266 representing purchase of ten (10) bottles of Voren tablets at P384.00 per unit. Previews P.O.s issued toYSP, Inc. showed that the price per bottle is P320.00 while P.O. No. 19045 is priced at P384.00 or an over priceof P64.00 per bottle (or total of P640.00). WDRC paid the amount of P3,840.00 thru MBTC Check No. 222832dated December 15, 1988. Verification was made to YSP, Inc. to determine the discrepancy and it was found thathe cost per bottle was indeed overpriced. YSP, Inc. Accounting Department (Ms. Estelita Reyes) confirmed thathe difference represents refund of jack-up price of ten bottles of Voren tablets per sales invoice no. 266 as pertheir check voucher no. 629552 (shown to the undersigned), which was paid to Ms. Catolico through China Bankcheck no. 892068 dated November 9, 1989 . . . .

The undersigned talked to Ms. Catolico regarding the check but she denied having received it and that she isunaware of the overprice. However, upon conversation with Ms. Saldana, EDRC Espana Pharmacy Clerk, sheconfirmed that the check amounting to P640.00 was actually received by Ms. Catolico. As a matter of fact, Ms.Catolico even asked Ms. Saldana if she opened the envelope containing the check but Ms. Saldana answered her"talagang ganyan, bukas." It appears that the amount in question (P640.00) had been pocketed by MsCatolico. 10



17

Forthwith, in her memorandum 11 dated 37 January 1990, Co asked Catolico to explain, within twenty-four hours, her sideof the reported irregularity. Catolico asked for additional time to give her explanation, 12 and she was granted a 48-houextension from 1 to 3 February 1990. However, on 2 February 1990, she was informed that effective 6 February 1990 to 7March 1990, she would be placed on preventive suspension to protect the interests of the company. 13

In a letter dated 2 February 1990, Catolico requested access to the file containing Sales Invoice No. 266 for her to be ableto make a satisfactory explanation. In said letter she protested Saldaña's invasion of her privacy when Saldaña opened an

envelope addressed to Catolico. 14

In a letter 15 to Co dated 10 February 1990, Catolico, through her counsel, explained that the check she received fromYSP was a Christmas gift and not a "refund of overprice." She also averred that the preventive suspension was ill-motivated, as it sprang from an earlier incident between her and Co's secretary, Irene Soliven.

On 5 March 1990, WATEROUS Supervisor Luzviminda Bautro, issued a memorandum 16 notifying Catolico of hetermination; thus:

We received your letter of explanation and your lawyer's letter dated Feb. 2, 1990 and Feb. 10, 1990 respectivelyregarding our imposition of preventive suspension on you for acts of dishonesty. However, said letters failed torebut the evidences [sic ] in our possession which clearly shows that as a Pharmacist stationed at Espana Branchyou actually made Purchase Orders at YSP Phils., Inc. for 10 bottles of Voren tablets at P384.00/bottle with

previous price of P320.00/bottle only. A check which you received in the amount of P640.00 actually representsthe refund of over price of said medicines and this was confirmed by Ms. Estelita Reyes, YSP Phils., Inc Accounting Department.

Your actuation constitutes an act of dishonesty detrimental to the interest of the company. Accordingly, you arehereby terminated effective March 8, 1990.

On 5 May 1990, Catolico filed before the Office of the Labor Arbiter a complaint for unfair labor practice, illegal dismissal,and illegal suspension. 17

In his decision 18 of 10 May 1993, Labor Arbiter Alex Arcadio Lopez found no proof of unfair labor practice againstpetitioners. Nevertheless, he decided in favor of Catolico because petitioners failed to "prove what [they] alleged as

complainant's dishonesty," and to show that any investigation was conducted. Hence, the dismissal was without justcause and due process. He thus declared the dismissal and suspension illegal but disallowed reinstatement, as it wouldnot be to the best interest of the parties. Accordingly, he awarded separation pay to Catolico computed at one-halfmonth's pay for every year of service; back wages for one year; and the additional sum of P2,000.00 for illegal suspension"representing 30 days work." Arbiter Lopez computed the award in favor of Catolico as follows:

30 days Preventive Suspension P2,000.00Backwages 26,858.501/12 of P26,858.50 2,238.21Separation pay (3 years) 4,305.15————— TOTAL AWARD P35,401.86—————

Petitioners seasonably appealed from the decision and urged the NLRC to set it aside because the Labor Arbiter erred infinding that Catolico was denied due process and that there was no just cause to terminate her services.

In its decision 19 of 30 September 1993, the NLRC affirmed the findings of the Labor Arbiter on the ground that petitionerswere not able to prove a just cause for Catolico's dismissal from her employment. It found that petitioner's evidenceconsisted only of the check of P640.00 drawn by YSP in favor of complainant, which her co-employee saw when the latteropened the envelope. But, it declared that the check was inadmissible in evidence pursuant to Sections 2 and 3(1 and 2)of Article III of the Constitution. 20 It concluded:



18

With the smoking gun evidence of respondents being rendered inadmissible, by virtue of the constitutional rightinvoked by complainants, respondents' case falls apart as it is bereft of evidence which cannot be used as a legalbasis for complainant's dismissal.

The NLRC then dismissed the appeal for lack of merit, but modified the dispositive portion of the appealed decision bydeleting the award for illegal suspension as the same was already included in the computation of the aggregate of theawards in the amount of P35,401.86.

Their motion for reconsideration having been denied, petitioners filed this special civil action for certiorari , which isanchored on the following grounds:

I. Public respondent committed grave abuse of discretion in its findings of facts.

II. Due process was duly accorded to private respondent.

III. Public respondent gravely erred in applying Section 3, Article III of the 1987 Constitution.

As to the first and second grounds, petitioners insist that Catolico had been receiving "commissions" from YSP, orprobably from other suppliers, and that the check issued to her on 9 November 1989 was not the first or the last. They

also maintained that Catolico occupied a confidential position and that Catolico's receipt of YSP's check, aggravated byher "propensity to violate company rules," constituted breach of confidence. And contrary to the findings of NLRCCatolico was given ample opportunity to explain her side of the controversy.

Anent the third ground, petitioners submit that, in light of the decision in the People v . Marti , 21 the constitutional protectionagainst unreasonable searches and seizures refers to the immunity of one's person from interference by government andcannot be extended to acts committed by private individuals so as to bring it within the ambit of alleged unlawful intrusionby the government.

In its Manifestation in Lieu of Comment, the Office of the Solicitor General (OSG) disagreed with the NLRC's decision, asit was of the persuasion that (a) the conclusions reached by public respondent are inconsistent with its findings of fact;and (b) the incident involving the opening of envelope addressed to private respondent does not warrant the application ofthe constitutional provisions. It observed that Catolico was given "several opportunities" to explain her side of the check

controversy, and concluded that the opportunities granted her and her subsequent explanation "satisfy the requirementsof just cause and due process." The OSG was also convinced that Catolico's dismissal was based on just cause and thatCatolico's admission of the existence of the check, as well as her "lame excuse" that it was a Christmas gift from YSPconstituted substantial evidence of dishonesty. Finally, the OSG echoed petitioners' argument that there was no violationof the right of privacy of communication in this case, 22 adding that petitioner WATEROUS was justified in opening anenvelope from one of its regular suppliers as it could assume that the letter was a business communication in which it hadan interest.

In its Comment which we required to be filed in view of the adverse stand of the OSG, the NLRC contends that petitionersmiserably failed to prove their claim that it committed grave abuse of discretion in its findings of fact. It then prays that wedismiss this petition.

In her Comment, Catolico asserts that petitioners' evidence is too "flimsy" to justify her dismissal. The check in issue was

given to her, and she had no duty to turn it over to her employer. Company rules do not prohibit an employee fromaccepting gifts from clients, and there is no indication in the contentious check that it was meant as a refund for overpricedmedicines. Besides, the check was discovered in violation of the constitutional provision on the right to privacy andcommunication; hence, as correctly held by the NLRC, it was inadmissible in evidence.

Catolico likewise disputes petitioners' claim that the audit report and her initial response that she never received a checkwere sufficient to justify her dismissal. When she denied having received a check from YSP, she meant that she did notreceive any refund of overprice, consistent with her position that what she received was a token gift. All that can begathered from the audit report is that there was apparently an overcharge, with no basis to conclude that Catolicopocketed the amount in collusion with YSP. She thus concluded that her dismissal was based on a mere suspicion.



19

Finally, Catolico insists that she could not have breached the trust and confidence of WATEROUS because, being merelya pharmacist, she did not handle "confidential information or sensitive properties." She was doing the task of a saleslady:selling drugs and making requisitions when supplies were low.

A thorough review of the record leads us to no other conclusion than that, except as to the third ground, the instanpetition must fail.

Concededly, Catolico was denied due process. Procedural due process requires that an employee be apprised of thecharge against him, given reasonable time to answer the charge, allowed ample opportunity to be heard and defendhimself, and assisted by a representative if the employee sodesires. 23 Ample opportunity connotes every kind of assistance that management must accord the employee to enablehim to prepare adequately for his defense, including legal representation. 24

In the case at bar, although Catolico was given an opportunity to explain her side, she was dismissed from the service inthe memorandum of 5 March 1990 issued by her Supervisor after receipt of her letter and that of her counsel. No hearingwas ever conducted after the issues were joined through said letters. The Supervisor's memorandum spoke of "evidences[sic ] in [WATEROUS] possession," which were not, however, submitted. What the "evidences" [ sic ] other than the salesinvoice and the check were, only the Supervisor knew.

Catolico was also unjustly dismissed. It is settled that the burden is on the employer to prove just and valid cause for

dismissing an employee, and its failure to discharge that burden would result in a finding that the dismissal isunjustified. 25 Here, WATEROUS proved unequal to the task.

It is evident from the Supervisor's memorandum that Catolico was dismissed because of an alleged anomaloustransaction with YSP. Unfortunately for petitioners, their evidence does not establish that there was an overchargeControl Clerk Eugenio C. Valdez, who claims to have discovered Catolico's inappropriate transaction, stated in hisaffidavit: 26

4. My findings revealed that on or before the month of July 31, 1989, Ms. Catolico in violation of the [company]procedure, made an under the table deal with YSP Phils. to supply WDRC needed medicines like Voren tablets ata jack-up price of P384.00 per bottle of 50 mg. which has a previous price of only P320.00;

5. I verified the matter to YSP Phils. to determine the discrepancy and I found out that the cost per bottle wasindeed overpriced. The Accounting Department of YSP Phils. through Ms. Estelita Reyes confirmed that therewas really an overprice and she said that the difference was refunded through their check voucher no. 629552which was shown to me and the payee is Melodia Catolico, through a China Bank Check No. 892068 datedNovember 9, 1989.

It clearly appears then that Catolico's dismissal was based on hearsay information. Estelita Reyes never testified norexecuted an affidavit relative to this case; thus, we have to reject the statements attributed to her by Valdez. Hearsayevidence carries no probative value. 27

Besides, it was never shown that petitioners paid for the Voren tablets. While Valdez informed Co, through the former'smemorandum 28 of 29 January 1990, that WATEROUS paid YSP P3,840.00 "thru MBTC Check No. 222832," the saidcheck was never presented in evidence, nor was any receipt from YSP offered by petitioners.

Moreover, the two purchase orders for Voren tablets presented by petitioners do not indicate an overcharge. Thepurchase order dated 16 August 1989 29 stated that the Voren tablets cost P320.00 per box , while the purchase orderdated 5 October 1989 30 priced the Voren tablets at P384.00 per bottle. The difference in price may then be attributed tothe different packaging used in each purchase order.

Assuming that there was an overcharge, the two purchase orders for the Voren tablets were recommended by DirectorMMG Mario R. Panuncio, verified by AVP-MNG Noli M. Lopez and approved by Vice President-General Manager EmmaR. Co. The purchase orders were silent as to Catolico's participation in the purchase. If the price increase wasobjectionable to petitioners, they or their officers should have disapproved the transaction. Consequently, petitioners hadno one to blame for their predicament but themselves. This set of facts emphasizes the exceedingly incredible situationproposed by petitioners. Despite the memorandum warning Catolico not to negotiate with suppliers of medicine, there was



20

no proof that she ever transacted, or that she had the opportunity to transact, with the said suppliers. Again, as thepurchase orders indicate, Catolico was not at all involved in the sale of the Voren tablets. There was no occasion forCatolico to initiate, much less benefit from, what Valdez called an "under the table deal" with YSP.

Catolico's dismissal then was obviously grounded on mere suspicion, which in no case can justify an employee'sdismissal. Suspicion is not among the valid causes provided by the Labor Code for the termination ofemployment; 31 and even the dismissal of an employee for loss of trust and confidence must rest on substantial grounds

and not on the employer's arbitrariness, whims, caprices, or suspicion. 32 Besides, Catolico was not shown to be amanagerial employee, to which class of employees the term "trust and confidence" is restricted. 33

As regards the constitutional violation upon which the NLRC anchored its decision, we find no reason to revise thedoctrine laid down in People vs. Marti 34 that the Bill of Rights does not protect citizens from unreasonable searches andseizures perpetrated by private individuals. It is not true, as counsel for Catolico claims, that the citizens have no recourseagainst such assaults. On the contrary, and as said counsel admits, such an invasion gives rise to both criminal and civilliabilities.

Finally, since it has been determined by the Labor Arbiter that Catolico's reinstatement would not be to the best interest ofthe parties, he correctly awarded separation pay to Catolico. Separation pay in lieu of reinstatement is computed at onemonth's salary for every year of service. 35 In this case, however, Labor Arbiter Lopez computed the separation pay aone-half month's salary for every year of service. Catolico did not oppose or raise an objection. As such, we will uphold

the award of separation pay as fixed by the Labor Arbiter.

WHEREFORE, the instant petition is hereby DISMISSED and the challenged decision and resolution of the NationaLabor Relations Commission dated 30 September 1993 and 2 December 1993, respectively, in NLRC-NCR CA No.005160-93 are AFFIRMED, except as to its reason for upholding the Labor Arbiter's decision, viz ., that the evidenceagainst private respondent was inadmissible for having been obtained in violation of her constitutional rights of privacy ofcommunication and against unreasonable searches and seizures which is hereby set aside.

Costs against petitioners.

SO ORDERED.



21

G.R. No. 143944 July 11, 2002

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,vs.BASHER BONGCARAWAN y MACARAMBON, accused-appellant.

PUNO, J .:

This is an appeal from the Decision1 dated December 27, 1999 of the Regional Trial Court of Iligan City, Branch 06, inCriminal Case No. 06-7542, finding accused Basher Bongcarawan y Macarambon guilty beyond reasonable doubt ofviolation of Section 16, Article III of Republic Act No. 64252 as amended, and sentencing him to suffer the penaltyof reclusion perpetua, and to pay a fine of Five Hundred Thousand Pesos (P500,000.00) without subsidiary imprisonmentin case of insolvency.1âwphi1.nêt

Accused Basher Bongcarawan y Macarambon was charged in an Information which reads, thus:

"That on or about March 13, 1999, in the City of Iligan, Philippines, and within the jurisdiction of this HonorableCourt, the said accused, without authority of law, did then and there wilfully, unlawfully and feloniously have in hispossession, custody and control eight (8) packs of Methamphetamine Hydrochloride, a regulated drug commonlyknown as Shabu, weighing approximately 400 grams, without the corresponding license or prescription.

Contrary to and in violation of Section 16, Article III of RA 6425, otherwise known as the Dangerous Drugs Act of1972, as amended by RA 7659."3

During the arraignment, the accused pleaded not guilty. Trial ensued.

Evidence for the prosecution shows that on March 11, 1999, an interisland passenger ship, M/V Super Ferry 5, sailedfrom Manila to Iligan City. At about 3:00 a.m. on March 13, 1999, the vessel was about to dock at the port of Iligan Citywhen its security officer, Mark Diesmo, received a complaint from passenger Lorena Canoy about her missing jewelryCanoy suspected one of her co-passengers at cabin no. 106 as the culprit. Diesmo and four (4) other members of thevessel security force accompanied Canoy to search for the suspect whom they later found at the economy section.4 Thesuspect was identified as the accused, Basher Bongcarawan. The accused was informed of the complaint and was invited

to go back to cabin no. 106. With his consent, he was bodily searched, but no jewelry was found. He was then escortedby two (2) security agents back to the economy section to get his baggage. The accused took a Samsonite suitcase andbrought this back to the cabin. When requested by the security, the accused opened the suitcase, revealing a brown bagand small plastic packs containing white crystalline substance. Suspecting the substance to be "shabu," the securitypersonnel immediately reported the matter to the ship captain and took pictures of the accused beside the suitcase and itscontents. They also called the Philippine Coast Guard for assistance.5 At about 6:00 a.m., Lt. Robert Patrimonio, YN Aurelio Estoque, CD2 Phoudinie Lantao and RM3 Merchardo De Guzman of the Philippine Coast Guard arrived and tookcustody of the accused and the seized items--the Samsonite suitcase, a brown bag 6 and eight (8) small plastic packs owhite crystalline substance.7 When asked about the contraband articles, the accused explained that he was justrequested by a certain Alican "Alex" Macapudi to bring the suitcase to the latter's brother in Iligan City.8 The accused andthe seized items were later turned over by the coast guard to the Presidential Anti-Organized Crime Task Force(PAOCTF). Chief Inspector Graciano Mijares and his men brought the accused to the PAOCTF Headquarters, 9 while thepacks of white crystalline substance were sent to the NBI Regional Office in Cagayan de Oro City for laboratory

examination. NBI Forensic Chemist Nicanor Cruz later confirmed the substance to be methamphetamine hydrochloride,commonly known as "shabu," weighing 399.3266 grams.10

The accused testified and proffered his own version. On March 11, 1999, at about 10:00 p.m., he was in Quiapo, Manilawhere he met Alican "Alex" Macapudi, a neighbor who has a store in Marawi City. He was requested by Macapudi to bringa Samsonite suitcase containing sunglasses and watches to Iligan City, and to give it to Macapudi's brother at the Iliganport. He boarded the M/V Super Ferry 5 on the same night, carrying a big luggage full of clothes, a small luggage or"maleta" containing the sunglasses and brushes he bought from Manila, and the Samsonite suitcase of Macapudi. 11 Hestayed at cabin no. 106. At about 4:00 a.m of March 13, 1999, as the vessel was about to dock at the Iligan port, he tookhis baggage and positioned himself at the economy section to be able to disembark ahead of the other passengers.There, he met a friend, Ansari Ambor. While they were conversing, five (5) members of the vessel security force and awoman whom he recognized as his co-passenger at cabin no. 106 came and told him that he was suspected of stealing jewelry. He voluntarily went with the group back to cabin no. 106 where he was frisked. Subsequently, he was asked to



22

get his baggage, so he went back to the economy section and took the big luggage and Macapudi's Samsonite suitcaseHe left the small "maleta" containing sunglasses and brushes for fear that they would be confiscated by the securitypersonnel. When requested, he voluntarily opened the big luggage, but refused to do the same to the Samsonite suitcasewhich he claimed was not his and had a secret combination lock. The security personnel forcibly opened the suitcase andfound packs of white crystalline substance inside which they suspected to be "shabu." They took pictures of him with themerchandise, and asked him to sign a turn over receipt which was later given to the Philippine Coast Guard, then to thePAOCTF.12

On December 27, 1999, the trial court rendered judgment, the dispositive portion of which reads:

"WHEREFORE, the court finds the accused Basher Bongcarawan y Macarambon GUILTY beyond reasonabledoubt as principal of the offense of violation of Section 16, Art. III, R.A. No. 6425 as amended by R.A. No. 7659and hereby imposes upon him the penalty of RECLUSION PERPETUA and a fine of FIVE HUNDREDTHOUSAND (P500,000.00) PESOS, without subsidiary imprisonment in case of insolvency.

Having been under preventive imprisonment since March 13, 1999 until the present, the period of such preventivedetention shall be credited in full in favor of the accused in the service of his sentence.

The 399.3266 grams of methamphetamine hydrochloride or shabu is hereby ordered delivered to the NationaBureau of Investigation for proper disposition.

SO ORDERED."13

Hence, this appeal where the accused raises the following assignment of errors:

"I.

THE COURT A QUO ERRED IN SO HOLDING THAT THE DRUG CONFISCATED IS ADMISSIBLE INEVIDENCE AGAINST THE ACCUSED/APPELLANT.

II.

THE COURT A QUO ERRED IN SO HOLDING THAT THE APPELLANT OWNED THE CONFISCATEDEVIDENCE AND THEREFORE ADMISSIBLE IN EVIDENCE AGAINST HIM."14

On the first assignment of error, the accused-appellant contends that the Samsonite suitcase containing themethamphetamine hydrochloride or "shabu" was forcibly opened and searched without his consent, and hence, inviolation of his constitutional right against unreasonable search and seizure. Any evidence acquired pursuant to suchunlawful search and seizure, he claims, is inadmissible in evidence against him. He also contends that People v. Marti15 isnot applicable in this case because a vessel security personnel is deemed to perform the duties of a policeman.

The contentions are devoid of merit.

The right against unreasonable search and seizure is a fundamental right protected by the Constitution.16Evidence

acquired in violation of this right shall be inadmissible for any purpose in any proceeding.17

Whenever this right ischallenged, an individual may choose between invoking the constitutional protection or waiving his right by giving consentto the search and seizure. It should be stressed, however, that protection is against transgression committed by thegovernment or its agent. As held by this Court in the case of People v. Marti,18 "[i]n the absence of governmentainterference, liberties guaranteed by the Constitution cannot be invoked against the State." 19 The constitutionaproscription against unlawful searches and seizures applies as a restraint directed only against the government and itsagencies tasked with the enforcement of the law. Thus, it could only be invoked against the State to whom the restraintagainst arbitrary and unreasonable exercise of power is imposed.20

In the case before us, the baggage of the accused-appellant was searched by the vessel security personnel. It was onlyafter they found "shabu" inside the suitcase that they called the Philippine Coast Guard for assistance. The search andseizure of the suitcase and the contraband items was therefore carried out without government intervention, and hencethe constitutional protection against unreasonable search and seizure does not apply.



23

There is no merit in the contention of the accused-appellant that the search and seizure performed by the vessel securitypersonnel should be considered as one conducted by the police authorities for like the latter, the former are armed andtasked to maintain peace and order. The vessel security officer in the case at bar is a private employee and does notdischarge any governmental function. In contrast, police officers are agents of the state tasked with the sovereign functionof enforcement of the law. Historically and until now, it is against them and other agents of the state that the protectionagainst unreasonable searches and seizures may be invoked.

On the second assignment of error, the accused-appellant contends that he is not the owner of the Samsonite suitcaseand he had no knowledge that the same contained "shabu." He submits that without knowledge or intent to possess thedangerous drug, he cannot be convicted of the crime charged.21

We are not persuaded.

In a prosecution for illegal possession of dangerous drugs, the following facts must be proven beyond reasonabledoubt, viz : (1) that the accused is in possession of the object identified as a prohibited or a regulated drug; (2) that suchpossession is not authorized by law; and (3) that the accused freely and consciously possessed the said drug. 22 The firstwo elements were sufficiently proven in this case, and were in fact undisputed. We are left with the third.

As early as 1910 in the case of United States v. Tan Misa,23 this Court has ruled that to warrant conviction, thepossession of dangerous drugs must be with knowledge of the accused, or that animus possidendi existed together with

the possession or control of such articles.24 It has been ruled, however, that possession of dangerous drugsconstitutes prima facie evidence of knowledge or animus possidendi sufficient to convict an accused in the absence of asatisfactory explanation of such possession.25 Hence, the burden of evidence is shifted to the accused to explain theabsence of knowledge or animus possidendi .26

In this respect, the accused-appellant has utterly failed. His testimony, uncorroborated, self-serving and incredulous, wasnot given credence by the trial court. We find no reason to disagree. Well-settled is the rule that in the absence ofpalpable error or grave abuse of discretion on the part of the trial judge, the trial court's evaluation of the credibility ofwitnesses will not be disturbed on appeal.27 Moreover, evidence must be credible in itself to deserve credence and weightin law. In this case, the accused-appellant admits that when he was asked to get his baggage, he knew it would beinspected.28 Why he got the Samsonite suitcase allegedly not owned by him and which had a combination lock knownonly to the owner remains unclear. He also claims that he did not present his small " maleta" for inspection for fear that itscontents consisting of expensive sunglasses and brushes would be confiscated,29 but he brought the Samsonite suitcase

which is not his and also contained expensive sunglasses, and even watches.30

The things in possession of a person are presumed by law to be owned by him. 31 To overcome this presumption, it isnecessary to present clear and convincing evidence to the contrary. In this case, the accused points to a certain Alican"Alex" Macapudi as the owner of the contraband, but presented no evidence to support his claim. As aptly observed bythe trial judge:

"First, who is Alex Macap[u]di aka Ali[c]an Macap[u]di? Does he really exist or simply a figment of theimagination? He says that Alex Macap[u]di is a friend and a fellow businessman who has a stall sellingsunglasses in Marawi City. But no witnesses were presented to prove that there is such a living, breathing, fleshand blood person named Alex Macap[u]di who entrusted the Samsonite to the accused. Surely, if he does existhe has friends, fellow businessmen and acquaintances who could testify and support the claim of the accused." 32

Mere denial of ownership will not suffice especially if, as in the case at bar, it is the keystone of the defense of theaccused-appellant. Stories can easily be fabricated. It will take more than bare-bone allegations to convince this Courtthat a courier of dangerous drugs is not its owner and has no knowledge or intent to possess the same. 1âwphi1.nêt

WHEREFORE, the decision of the Regional Trial Court of Iligan City, Branch 06, in Criminal Case No. 06-7542, convictingaccused-appellant Basher Bongcarawan of violation of Section 16, Article III of Republic Act No. 6425, as amended, andsentencing him to suffer the penalty of Reclusion Perpetua and to pay a fine of Five Hundred Thousand Pesos(P500,000.00) without subsidiary imprisonment in case of insolvency, is AFFIRMED.

Costs against the accused-appellant. SO ORDERED.



24

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, THECHIEF LEGAL OFFICER, PRESIDENTIAL SECURITY COMMAND, THE JUDGE ADVOCATE GENERAL, ETAL., respondents.

Lorenzo M. Tañada, Wigberto E. Tañada, Martiniano Vivo, Augusto Sanchez, Joker P. Arroyo, Jejomar Binay and ReneSaguisag for petitioners.

The Solicitor General for respondents.

ESCOLIN, J .:

Assailed in this petition for certiorari prohibition and mandamus with preliminary mandatory and prohibitory injunction isthe 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 saidnewspapers, as well as numerous papers, documents, books and other written literature alleged to be in the possessionand 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 seizedarticles, and that respondents, "particularly the Chief Legal Officer, Presidential Security Command, the Judge AdvocateGeneral, AFP, the City Fiscal of Quezon City, their representatives, assistants, subalterns, subordinates, substitute orsuccessors" be enjoined from using the articles thus seized as evidence against petitioner Jose Burgos, Jr. and the otheraccused in Criminal Case No. Q- 022782 of the Regional Trial Court of Quezon City, entitled People v. Jose BurgosJr . et al . 1

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

At the hearing on July 7, 1983, the Solicitor General, while opposing petitioners' prayer for a writ of preliminary mandatoryinjunction, manifested that respondents "will not use the aforementioned articles as evidence in the aforementioned caseuntil final resolution of the legality of the seizure of the aforementioned articles. ..." 2 With this manifestation, the prayer forpreliminary 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 withouthaving previously sought the quashal of the search warrants before respondent judge. Indeed, petitioners, beforeimpugning 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 andurgency 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 specialcircumstance 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 v. Raymundo, 4 "it is always in the power of the court [Supreme Court] tosuspend its rules or to except a particular case from its operation, whenever the purposes of justice require it...".

Respondents likewise urge dismissal of the petition on ground of laches. Considerable stress is laid on the fact that whilesaid search warrants were issued on December 7, 1982, the instant petition impugning the same was filed only on June16, 1983 or after the lapse of a period of more than six [6] months.



25

Laches is failure or negligence for an unreasonable and unexplained length of time to do that which, by exercising duediligence, 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 theircase to court, it was because they tried at first to exhaust other remedies. The events of the past elevenfill years had taught them that everything in this country, from release of public funds to release ofdetained 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 FiscaFlaminiano, sent a letter to President Marcos, through counsel Antonio Coronet asking the return at leastof the printing equipment and vehicles. And after such a letter had been sent, through Col. Balbino VDiego, Chief Intelligence and Legal Officer of the Presidential Security Command, they were furtherencouraged 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 orchastise them for an error in judgment. On the contrary, the extrajudicial efforts exerted by petitioners quite evidentlynegate the presumption that they had abandoned their right to the possession of the seized property, thereby refuting thecharge of laches against them.

Respondents also submit the theory that since petitioner Jose Burgos, Jr. had used and marked as evidence some of theseized documents in Criminal Case No. Q- 022872, he is now estopped from challenging the validity of the searchwarrants. We do not follow the logic of respondents. These documents lawfully belong to petitioner Jose Burgos, Jr. andhe can do whatever he pleases with them, within legal bounds. The fact that he has used them as evidence does not andcannot 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.

1. Petitioners fault respondent judge for his alleged failure to conduct an examination under oath or affirmation of theapplicant and his witnesses, as mandated by the above-quoted constitutional provision as wen as Sec. 4, Rule 126 of theRules of Court . 6 This objection, however, may properly be considered moot and academic, as petitioners themselvesconceded during the hearing on August 9, 1983, that an examination had indeed been conducted by respondent judge ofCol. Abadilla and his witnesses.

2. Search Warrants No. 20-82[a] and No. 20- 82[b] were used to search two distinct places: No. 19, Road 3, Project 6Quezon City and 784 Units C & D, RMS Building, Quezon Avenue, Quezon City, respectively. Objection is interposed tothe execution of Search Warrant No. 20-82[b] at the latter address on the ground that the two search warrants pinpointedonly 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 osubversion penalized under P.D. 885 as amended and he is keeping and concealing the same at 19Road 3, Project 6, Quezon City.

The defect pointed out is obviously a typographical error. Precisely, two search warrants were applied for and issuedbecause 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 tobe searched were specifically set forth in the application, and since it was Col. Abadilla himself who headed the teamwhich executed the search warrants, the ambiguity that might have arisen by reason of the typographical error is moreapparent than real. The fact is that the place for which Search Warrant No. 20- 82[b] was applied for was 728 Units C & D,



26

RMS Building, Quezon Avenue, Quezon City, which address appeared in the opening paragraph of the saidwarrant. 7 Obviously this is the same place that respondent judge had in mind when he issued Warrant No. 20-82 [b].

In the determination of whether a search warrant describes the premises to be searched with sufficient particularity, it hasbeen held "that the executing officer's prior knowledge as to the place intended in the warrant is relevant. This wouldseem to be especially true where the executing officer is the affiant on whose affidavit the warrant had issued, and whenhe 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 theplace to be searched." 8

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

Section 2, Rule 126 of the Rules of Court, enumerates the personal properties that may be seized under a searchwarrant, to wit:

Sec. 2. Personal Property to be seized. — A search warrant may be issued for the search and seizure ofthe following personal property:

[a] Property subject of the offense;

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

[c] 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 searchwarrant is directed. It may or may not be owned by him. In fact, under subsection [b] of the above-quoted Section 2, oneof the properties that may be seized is stolen property. Necessarily, stolen property must be owned by one other than theperson in whose possession it may be at the time of the search and seizure. Ownership, therefore, is of no consequenceand it is sufficient that the person against whom the warrant is directed has control or possession of the property sought tobe 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 under the disputed warrants. Under Article 415[5] of the Civil Code of the Philippines, "machinery, receptables, instruments or implements intended by theowner of the tenement for an industry or works which may be carried on in a building or on a piece of land and which tenddirectly to meet the needs of the said industry or works" are considered immovable property. In Davao Sawmill Co. vCastillo 9 where this legal provision was invoked, this Court ruled that machinery which is movable by nature becomesimmobilized 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 wereplaced. This being the case, the machineries in question, while in fact bolted to the ground remain movable propertysusceptible to seizure under a search warrant.

5. The questioned search warrants were issued by respondent judge upon application of Col. Rolando N. AbadillaIntelligence Officer of the P.C. Metrocom. 10 The application was accompanied by the Joint Affidavit of Alejandro MGutierrez and Pedro U. Tango, 11 members of the Metrocom Intelligence and Security Group under Col. Abadilla whichconducted a surveillance of the premises prior to the filing of the application for the search warrants on December 71982.

It is contended by petitioners, however, that the abovementioned documents could not have provided sufficient basis forthe finding of a probable cause upon which a warrant may validly issue in accordance with Section 3, Article IV of the1973 Constitution which provides:



27

SEC. 3. ... and no search warrant or warrant of arrest shall issue except upon probable cause to bedetermined by the judge, or such other responsible officer as may be authorized by law, after examinationunder oath or affirmation of the complainant and the witnesses he may produce, and particularlydescribing 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 circumstanceswhich 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 warrantapplied for is directed against a newspaper publisher or editor in connection with the publication of subversive materialsas in the case at bar, the application and/or its supporting affidavits must contain a specification, stating with particularitythe alleged subversive material he has published or is intending to publish. Mere generalization will not suffice. Thus, thebroad statement in Col. Abadilla's application that petitioner "is in possession or has in his control printing equipment andother paraphernalia, news publications and other documents which were used and are all continuously being used as ameans of committing the offense of subversion punishable under Presidential Decree 885, as amended ..." 12 is a mereconclusion of law and does not satisfy the requirements of probable cause. Bereft of such particulars as would justify afinding of the existence of probable cause, said allegation cannot serve as basis for the issuance of a search warrant andit 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 forsubversive activities in conspiracy with, and to promote the objective of, illegal organizations such as the Light-a-FireMovement, 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, ... after examinationunder oath or affirmation of the complainant and the witnesses he may produce; 14 the Constitution requires no less thanpersonal knowledge by the complainant or his witnesses of the facts upon which the issuance of a search warrant may be justified. In Alvarez v. Court of First Instance, 15 this Court ruled that "the oath required must refer to the truth of the factswithin the personal knowledge of the petitioner or his witnesses, because the purpose thereof is to convince thecommitting magistrate, not the individual making the affidavit and seeking the issuance of the warrant, of the existence ofprobable cause." As couched, the quoted averment in said joint affidavit filed before respondent judge hardly meets thetest 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 thenature 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 inthe printing of the "WE FORUM" newspaper and any and all documents communication, letters andfacsimile of prints related to the "WE FORUM" newspaper.

2] Subversive documents, pamphlets, leaflets, books, and other publication to promote the objectives andpiurposes of the subversive organization known as Movement for Free Philippines, Light-a-FireMovement and April 6 Movement; and,

3] Motor vehicles used in the distribution/circulation of the "WE FORUM" and other subversive materialsand 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 524;

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

5] TOYOTA Hi-Lux, pick-up truck with Plate No. NGV 427 with marking "Bagong Silang."



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In Stanford v. State of Texas 16 the search warrant which authorized the search for "books, records, pamphlets, cardsreceipts, lists, memoranda, pictures, recordings and other written instruments concerning 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 inconnectionwith the violation of SDC 13-3703 or otherwise" have been held too general, and that portion of a searchwarrant which authorized the seizure of any "paraphernalia which could be used to violate Sec. 54-197 of the ConnecticuGeneral Statutes [the statute dealing with the crime of conspiracy]" was held to be a general warrant, and thereforeinvalid. 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 Courts calls to mind a notable chapter in English history: the era of disaccordbetween the Tudor Government and the English Press, when "Officers of the Crown were given roving commissions tosearch where they pleased in order to suppress and destroy the literature of dissent both Catholic and Puritan Referenceherein to such historical episode would not be relevant for it is not the policy of our government to suppress anynewspaper or publication that speaks with "the voice of non-conformity" but poses no clear and imminent danger to statesecurity.

As heretofore stated, the premises searched were the business and printing offices of the "Metropolitan Mail" and the "WeForum newspapers. As a consequence of the search and seizure, these premises were padlocked and sealed, with thefurther 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 underthe fundamental law, 18 and constitutes a virtual denial of petitioners' freedom to express themselves in print. This state ofbeing is patently anathematic to a democratic framework where a free, alert and even militant press is essential for thepolitical enlightenment and growth of the citizenry.

Respondents would justify the continued sealing of the printing machines on the ground that they have been sequesteredunder Section 8 of Presidential Decree No. 885, as amended, which authorizes "the sequestration of the property of anyperson, natural or artificial, engaged in subversive activities against the government and its duly constituted authorities ...in accordance with implementing rules and regulations as may be issued by the Secretary of National Defense." It isdoubtful however, if sequestration could validly be effected in view of the absence of any implementing rules andregulations 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 himsel

denied the request of the military authorities to sequester the property seized from petitioners on December 7, 1982Thus:

The President denied a request flied by government prosecutors for sequestration of the WE FORUMnewspaper and its printing presses, according to Information Minister Gregorio S. Cendana.

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

Cendaña said that because of the denial the newspaper and its equipment remain at the disposal of theowners, 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 ForeignMinister Carlos P. Romulo to the letter dated February 10, 1983 of U.S. Congressman Tony P. Hall addressed toPresident Marcos, expressing alarm over the "WE FORUM " case. 20 In this reply dated February 11, 1983, MinisterRomulo stated:

2. Contrary to reports, President Marcos turned down the recommendation of our authorities to close thepaper's printing facilities and confiscate the equipment 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 December7, 1982 are hereby declared null and void and are accordingly set aside. The prayer for a writ of mandatory injunction forthe return of the seized articles is hereby granted and all articles seized thereunder are hereby ordered released topetitioners. No costs. SO ORDERED.



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G.R. No. 88919 July 25, 1990

PEOPLE OF THE PHILIPPINES, petitioner,vs.HONORABLE ENRIQUE B. INTING, PRESIDING JUDGE, REGIONAL TRIAL COURT, BRANCH 38, DUMAGUETECITY, AND OIC MAYOR DOMINADOR S. REGALADO, JR., respondents.

GUTIERREZ, JR., J.:

Does a preliminary investigation conducted by a Provincial Election Supervisor involving election offenses have to becoursed through the Provincial Fiscal now Provincial Prosecutor, before the Regional Trial Court may take cognizance ofthe investigation and determine whether or not probable cause exists?

On February 6, 1988, Mrs. Editha Barba filed a letter-complaint against OIC-Mayor Dominador Regalado of TanjayNegros Oriental with the Commission on Elections (COMELEC), for allegedly transferring her, a permanent Nursing Attendant, Grade I, in the office of the Municipal Mayor to a very remote barangay and without obtaining prior permissionor clearance from COMELEC as required by law.

Acting on the complaint, COMELEC directed Atty. Gerardo Lituanas, Provincial Election Supervisor of Dumaguete City(1) to conduct the preliminary investigation of the case; (2) to prepare and file the necessary information in court; (3) tohandle the prosecution if the evidence submitted shows a prima facie case and (3) to issue a resolution of prosecution odismissal as the case may be. The directive to conduct the preliminary investigation was pursuant to COMELECResolution No. 1752 dated January 14, 1986. The resolution, in turn, is based on the constitutional mandate that theCOMELEC is charged with the enforcement and administration of all laws relative to the conduct of elections for thepurpose of ensuring free, orderly and honest elections (sec. 2, Article XII-C of the 1973 Constitution) and on the OmnibusElection Code which implements the constitutional provision. The Resolution provides, among others:

xxx xxx xxx

Further, Regional Election Directors and Provincial Election Supervisors are hereby authorized to conduc

preliminary investigations of election offenses committed in their respective jurisdictions, file thecorresponding complaints and/or informations in court whenever warranted, and to prosecute the samepursuant to Section 265 of the Omnibus Election Code. (Rollo, p. 15)

After a preliminary investigation of Barba's complaint, Atty. Lituanas found a prima facie case. Hence, on September 261988, he filed with the respondent trial court a criminal case for violation of section 261, Par. (h), Omnibus Election Codeagainst the OIC-Mayor.

In an Order dated September 30, 1988, the respondent court issued a warrant of arrest against the accused OIC Mayor. Ialso fixed the bail at five thousand pesos (P5,000.00) as recommended by the Provincial Election Supervisor.

However, in an order dated October 3, 1988 and before the accused could be arrested, the trial court set aside itsSeptember 30, 1988 order on the ground that Atty. Lituanas is not authorized to determine probable cause pursuant to

Section 2, Article III of the 1987 Constitution. The court stated that it "will give due course to the information filed in thiscase if the same has the written approval of the Provincial Fiscal after which the prosecution of the case shall be undethe supervision and control of the latter." (at p. 23, Rollo, emphasis supplied)

In another order dated November 22, 1988, the court gave Atty. Lituanas fifteen (15) days from receipt to file anotherinformation charging the same offense with the written approval of the Provincial Fiscal.

Atty. Lituanas failed to comply with the order. Hence, in an order dated December 8, 1988, the trial court quashed theinformation. A motion for reconsideration was denied.

Hence, this petition.



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The respondent trial court justifies its stand on the ground that the COMELEC through its Provincial Election Supervisorlacks jurisdiction to determine the existence of probable cause in an election offense which it seeks to prosecute in courtbecause:

While under Section 265 of the Omnibus Election Code approved on December 3, 1985 duly authorizedlegal officers of the Commission on Elections have the exclusive power to conduct preliminaryinvestigation of all election offenses and to prosecute the same, it is doubtful whether said authority under

the auspices of the 1973 Constitution, still subsists under the 1987 Constitution which has deleted in itsSection 2, Article III, the phrase "and such other responsible officer as may be authorized by law" in theequivalent section and article of the 1973 Constitution. (Rollo, p. 24)

The petition is impressed with merit.

We emphasize important features of the constitutional mandate that " ... no search warrant or warrant of arrest shall issueexcept upon probable cause to be determined personally by the judge ... " (Article III, Section 2, Constitution)

First, the determination of probable cause is a function of the Judge. It is not for the Provincial Fiscal or Prosecutor nor forthe Election Supervisor to ascertain. Only the Judge and the Judge alone makes this determination.

Second, the preliminary inquiry made by a Prosecutor does not bind the Judge. It merely assists him to make thedetermination of probable cause. The Judge does not have to follow what the Prosecutor presents to him. By itself, theProsecutor's certification of probable cause is ineffectual. It is the report, the affidavits, the transcripts of stenographicnotes (if any), and all other supporting documents behind the Prosecutor's certification which are material in assisting theJudge to make his determination.

And third, Judges and Prosecutors alike should distinguish the preliminary inquiry which determines probable cause fothe issuance of a warrant of arrest from the preliminary investigation proper which ascertains whether the offender shouldbe held for trial or released. Even if the two inquiries are conducted in the course of one and the same proceeding, thereshould be no confusion about the objectives. The determination of probable cause for the warrant of arrest is made by theJudge. The preliminary investigation proper-whether or not there is reasonable ground to believe that the accused is guiltyof the offense charged and, therefore, whether or not he should be subjected to the expense, rigors and embarrassmentof trial is the function of the Prosecutor.

The Court made this clear in the case of Castillo v. Villaluz (171 SCRA 39 [1989]):

Judges of Regional Trial Courts (formerly Courts of First Instance) no longer have authority to conductpreliminary investigations. That authority, at one time reposed in them under Sections 13, 14 and 16 Rule112 of the Rules of Court of 1964, (See Sec. 4, Rule 108, Rules of Court of 1940; People v. Solon, 47Phil. 443, cited in Moran, Comments on the Rules, 1980 ed., Vol. 4, pp. 115-116) was removed fromthem by the 1985 Rules on Criminal Procedure, effective on January 1, 1985, (Promulgated on November11, 1984) which deleted all provisions granting that power to said Judges. We had occasion to point thisout in Salta v. Court of Appeals, 143 SCRA 228, and to stress as well certain other basic propositions,namely: (1) that the conduct of a preliminary investigation is "not a judicial function ... (but) part of theprosecution's job, a function of the executive," (2) that wherever "there are enough fiscals or prosecutorsto conduct preliminary investigations, courts are counseled to leave this job which is essentially executive

to them," and the fact "that a certain power is granted does not necessarily mean that it should beindiscriminately exercised."

The 1988 Amendments to the 1985 Rules on Criminal Procedure, declared effective on October 1, 1988(The 1988 Amendments were published in the issue of Bulletin Today of October 29, 1988) did notrestore that authority to Judges of Regional Trial Courts; said amendments did not in fact deal at all withthe officers or courts having authority to conduct preliminary investigations.

This is not to say, however, that somewhere along the line RTC Judges also lost the power to makea preliminary examination for the purpose of determining whether probable cause exists to justify theissuance of a warrant of arrest (or search warrant). Such a power — indeed, it is as much a duty as it is apower — has been and remains vested in every judge by the provision in the Bill of Rights in the 1935the 1973 and the present (1987) Constitutions securing the people against unreasonable searches and



31

seizures, thereby placing it beyond the competence of mere Court rule or statute to revoke. Thedistinction must, therefore, be made clear while an RTC Judge may no longer conduct preliminaryinvestigations to ascertain whether there is sufficient ground for the filing of a criminal complaint orinformation, he retains the authority, when such a pleading is filed with his court, to determine whetherthere is probable cause justifying the issuance of a warrant of arrest. It might be added that this distinctionaccords, rather than conflicts, with the rationale of Salta because both law and rule, in restricting to judges the authority to order arrest, recognize that function to be judicial in nature.

We reiterate that preliminary investigation should be distinguished as to whether it is an investigation for the determinationof a sufficient ground for the filing of the information or it is an investigation for the determination of a probable cause forthe issuance of a warrant of arrest. The first kind of preliminary investigation is executive in nature. It is part of theprosecution'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. It is in this context that we address the issue raised in the instant petition soas to give meaning to the constitutional power vested in the COMELEC regarding election offenses.

Article IX C Section 2 of the Constitution provides:

Sec. 2. The Commission on Elections shall exercise the following powers and functions

(1) Enforce and administer all laws and regulations relative to the conduct of an election, plebiscite,

initiative, referendum, and recall.

xxx xxx xxx

(6) File, upon a verified complaint, or on its own initiative, petitions in court for inclusion or exclusion ofvotes, investigate and, where appropriate, prosecute cases of violation of election laws, including acts oromission constituting election frauds, offenses, and practices. (Emphasis supplied)

In effect the 1987 Constitution mandates the COMELEC not only to investigate but also to prosecute cases of violation ofelection laws. This means that the COMELEC is empowered to conduct preliminary investigations in cases involvingelection offenses for the purpose of helping the Judge determine probable cause and for filing an information in court. Thispower is exclusive with COMELEC.

The grant to the COMELEC of the power, among others, to enforce and administer all laws relative to theconduct of election and the concomittant authority to investigate and prosecute election offenses is notwithout compelling reason. The evident constitutional intendment in bestowing this power to theCOMELEC is to insure the free, orderly and honest conduct of elections, failure of which would result inthe frustration of the true will of the people and make a mere idle ceremony of the sacred right and duty ofevery qualified citizen to vote. To divest the COMELEC of the authority to investigate and prosecuteoffenses committed by public officials in relation to their office would thus seriously impair its effectivenessin achieving this clear constitutional mandate.

From a careful scrutiny of the constitutional provisions relied upon by the Sandiganbayan, We perceivedneither explicit nor implicit grant to it and its prosecuting arm, the Tanodbayan, of the authority toinvestigate, prosecute and hear election offenses committed by public officers in relation to their office as

contradistinguished from the clear and categorical bestowal of said authority and jurisdiction upon theCOMELEC and the courts of first instance under Sections 182 and 184, respectively, of the Election Codeof 1978.

An examination of the provisions of the Constitution and the Election Code of 1978 reveals the cleaintention to place in the COMELEC exclusive jurisdiction to investigate and prosecute election offensescommitted by any person, whether private individual or public officer or employee, and in the latteinstance, irrespective of whether the offense is committed in relation to his official duties or not. In otherwords, it is the nature of the offense and not the personality of the offender that matters. As long as theoffense is an election offense jurisdiction over the same rests exclusively with the COMELEC, in view ofits all-embracing power over the conduct of elections. (Corpus v. Tanodbayan, 149 SCRA 281 [1987])



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Hence, the Provincial Fiscal, as such, assumes no role in the prosecution of election offenses. If the Fiscal or Prosecutorfiles an information charging an election offense or prosecutes a violation of election law, it is because he has beendeputized by the COMELEC. He does not do so under the sole authority of his office. (People v. Basilla, et al., G.R. Nos.83938-40, November 6, 1989).i•t•c -aüsl In the instant case, there is no averment or allegation that the respondent Judgeis bringing in the Provincial Fiscal as a deputy of COMELEC. He wants the Fiscal to "approve" the COMELEC'spreliminary investigation.

It is to be noted that on February 27, 1987 (when the 1987 Constitution was already in effect) the President issuedExecutive Order No. 134 which was the ENABLING ACT FOR ELECTIONS FOR MEMBERS OF CONGRESS ON MAY11, 1987 AND FOR OTHER PURPOSES." Section 11 thereof provides:

Prosecution. The Commission shall, through its duly authorized legal officers, have exclusive power toconduct preliminary investigation of all election offenses punishable as provided for in the precedingsection, and to prosecute the same: Provided, That in the event that the Commission fails to act on anycomplaint within two (2) months from filing, the complainant may file the complaint with the Office of theFiscal or with the Department of Justice for proper investigation and prosecution, if warranted.

The Commission may avail of the assistance of other prosecuting arms of the government.

It is only after a preliminary examination conducted by the COMELEC through its officials or its deputies that section 2,

Article III of the 1987 Constitution comes in. This is so, because, when the application for a warrant of arrest is made andthe information is filed with the court, the judge will then determine whether or not a probable cause exists for theissuance of a warrant of arrest.

Bearing these principles in mind, it is apparant that the respondent trial court misconstrued the constitutional provisionwhen it quashed the information filed by the Provincial Election Supervisor. As indicated above what the respondent triacourt should have done was to enforce its September 30, 1988 order, to wit:

Pursuant to Circular No. 12 of the Chief Justice of the Supreme Court dated June 30, 1987 andconsidering that after a personal examination of the evidence submitted by the investigating ProvinciaElection Supervisor III Negros Oriental (Designated Legal Officer), there is reasonable ground for thisCourt to rely on the certification of said Provincial Election Supervisor III in the information that a probablecause exists, let a warrant issue for the arrest of the accused filing the bail at FIVE THOUSAND(P5,000.00) PESOS as recommended by the Provincial Election Supervisor III.

The order to get the approval of the Provincial Fiscal is not only superfluous but unwarranted.

WHEREFORE, the instant petition is GRANTED. The questioned Orders dated October 3, 1988, November 22, 1988 andDecember 8, 1988 are REVERSED and SET ASIDE. The respondent trial court's Order dated September 30, 1988 isREINSTATED. The respondent court is ordered to proceed hearing the case with deliberate speed until its termination.

SO ORDERED.



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G.R. No. 82585 November 14, 1988

MAXIMO V. SOLIVEN, ANTONIO V. ROCES, FREDERICK K. AGCAOLI, and GODOFREDO L.MANZANAS,petitioners,vs.THE HON. RAMON P. MAKASIAR, Presiding Judge of the Regional Trial Court of Manila, Branch 35,UNDERSECRETARY SILVESTRE BELLO III, of the Department of Justice, LUIS C. VICTOR, THE CITY FISCAL OF

MANILA and PRESIDENT CORAZON C. AQUINO, respondents.

G.R. No. 82827 November 14, 1988

LUIS D. BELTRAN, petitioner,vs.THE HON. RAMON P. MAKASIAR, Presiding Judge of Branch 35 of the Regional Trial Court, at Manila, THE HON.LUIS VICTOR, CITY FISCAL OF MANILA, PEOPLE OF THE PHILIPPINES, SUPERINTENDENT OF THE WESTERNPOLICE DISTRICT, and THE MEMBERS OF THE PROCESS SERVING UNIT AT THE REGIONAL TRIAL COURT OFMANILA, respondents.

G.R. No. 83979 November 14, 1988.

LUIS D. BELTRAN, petitioner,vs.EXECUTIVE SECRETARY CATALINO MACARAIG, SECRETARY OF JUSTICE SEDFREY ORDOÑEZ,UNDERSECRETARY OF JUSTICE SILVESTRE BELLO III, THE CITY FISCAL OF MANILA JESUS F. GUERRERO,and JUDGE RAMON P. MAKASIAR, Presiding Judge of Branch 35 of the Regional Trial Court, atManila, respondents.

Angara, Abello, Concepcion, Regala and Cruz for petitioners in G.R. No. 82585.

Perfecto V. Fernandez, Jose P. Fernandez and Cristobal P. Fernandez for petitioner in G.R. Nos. 82827 and 83979.

R E S O L U T I O N

PER CURIAM:

In these consolidated cases, three principal issues were raised: (1) whether or not petitioners were denied due processwhen informations for libel were filed against them although the finding of the existence of a prima faciecase was stilunder review by the Secretary of Justice and, subsequently, by the President; (2) whether or not the constitutional rightsof Beltran were violated when respondent RTC judge issued a warrant for his arrest without personally examining thecomplainant and the witnesses, if any, to determine probable cause; and (3) whether or not the President of thePhilippines, under the Constitution, may initiate criminal proceedings against the petitioners through the filing of acomplaint-affidavit.

Subsequent events have rendered the first issue moot and academic. On March 30, 1988, the Secretary of Justice deniedpetitioners' motion for reconsideration and upheld the resolution of the Undersecretary of Justice sustaining the CityFiscal's finding of a prima facie case against petitioners. A second motion for reconsideration filed by petitioner Beltranwas 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 theExecutive Secretary on May 16, 1988. With these developments, petitioners' contention that they have been denied theadministrative 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 preliminaryinvestigation is negated by the fact that instead of submitting his counter- affidavits, he filed a "Motion to DeclareProceedings Closed," in effect waiving his right to refute the complaint by filing counter-affidavits. Due process of law doesnot require that the respondent in a criminal case actually file his counter-affidavits before the preliminary investigation is



34

deemed completed. All that is required is that the respondent be given the opportunity to submit counter-affidavits if he isso minded.

The second issue, raised by petitioner Beltran, calls for an interpretation of the constitutional provision on the issuance ofwarrants 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 agains

unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and nosearch warrant or warrant of arrest shall issue except upon probable cause to be determined personallyby the judge after examination nder oath or affirmation of the complainant and the witnesses he mayproduce, 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 1973Constitution to issue warrants to "other responsible officers as may be authorized by law," has apparently convincedpetitioner Beltran that the Constitution now requires the judge to personally examine the complainant and his witnesses inhis 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 theexistence of probable cause. In satisfying himself of the existence of probable cause for the issuance of a warrant ofarrest, 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 fiscalregarding the existence of probable cause and, on the basis thereof, issue a warrant of arrest; or (2) if on the basis thereofhe finds no probable cause, he may disregard the fiscal's report and require the submission of supporting affidavits ofwitnesses to aid him in arriving at a conclusion as to the existence of probable cause.

Sound policy dictates this procedure, otherwise judges would be unduly laden with the preliminary examination andinvestigation 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 ofwarrants 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 cannotbe sustained.

Anent the third issue, petitioner Beltran argues that "the reasons which necessitate presidential immunity from suit imposea correlative disability to file suit." He contends that if criminal proceedings ensue by virtue of the President's filing of hercomplaint-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 onthe 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 Presidentiaduties and functions free from any hindrance or distraction, considering that being the Chief Executive of the Governmentis 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 theholder of the office; not by any other person in the President's behalf. Thus, an accused in a criminal case in which thePresident is complainant cannot raise the presidential privilege as a defense to prevent the case from proceeding againstsuch accused.

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



35

As regards the contention of petitioner Beltran that he could not be held liable for libel because of the privileged characteor 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 toappreciate 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 freedomthe 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 toamount 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 publicrespondents, the Court Resolved to DISMISS the petitions in G. R. Nos. 82585, 82827 and 83979. The Order to maintainthe status quo contained in the Resolution of the Court en banc dated April 7, 1988 and reiterated in the Resolution dated April 26, 1988 is LIFTED.

Fernan, C.J., Narvasa, Melencio-Herrera, Cruz, Paras, Feliciano, Gancayco, Padilla, Bidin, Sarmiento, Cortes, Griño- Aquino Medialdea and Regalado, JJ., concur.



36

G.R. No. L-22196 June 30, 1967

ESTEBAN MORANO, CHAN SAU WAH and FU YAN FUN, petitioners-appellants,vs.HON. MARTINIANO VIVO in his capacity as Acting Commissioner of Immigration, respondent-appellant.

Engracio Fabre Law Office for petitioners-appellants.

Office of the Solicitor General Arturo A. Alafriz and Solicitor A. M. Amores for respondent-appellant.

SANCHEZ, J .:

Chan Sau Wah, a Chinese citizen born in Fukien, China on January 6, 1932, arrived in the Philippines on November 231961 to visit her cousin, Samuel Lee Malaps. She left in mainland China two of her children by a first marriage: Fu TseHaw and Fu Yan Kai With her was Fu Yan Fun, her minor son also by the first marriage, born in Hongkong on September11, 1957.

Chan Sau Wah and her minor son Fu Yan Fun were permitted only into the Philippines under a temporary visitor's visa fortwo (2) months and after they posted a cash bond of P4,000.00.

On January 24, 1962, Chan Sau Wah married Esteban Morano, a native-born Filipino citizen. Born to this union onSeptember 16, 1962 was Esteban Morano, Jr.

To prolong their stay in the Philippines, Chan Sau Wah and Fu Yan Fun obtained several extensions. The last extensionexpired on September 10, 1962.1äwphï1.ñët

In a letter dated August 31, 1962, the Commissioner of Immigration ordered Chan Sau Wah and her son, Fu Yan Fun, toleave the country on or before September 10, 1962 with a warning that upon failure so to do, he will issue a warrant fortheir arrest and will cause the confiscation of their bond.

Instead of leaving the country, on September 10, 1962, Chan Sau Wah (with her husband Esteban Morano) and Fu YanFun petitioned the Court of First Instance of Manila for mandamus to compel the Commissioner of Immigration to cancepetitioners' Alien Certificates of Registration; prohibition to stop the Commissioner from issuing a warrant for their arrest,

and preliminary injunction to restrain the Commissioner from confiscating their cash bond and from issuing warrants oarrest pending resolution of this case.1 The trial court, on November 3, 1962, issued the writ of preliminary injunctionprayed for, upon a P2,000-bond. After trial and the stipulations of facts filed by the parties, the Court of First Instancerendered judgment, viz :

IN VIEW OF ALL THE FOREGOING, judgment is hereby rendered as follows:

(a) Granting this petition for Mandamus and Prohibition with respect to petitioner CHAN SAU WAH, who is herebydeclared a citizen of the Philippines; ordering the respondent to cancel her Alien Certificate of Registration andother immigration papers, upon the payment of proper dues; and declaring the preliminary injunction with respectto her permanent, prohibiting the respondent, his representatives or subordinates from arresting and/or deportingsaid petitioner;

(b) Dismissing this petition with respect to petitioner FU YAN FUN, and dissolving the writ of preliminary injunctionissued herein, restraining the respondent, his representatives or subordinates from arresting and/or deporting saidpetitioner;

(c) Authorizing respondent Commissioner to forfeit the bond filed by herein petitioners CHAN SAU WAH and FUYAN FUN in the amount of P4,000.00; and

(d) Denying, for lack of merit, the prayer to declare Sec. 37 (a) of the Philippine Immigration Act of 1940unconstitutional;

Without pronouncement, as to costs.



37

Petitioners and respondent Commissioner both appealed.

We will deal with the claims of both appellants in their proper sequence.

1. The Solicitor General's brief assails the trial court's declaration that Chan Sau Wah is a citizen of the Philippines. Thecourt a quo took the position that "Chan Sau Wah became, by virtue of, and upon, her marriage to Esteban Morano, anatural-born Filipino, a Filipino citizen.2

Placed to the fore is paragraph 1, Section 15 of Commonwealth Act 473 [Revised Naturalization Act], which reads:

Sec. 15. Effect of the naturalization on wife children. — Any woman who is now or may hereafter be married to acitizen of the Philippines, and who might herself be lawfully naturalized shall be deemed a citizen of thePhilippines.

To apply this provision, two requisites must concur: (a) valid marriage of an alien woman to a citizen of the Philippines and(b) the alien woman herself might be lawfully naturalized.

We may concede that the first requisite has been properly met. The validity of the marriage is presumed.

But can the same be said of the second requisite? This question by all means is not new. In a series of cases, this Courthas declared that the marriage of an alien woman to a Filipino citizen does not ipso facto make her a Filipino citizen. Shemust satisfactorily show that she has all the qualifications and none of the disqualifications required by the NaturalizationLaw.3 Ly Giok Ha alias Wy Giok Ha et al. vs. Emilio Galang , L-21332, March 18, 1966,* clearly writes down the philosophybehind the rule in the following expressive language, viz :

Reflection will reveal why this must be so. The qualifications prescribed under section 2 of the Naturalization Act,and the disqualifications enumerated in its section 4, are not mutually exclusive; and if all that were to be requiredis that the wife of a Filipino be not disqualified under section 4, the result might well be that citizenship would beconferred upon persons in violation of the policy of the statute. For example, section 4 disqualifies only —

"(c) Polygamists or believers in the practice of polygamy; and

(b) Persons convicted of crimes involving moral turpitude,"

so that a blackmailer, or a maintainer of gambling or bawdy houses, not previously convicted by a competentcourt, would not be thereby disqualified; still it is certain that the law did not intend such a person to, be admittedas a citizen in view of the requirement of section 2 that an applicant for citizenship "must be of good moracharacter."

Similarly, the citizen's wife might be a convinced believer in racial supremacy, in government by certain selectedclasses, in the right to vote exclusively by certain "herrenvolk," and thus disbelieve in the principles underlying thePhilippine Constitution; yet she would not be disqualified under section 4, as long as she is not "opposed toorganized government," nor affiliated to groups "upholding or teaching doctrines opposing all organizedgovernments," nor "defending or teaching the necessity or propriety of violence, personal assault or assassinationfor the success or predominance of their ideas." Et sic de caeteris.

Upon the principle of selective citizenship, we cannot afford to depart from the wise precept affirmed and reaffirmed in thecases heretofore noted.

In the additional stipulation of facts of July 3, 1963, petitioners admit that Chan Sau Wah is not possessed of all thequalifications required by the Naturalization Law.

Because of all these we are left under no doubt that petitioner Chan Sau Wah did not become a Filipino citizen.

2. Squarely put in issue by petitioners is the constitutionality of Section 37 (a) of the Immigration Act of 1940, which reads:



38

Sec. 37. (a) The following aliens shall be arrested upon the warrant of the Commissioner of Immigration or of anyother officer designated by him for the purpose and deported upon the warrant of the Commissioner ofImmigration after a determination by the Board of Commissioners of the existence of the ground for deportationas charged against the alien:

x x x x x x x x x

(7) Any alien who remains in the Philippines in violation of any limitation or condition under which he was admittedas a nonimmigrant.

Petitioners argue that the legal precept just quoted trenches upon the constitutional mandate in Section 1 (3), Article III[Bill of Rights] of the Constitution, to wit:

(3) The right of the people to be secure in their persons, houses, papers, and effects against unreasonablesearches and seizures shall not be violated, and no warrants shall issue but upon probable cause, to bedetermined by the judge after examination under oath or affirmation of the complainant and the witnesses he mayproduce, and particularly describing the place to be searched, and the persons or things to be seized.

They say that the Constitution limits to judges the authority to issue warrants of arrest and that the legislative delegation ofsuch power to the Commissioner of Immigration is thus violative of the Bill of Rights.

Section 1 (3), Article III of the Constitution, we perceive, does not require judicial intervention in the execution of a finaorder of deportation issued in accordance with law. The constitutional limitation contemplates an order of arrest in theexercise of judicial power 4 as a step preliminary or incidental to prosecution or proceedings for a given offense oradministrative action, not as a measure indispensable to carry out a valid decision by a competent official, such as a legaorder of deportation, issued by the Commissioner of Immigration, in pursuance of a valid legislation.

The following from American Jurisprudence,5 is illuminating:

It is thoroughly established that Congress has power to order the deportation of aliens whose presence in thecountry it deems hurtful. Owing to the nature of the proceeding, the deportation of an alien who is found in thiscountry in violation of law is not a deprivation of liberty without due process of law. This is so, although the inquiry

devolves upon executive officers, and their findings of fact, after a fair though summary hearing, are madeconclusive.

x x x x x x x x x

The determination of the propriety of deportation is not a prosecution for, or a conviction of, crime; nor is thedeportation a punishment, even though the facts underlying the decision may constitute a crime under local lawThe proceeding is in effect simply a refusal by the government to harbor persons whom it does not want. Thecoincidence of local penal law with the policy of Congress is purely accidental, and, though supported by thesame facts, a criminal prosecution and a proceeding for deportation are separate and independent.

In consequence, the constitutional guarantee set forth in Section 1 (3), Article III of the Constitution aforesaid, requiringthat the issue of probable cause be determined by a judge, does not extend to deportation proceedings. 6

The view we here express finds support in the discussions during the constitutional convention. The conventionrecognized, as sanctioned by due process, possibilities and cases of deprivation of liberty, other than by order of acompetent court.7

Indeed, the power to deport or expel aliens is an attribute of sovereignty. Such power is planted on the "accepted maximof international law, that every sovereign nation has the power, as inherent in sovereignty, and essential to selfpreservation, to forbid the entrance of foreigners within its dominions."8 So it is, that this Court once aptly remarked thatthere can be no controversy on the fact that where aliens are admitted as temporary visitors, "the law is to the effect thattemporary visitors who do not depart upon the expiration of the period of stay granted them are subject to deportation bythe Commissioner of Immigration, for having violated the limitation or condition under which they were admitted as non-immigrants (Immigration Law, Sec. 37 (a), subsection (7); C.A. 613, as amended)."9



39

And, in a case directly in point, where the power of the Commissioner to issue warrants of arrest waschallenged as unconstitutional , because "such power is only vested in a judge by Section 1, paragraph 3, Article III of ourConstitution," this Court declared —

This argument overlooks the fact that the stay of appellant Ng Hua To as temporary visitor is subject to certaincontractual stipulations as contained in the cash bond put up by him, among them, that in case of breach theCommissioner may require the recommitment of the person in whose favor the bond has been filed. The

Commissioner did nothing but to enforce such condition. Such a step is necessary to enable the Commissioner toprepare the ground for his deportation under section 37 (a) of Commonwealth Act 613. A contrary interpretationwould render such power nugatory to the detriment of the State.10

It is in this context that we rule that Section 37 (a) of the Immigration Act of 1940 is not constitutionally proscribed.

3. A sequel to the questions just discussed is the second error set forth in the government's brief. The Solicitor Generabalks at the lower court's ruling that petitioner Chan Sau Wah is entitled to permanent residence in the Philippines withoufirst complying with the requirements of Sections 9 and 13 of the Immigration Act of 1940, as amended by Republic Act503.

We first go to the law, viz :

SEC. 9 [last paragraph]

An alien who is admitted as a nonimmigrant cannot remain in the Philippines permanently. To obtain permanenadmission, a nonimmigrant alien must depart voluntarily to some foreign country and procure from the appropriatePhilippine consul the proper visa and thereafter undergo examination by the officers of the Bureau of Immigrationat a Philippine port of entry for determination of his admissibility in accordance with the requirements of this Act.

SEC. 13. Under the conditions set forth in this Act there may be admitted into the Philippines immigrants, termed"quota immigrants" not in excess of fifty (50) of any one nationality or without nationality for any one calendaryear, except that the following immigrants, termed "nonquota immigrants," maybe admitted without regard to suchnumerical limitations.

The corresponding Philippine Consular representative abroad shall investigate and certify the eligibility of a quotaimmigrant previous to his admission into the Philippines. Qualified and desirable aliens who are in the Philippinesunder temporary stay may be admitted within the quota, subject to the provisions of the last paragraph of section9 of this Act.

(a) The wife or the husband or the unmarried child under twenty-one years of age of a Philippine citizen, iaccompanying or following to join such citizen;

(b) A child of alien parents born during the temporary visit abroad of the mother, the mother having beenpreviously lawfully admitted into the Philippine for permanent residence, if the child is accompanying or coming to join a parent and applies for admission within five years from the date of its birth;

Concededly, Chan Sau Wah entered the Philippines on a tourist-temporary visitor's visa. She is a non-immigrant. Under

Section 13 just quoted, she may therefore be admitted if she were a qualified and desirable alien and subject to theprovisions of the last paragraph of Section 9. Therefore, first , she must depart voluntarily to some foreign country; secondshe must procure from the appropriate consul the proper visa; and third , she must thereafter undergo examination by theofficials of the Bureau of Immigration at the port of entry for determination of her admissibility in accordance with therequirements of the immigration Act.

This Court in a number of cases has ruled, and consistently too, that an alien admitted as a temporary visitor cannotchange his or her status without first departing from the country and complying with the requirements of Section 9 of theImmigration Act. 11

The gravamen of petitioners' argument is that Chan Sau Wah has, since her entry, married in Manila a native-bornFilipino, Esteban Morano. It will not particularly help analysis for petitioners to appeal to family solidarity in an effort to



40

thwart her deportation. Chan Sau Wah, seemingly is not one who has a high regard for such solidarity. Proof: She left twoof her children by the first marriage, both minors, in the care of neighbors in Fukien, China.

Then, the wording of the statute heretofore adverted to is a forbidding obstacle which will prevent this Court from writinginto the law an additional provision that marriage of a temporary alien visitor to a Filipino would ipso factomake her apermanent resident in his country. This is a field closed to judicial action. No breadth of discretion is allowed us. Wecannot insulate her from the State's power of deportation.

Really, it would be an easy matter for an alien woman to enter the Philippines as a temporary visitor, go through a mockmarriage, but actually live with another man as husband and wife, and thereby skirt the provisions of our immigration law. Also, a woman of undesirable character may enter this country, ply a pernicious trade, marry a Filipino, and again throwoverboard Sections 9 and 13 of the Act. Such a flanking movement, we are confident, is impermissible.

Recently we confirmed the rule that an alien wife of a Filipino may not stay permanently without first departing from thePhilippines. Reason: Discourage entry under false pretenses. 12

The ruling of the trial court on this score should be reversed.

4. It is petitioners' turn to point as error the dismissal of the petition for mandamus and prohibition with respect to petitionerFu Yan Fun.

Petitioners' line of thought is this: Fu Yan Fun follows the citizenship of his mother. They cite Section 15, paragraph 3,Commonwealth Act 473, which says that:

A foreign-born minor child, if dwelling in the Philippines at the time of the naturalization of the parent, shalautomatically become a Philippine citizen. . . .

Petitioners' position is based on the assumption that Chan Sau Wah, the mother, is a Filipino citizen. We have held thatshe is not. At best, Fu Yan Fun is a step-son of Esteban Morano, husband of Chan Sau Wah. A step-son is not a foreign-born child of the step-father. The word child, we are certain, means legitimate child, not a step-child. We are not wantingin precedents. Thus, when the Constitution provides that "[t]hose whose fathers are citizens of the Philippines" arecitizens thereof, 13 the fundamental charter intends "those" to apply to legitimate children. 14 In another case, the term

"minor children" or "minor child" in Section 15 of the Revised Naturalization Law refers only to legitimate children ofFilipino citizens. This Court, thru Mr. Chief Justice Roberto Concepcion, there said: 15

It is claimed that the phrases "minor children" and "minor child," used in these provisions, include adoptedchildren. The argument is predicated upon the theory that an adopted child is, for all intents and purposes, alegitimate child. Whenever, the word "children" or "child" is used in statutes, it is generally understood, howeverto refer to legitimate children, unless the context of the law and its spirit indicate clearly the contrary. Thus, forinstance, when the Constitution provides that "those whose fathers are citizens of the Philippines," and "thosewhose mothers are citizens of the Philippines" who shall elect Philippine citizenship upon reaching the age ofmajority, are citizens of the Philippines (Article IV, Section 1, subdivisions [3] and [4]), our fundamental law clearlyrefers to legitimate children (Chiongbian vs. De Leon, 46 Off. Gaz., 3652-3654; Serra v. Republic, L-4223, May12, 1952).

At any rate, Fu Yan Fun entered the Philippines as a temporary visitor. The status of a temporary visitor cannot beconverted into, that of a permanent resident, as we have heretofore held, without first complying with Section 9 of theImmigration Law.

5. Petitioners finally aver that the lower court erred in authorizing respondent Commissioner to forfeit the bond filed bypetitioners Chan Sau Wah and Fu Yan Fun in the amount of P4,000.00.

Here is petitioners' posture. They enjoyed their stay in the Philippines upon a bond. Now they come to court and say thatas the prescribed form of this bond was not expressly approved by the Secretary of Justice in accordance with Section 3of Commonwealth Act 613, which reads —



41

SEC. 3. . . . He [Commissioner of Immigration] shall issue, subject to the approval of the Department Head, suchrules and regulations and prescribes such forms of bond, reports, and other papers, and shall issue from time totime such instruction, not inconsistent with law, as he shall deem best calculated to carry out the provisions of theimmigration laws. . . .

that bond is void.

Reasons there are which prevent us from giving our imprimatur to this argument.

The provision requiring official approval of a bond is merely directory. "Irregularity or entire failure in this respect does noaffect the validity of the bond. 16 The reason for the rule, is found in 9 C.J., p. 26 (footnote), which reads:

(a) Reason for rule. — "Statutes requiring bonds to be approved by certain officials are not for the purpose of protectingthe obligors in the bond, but are aimed to protect the public, to insure their solvency, and to create evidence of anunimpeachable character of the fact of their execution. When they are executed for a legal purpose, before a propertribunal, and are in fact accepted and approved by the officer or body, whose duty it was to approve them, it could serveno useful purpose of the law to hold them invalid, to release all the obligors thereon, and to defeat every purpose of itsexecution, simply because the fact of approval was not indorsed precisely as had been directed by the Legislature." American Book Co. vs. Wells, 83 SW 622, 627, 26 Ky L-1159. (emphasis supplied)

And another. This bond was accepted by the government. It had been there. The form of the bond here used is of longcontinued usage. If the government did not question the form of the bond at all, then we must assume that it counted withthe Secretary's approval. For the presumption is that official duty has been legally performed.

Surely enough, equitable considerations will stop petitioners from pleading invalidity of the bond. They offered that bond toenable them to enter and stay in this country. They enjoyed benefits therefrom. They cannot, "in law, and goodconscience, be allowed to reap the fruits" of that bond, and then jettison the same. They are "precluded from attacking thevalidity" of such bond. 17

Actually, to petitioners the bond was good while they sought entry into the Philippines; they offered it as security for theundertaking; that they "will actually depart from the Philippines" when their term of stay expires. Now that the bond isbeing confiscated because they overstayed, they make an about-face and say that such bond is null and void. They shal

not profit from this inconsistent position. Their bond should be confiscated.

Conformably to the foregoing, the judgment under review is hereby modified as follows:

(1) The portion thereof which reads:

(a) Granting their petition for Mandamus and Prohibition with respect to petitioner CHAN SAU WAH, who ishereby declared a citizen of the Philippines; ordering the respondent to cancel her Alien Certificate of Registrationand other immigration papers, upon the payment of proper dues; and declaring preliminary injunction with respectto her permanent, prohibiting the respondent, his representatives or subordinates from arresting and/or deportingsaid petitioner;

is hereby reversed: and, in consequence —

The petition for mandamus and prohibition with respect to petitioner Chan Sau Wah is hereby denied; and the judgmendeclaring her a citizen of the Philippines, directing respondent to cancel her Alien Certificate of Registration and otherimmigration papers, and declaring the preliminary injunction with respect to her permanent, are all hereby set aside; and

(2) In all other respects, the decision appealed from is hereby affirmed.

No costs. So ordered.



42

G.R. No. 81510 March 14, 1990

HORTENCIA SALAZAR, petitioner,vs.HON. TOMAS D. ACHACOSO, in his capacity as Administrator of the Philippine Overseas EmploymentAdministration, and FERDIE MARQUEZ, respondents.

Gutierrez & Alo Law Offices for petitioner.

SARMIENTO, J.:

This concerns the validity of the power of the Secretary of Labor to issue warrants of arrest and seizure under Article 38 ofthe Labor Code, prohibiting illegal recruitment.


xxx xxx xxx

1. On October 21, 1987, Rosalie Tesoro of 177 Tupaz Street, Leveriza, Pasay City, in a sworn statemenfiled with the Philippine Overseas Employment Administration (POEA for brevity) charged petitionerHortencia Salazar, viz :

04. T: Ano ba ang dahilan at ikaw ngayon ay narito atnagbibigay ng salaysay.

S: Upang ireklamo sa dahilan ang aking PECC Card ayayaw ibigay sa akin ng dati kong manager. — HortySalazar — 615 R.O. Santos, Mandaluyong, Mla.

05. T: Kailan at saan naganap and ginawang panloloko saiyo ng tao/mga taong inireklamo mo?

S. Sa bahay ni Horty Salazar.

06. T: Paano naman naganap ang pangyayari?

S. Pagkagaling ko sa Japan ipinatawag niya ako. Kinuhaang PECC Card ko at sinabing hahanapan ako ngbooking sa Japan. Mag 9 month's na ako sa Phils. ayhindi pa niya ako napa-alis. So lumipat ako ng ibangcompany pero ayaw niyang ibigay and PECC Cardko.

2. On November 3, 1987, public respondent Atty. Ferdinand Marquez to whom said complaint wasassigned, sent to the petitioner the following telegram:

YOU ARE HEREBY DIRECTED TO APPEAR BEFORE FERDIE MARQUEZ POEA ANTILLEGAL RECRUITMENT UNIT 6TH FLR. POEA BLDG. EDSA COR. ORTIGAS AVEMANDALUYONG MM ON NOVEMBER 6, 1987 AT 10 AM RE CASE FILED AGAINSTYOU. FAIL NOT UNDER PENALTY OF LAW.

4. On the same day, having ascertained that the petitioner had no license to operate a recruitmentagency, public respondent Administrator Tomas D. Achacoso issued his challenged CLOSURE ANDSEIZURE ORDER NO. 1205 which reads:



43

HORTY SALAZARNo. 615 R.O. Santos StMandaluyong, Metro Manila

Pursuant to the powers vested in me under Presidential Decree No. 1920 and Executive Order No. 1022I hereby order the CLOSURE of your recruitment agency being operated at No. 615 R.O. Santos St.Mandaluyong, Metro Manila and the seizure of the documents and paraphernalia being used or intended

to be used as the means of committing illegal recruitment, it having verified that you have —

(1) No valid license or authority from the Department of Labor and Employment to recruiand deploy workers for overseas employment;

(2) Committed/are committing acts prohibited under Article 34 of the New Labor Code inrelation to Article 38 of the same code.

This ORDER is without prejudice to your criminal prosecution under existing laws.

Done in the City of Manila, this 3th day of November, 1987.

5. On January 26, 1988 POEA Director on Licensing and Regulation Atty. Estelita B. Espiritu issued anoffice order designating respondents Atty. Marquez, Atty. Jovencio Abara and Atty. Ernesto Vistro asmembers of a team tasked to implement Closure and Seizure Order No. 1205. Doing so, the groupassisted by Mandaluyong policemen and mediamen Lito Castillo of the People's Journal and ErnieBaluyot of News Today proceeded to the residence of the petitioner at 615 R.O. Santos St.Mandaluyong, Metro Manila. There it was found that petitioner was operating Hannalie Dance StudioBefore entering the place, the team served said Closure and Seizure order on a certain Mrs. FloraSalazar who voluntarily allowed them entry into the premises. Mrs. Flora Salazar informed the team thatHannalie Dance Studio was accredited with Moreman Development (Phil.). However, when required toshow credentials, she was unable to produce any. Inside the studio, the team chanced upon twelve talentperformers — practicing a dance number and saw about twenty more waiting outside, The teamconfiscated assorted costumes which were duly receipted for by Mrs. Asuncion Maguelan and witnessedby Mrs. Flora Salazar.

6. On January 28, 1988, petitioner filed with POEA the following letter:

Gentlemen:

On behalf of Ms. Horty Salazar of 615 R.O. Santos, Mandaluyong, Metro Manila, we respectfully requesthat the personal properties seized at her residence last January 26, 1988 be immediately returned on theground that said seizure was contrary to law and against the will of the owner thereof. Among our reasonsare the following:

1. Our client has not been given any prior notice or hearing, hence the Closure andSeizure Order No. 1205 dated November 3, 1987 violates "due process of law"guaranteed under Sec. 1, Art. III, of the Philippine Constitution.

2. Your acts also violate Sec. 2, Art. III of the Philippine Constitution which guaranteesright of the people "to be secure in their persons, houses, papers, and effects againsunreasonable searches and seizures of whatever nature and for any purpose."

3. The premises invaded by your Mr. Ferdi Marquez and five (5) others (including 2policemen) are the private residence of the Salazar family , and the entry, search as welas the seizure of the personal properties belonging to our client were without her consenand were done with unreasonable force and intimidation, together with grave abuse ofthe color of authority, and constitute robbery and violation of domicile under Arts. 293 and128 of the Revised Penal Code.



44

Unless said personal properties worth around TEN THOUSAND PESOS (P10,000.00) inall (and which were already due for shipment to Japan) are returned within twenty-four(24) hours from your receipt hereof, we shall feel free to take all legal action, civil andcriminal, to protect our client's interests.

We trust that you will give due attention to these important matters.

7. On February 2, 1988, before POEA could answer the letter, petitioner filed the instant petition; on evendate, POEA filed a criminal complaint against her with the Pasig Provincial Fiscal, docketed as IS-88-836. 1

On February 2, 1988, the petitioner filed this suit for prohibition. Although the acts sought to be barred are already faiaccompli , thereby making prohibition too late, we consider the petition as one for certiorari in view of the grave publicinterest involved.

The Court finds that a lone issue confronts it: May the Philippine Overseas Employment Administration (or the Secretaryof Labor) validly issue warrants of search and seizure (or arrest) under Article 38 of the Labor Code? It is also an issuesquarely raised by the petitioner for the Court's resolution.

Under the new Constitution, which states:

. . . no search warrant or warrant of arrest shall issue except upon probable cause to be determinedpersonally by the judge after examination under oath or affirmation of the complainant and the witnesseshe may produce, and particularly describing the place to be searched and the persons or things to beseized. 2

it is only a judge who may issue warrants of search and arrest. 3 In one case, it was declared that mayors may notexercise this power:

xxx xxx xxx

But it must be emphasized here and now that what has just been described is the state of the law as it

was in September, 1985. The law has since been altered. No longer does the mayor have at this time thepower to conduct preliminary investigations, much less issue orders of arrest. Section 143 of the LocalGovernment Code, conferring this power on the mayor has been abrogated, rendered functus officio bythe 1987 Constitution which took effect on February 2, 1987, the date of its ratification by the Filipinopeople. Section 2, Article III of the 1987 Constitution pertinently provides that "no search warrant orwarrant of arrest shall issue except upon probable cause to be determined personally by the judge afterexamination under oath or affirmation of the complainant and the witnesses he may produce, andparticularly describing the place to be searched and the person or things to be seized." The constitutionaproscription has thereby been manifested that thenceforth, the function of determining probable causeand issuing, on the basis thereof, warrants of arrest or search warrants, may be validly exercised only by judges, this being evidenced by the elimination in the present Constitution of the phrase, "such otherresponsible officer as may be authorized by law" found in the counterpart provision of said 1973Constitution, who, aside from judges, might conduct preliminary investigations and issue warrants o

arrest or search warrants.4

Neither may it be done by a mere prosecuting body:

We agree that the Presidential Anti-Dollar Salting Task Force exercises, or was meant to exerciseprosecutorial powers, and on that ground, it cannot be said to be a neutral and detached "judge" todetermine the existence of probable cause for purposes of arrest or search. Unlike a magistrate, aprosecutor is naturally interested in the success of his case. Although his office "is to see that justice isdone and not necessarily to secure the conviction of the person accused," he stands, invariably, as theaccused's adversary and his accuser. To permit him to issue search warrants and indeed, warrants ofarrest, is to make him both judge and jury in his own right, when he is neither. That makes, to our mind



45

and to that extent, Presidential Decree No. 1936 as amended by Presidential Decree No. 2002unconstitutional. 5

Section 38, paragraph (c), of the Labor Code, as now written, was entered as an amendment by Presidential DecreesNos. 1920 and 2018 of the late President Ferdinand Marcos, to Presidential Decree No. 1693, in the exercise of hislegislative powers under Amendment No. 6 of the 1973 Constitution. Under the latter, the then Minister of Labor merelyexercised recommendatory powers:

(c) The Minister of Labor or his duly authorized representative shall have the power to recommend thearrest and detention of any person engaged in illegal recruitment. 6

On May 1, 1984, Mr. Marcos promulgated Presidential Decree No. 1920, with the avowed purpose of giving more teeth tothe campaign against illegal recruitment. The Decree gave the Minister of Labor arrest and closure powers:

(b) The Minister of Labor and Employment shall have the power to cause the arrest and detention of suchnon-licensee or non-holder of authority if after proper investigation it is determined that his activitiesconstitute a danger to national security and public order or will lead to further exploitation of job-seekersThe Minister shall order the closure of companies, establishment and entities found to be engaged in therecruitment of workers for overseas employment, without having been licensed or authorized to do so. 7

On January 26, 1986, he, Mr. Marcos, promulgated Presidential Decree No. 2018, giving the Labor Minister search andseizure powers as well:

(c) The Minister of Labor and Employment or his duly authorized representatives shall have the power tocause the arrest and detention of such non-licensee or non-holder of authority if after investigation it isdetermined that his activities constitute a danger to national security and public order or will lead to furtherexploitation of job-seekers. The Minister shall order the search of the office or premises and seizure ofdocuments, paraphernalia, properties and other implements used in illegal recruitment activities and theclosure of companies, establishment and entities found to be engaged in the recruitment of workers foroverseas employment, without having been licensed or authorized to do so. 8

The above has now been etched as Article 38, paragraph (c) of the Labor Code.

The decrees in question, it is well to note, stand as the dying vestiges of authoritarian rule in its twilight moments.

We reiterate that the Secretary of Labor, not being a judge, may no longer issue search or arrest warrants. Hence, theauthorities must go through the judicial process. To that extent, we declare Article 38, paragraph (c), of the Labor Codeunconstitutional and of no force and effect.

The Solicitor General's reliance on the case of Morano v . Vivo 9 is not well-taken. Vivo involved a deportation casegoverned by Section 69 of the defunct Revised Administrative Code and by Section 37 of the Immigration Law. We haveruled that in deportation cases, an arrest (of an undesirable alien) ordered by the President or his duly authorizedrepresentatives, in order to carry out a final decision of deportation is valid. 10 It is valid, however, because of therecognized supremacy of the Executive in matters involving foreign affairs. We have held: 11

xxx xxx xxx

The State has the inherent power to deport undesirable aliens (Chuoco Tiaco vs. Forbes, 228 U.S. 54957 L. Ed. 960, 40 Phil. 1122, 1125). That power may be exercised by the Chief Executive "when hedeems such action necessary for the peace and domestic tranquility of the nation." Justice Johnson'sopinion is that when the Chief Executive finds that there are aliens whose continued presence in thecountry is injurious to the public interest, "he may, even in the absence of express law, deport them"(Forbes vs. Chuoco Tiaco and Crossfield, 16 Phil. 534, 568, 569; In re McCulloch Dick, 38 Phil. 41).

The right of a country to expel or deport aliens because their continued presence is detrimental to publicwelfare is absolute and unqualified (Tiu Chun Hai and Go Tam vs. Commissioner of Immigration and theDirector of NBI, 104 Phil. 949, 956). 12



46

The power of the President to order the arrest of aliens for deportation is, obviously, exceptional. It (the power to orderarrests) can not be made to extend to other cases, like the one at bar. Under the Constitution, it is the sole domain of thecourts.

Moreover, the search and seizure order in question, assuming, ex gratia argumenti , that it was validly issued, is clearly inthe nature of a general warrant:

Pursuant to the powers vested in me under Presidential Decree No. 1920 and Executive Order No. 1022I hereby order the CLOSURE of your recruitment agency being operated at No. 615 R.O. Santos St.Mandaluyong, Metro Manila and the seizure of the documents and paraphernalia being used or intendedto be used as the means of committing illegal recruitment, it having verified that you have —

(1) No valid license or authority from the Department of Labor and Employment to recruiand deploy workers for overseas employment;

(2) Committed/are committing acts prohibited under Article 34 of the New Labor Code inrelation to Article 38 of the same code.

This ORDER is without prejudice to your criminal prosecution under existing laws. 13

We have held that a warrant must identify clearly the things to be seized, otherwise, it is null and void, thus:

xxx xxx xxx

Another factor which makes the search warrants under consideration constitutionally objectionable is thathey are in the nature of general warrants. The search warrants describe the articles sought to be seizedin this wise:

1) All printing equipment, paraphernalia, paper, ink, photo equipment, typewriterscabinets, tables, communications/ recording equipment, tape recorders, dictaphone andthe like used and/or connected in the printing of the "WE FORUM" newspaper and anyand all documents/communications, letters and facsimile of prints related to the "WE

FORUM" newspaper.

2) Subversive documents, pamphlets, leaflets, books, and other publications to promotethe objectives and purposes of the subversive organizations known as Movement forFree Philippines, Light-a-Fire Movement and April 6 Movement; and

3) Motor vehicles used in the distribution/circulation of the "WE FORUM" and othersubversive 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 v . State of Texas, the search warrant which authorized the search for "books, recordspamphlets, cards, receipts, lists, memoranda, pictures, recordings and other written instrumentsconcerning the Communist Parties of Texas, and the operations of the Community Party in Texas," wasdeclared void by the U.S. Supreme Court for being too general. In like manner, directions to "seize anyevidence in connection with the violation of SDC 13-3703 or otherwise" have been held too general, and



47

that portion of a search warrant which authorized the seizure of any "paraphernalia which could be usedto violate Sec. 54-197 of the Connecticut General Statutes (the statute dealing with the crime ofconspiracy)" was held to be a general warrant, and therefore invalid. The description of the articles soughtto 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 ofdisaccord 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 ofdissent both Catholic and Puritan." Reference herein to such historical episode would not be relevant for itis not the policy of our government to suppress any newspaper or publication that speaks with "the voiceof non-conformity" but poses no clear and imminent danger to state security. 14

For the guidance of the bench and the bar, we reaffirm the following principles:

1. Under Article III, Section 2, of the l987 Constitution, it is only judges, and no other, who may issuewarrants of arrest and search:

2. The exception is in cases of deportation of illegal and undesirable aliens, whom the President or theCommissioner of Immigration may order arrested, following a final order of deportation, for the purpose odeportation.

WHEREFORE, the petition is GRANTED. Article 38, paragraph (c) of the Labor Code is declared UNCONSTITUTIONALand null and void. The respondents are ORDERED to return all materials seized as a result of the implementation ofSearch and Seizure Order No. 1205.

No costs.

SO ORDERED.

[G.R. No. 50720. March 26, 1984.]

SORIANO MATA, Peti t ioner , v. HON. JOSEPHINE K. BAYONA, in her capacity as Presiding Judge of the CityCourt of Ormoc, BERNARDO GOLES and REYNALDO MAYOTE, Respondents

Valeriano R. Ocubillo for Peti t ioner

The Solicitor General for Respondents .

SYLLABUS

1. CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHT AGAINST UNLAWFUL SEARCH AND SEIZURE; REQUISITESFOR ISSUANCE OF SEARCH WARRANT. — Under the Constitution "no search warrant shall issue but upon probablecause to be determined by the Judge or such other responsible officer as may be authorized by law after examinationunder oath or affirmation of the complainant and the witnesses he may produce." More emphatic and detailed is theimplementing rule of the constitutional injunction, Section 4 of Rule 126 which provides that the judge must before issuingthe warrant personally examine on oath or affirmation the complainant and any witnesses he may produce and take theirdepositions in writing, and attach them to the record, in addition to any affidavits presented to him

2. ID.; ID.; ID.; ID.; INSUFFICIENCY OF AFFIDAVITS OF COMPLAINANT AND HIS WITNESSES IN THE CASE ATBAR. — Before issuing a search warrant, the examining Judge has to take depositions in writing of the complainant andthe witnesses he may produce and to attach them to the record. Such written deposition is necessary in order that theJudge may be able to properly determine the existence or non-existence of the probable cause, and to hold liable for



48

perjury the person giving it if it will be found later that his declarations are false. Mere affidavits of the complainant and hiswitnesses are thus not sufficient

3. ID.; ID.; ID.; ID.; NO "DEPOSITION IN WRITING" ATTACHED TO RECORDS OF CASE IN CASE AT BAR. — The judge’s insistence that she examined the complainants under oath has become dubious by petitioner’s claim that at theparticular time when he examined all the relevant papers connected with the issuance of the questioned search warrant,after he demanded the same from the lower court since they were not attached to the records, he did not find any

certification at the back of the joint affidavit of the complainants. Before he filed his motion to quash the search warrantand for the return of the articles seized, he was furnished, upon his request, certified true copies of the said affidavits bythe Clerk of Court but which certified true copies do not bear any certification at the back. Petitioner likewise claims thahis xerox copy of the said joint affidavit obtained at the outset of this case does not show also the certification ofrespondent judge. This doubt becomes more confirmed by respondent Judge’s own admission, while insisting that she didexamine thoroughly the applicants, that "she did not take the deposition of Mayote and Goles because to have done sowould be to hold a judicial proceeding which will be open and public", such that, according to her, the persons subject ofthe intended raid will just disappear and move his illegal operations somewhere else. Could it be that the certification wasmade belatedly to cure the defect of the warrant? Be that as it may, there was no "deposition in writing" attached to therecords of the case in palpable disregard of the statutory prohibition heretofore quoted

4. ID.; ID.; ID.; ID.; DEPOSITIONS, HOW TAKEN. — The searching questions propounded to the applicants of the searchwarrant and his witnesses must depend to a large extent upon the discretion of the Judge just as long as the answersestablish a reasonable ground to believe the commission of a specific offense and that the applicant is one authorized bylaw, and said answers particularly describe with certainty the place to be searched and the persons or things to be seizedThe examination or investigation which must be under oath may not be in public. It may even be held in the secrecy of hischambers. Far more important is that the examination or investigation is not merely routinary but one that is thorough andelicit the required information. To repeat, it must be under oath and must be in writing

5. ID.; ID.; ID.; ID.; MUST BE STRICTLY COMPLIED WITH; CASE AT BAR. — Nothing can justify the issuance of thesearch warrant but the fulfillment of the legal requisites. Thus, in issuing a search warrant the Judge must strictly complywith the requirements of the Constitution and the statutory provisions. In the case at bar, the search warrant is tainted withillegality by the failure of the Judge to conform with essential requisites of taking the depositions in writing and attachingthem to record, rendering the search warrant invalid.

6. ID.; ID.; ID.; ALTHOUGH ILLEGAL, THINGS SEIZED CANNOT BE RETURNED; CASE AT BAR. — While the searchwarrant is illegal, the return of the things seized cannot be ordered. In Castro v. Pabalan (70 SCRA 478), it was held that

the illegality of the search warrant does not call for the return of the things seized, the possession of which is prohibited.

D E C I S I O N

DE CASTRO, J .:

The validity of the search warrant issued by respondent Judge (not reappointed) is challenged by petitioner for its allegedfailure to comply with the requisites of the Constitution and the Rules of Court.

Specifically, the contention is that the search warrant issued by respondent Judge was based merely on the application

for search warrant and a joint affidavit of private respondents which were wrongfully it is alleged subscribed, and sworn tobefore the Clerk of Court of respondent Judge. Furthermore, there was allegedly a failure on the part of respondent Judgeto attach the necessary papers pertinent to the issuance of the search warrant to the records of Criminal Case No. 4298-CC wherein petitioner is accused under PD 810, as amended by PD 1306, the information against him alleging thatSoriano Mata offered, took and arranged bets on the Jai Alai game by "selling illegal tickets known as ‘Masiao ticketswithout any authority from the Philippine Jai Alai & Amusement Corporation or from the government authoritiesconcerned." 1

Petitioner claims that during the hearing of the case, he discovered that nowhere from the records of the said case couldbe found the search warrant and other pertinent papers connected to the issuance of the same, so that he had to inquirefrom the City Fiscal its whereabouts, and to which inquiry respondent Judge replied, "it is with the court." The Judge thenhanded the records to the Fiscal who attached them to the records.chanrobles.com : virtual law library



49

This led petitioner to file a motion to quash and annul the search warrant and for the return of the articles seized, citingand invoking, among others, Section 4 of Rule 126 of the Revised Rules of Court. The motion was denied by respondentJudge on March 1, 1979, stating that the court has made a thorough investigation and examination under oath ofBernardo U. Goles and Reynaldo T. Mayote, members of the Intelligence Section of 352nd PC Co./Police District II INPthat in fact the court made a certification to that effect; and that the fact that documents relating to the search warrantwere not attached immediately to the record of the criminal case is of no moment, considering that the rule does notspecify when these documents are to be attached to the records. 2 Petitioner’s motion for reconsideration of the aforesaid

order having been denied, he came to this Court, with the instant petition, praying, among others, that this Court declarethe search warrant to be invalid and all the articles confiscated under such warrant as inadmissible as evidence in thecase, or in any proceedings on the matter

We hold that the search warrant is tainted with illegality for being violative of the Constitution and the Rules of Court

Under the Constitution "no search warrant shall issue but upon probable cause to be determined by the Judge or suchother responsible officer as may be authorized by law after examination under oath or affirmation of the complainant andthe witnesses he may produce." More emphatic and detailed is the implementing rule of the constitutional injunction,Section 4 of Rule 126 which provides that the judge must before issuing the warrant personally examine on oath oraffirmation the complainant and any witnesses he may produce and take their depositions in writing, and attach them tothe record, in addition to any affidavits presented to him

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

We, therefore, hold that the search warrant is tainted with illegality by the failure of the Judge to conform with the essentiarequisites of taking the depositions in writing and attaching them to the record, rendering the search warrantinvalid.chanroblesvirtualawlibrary

The judge’s insistence that she examined the complainants under oath has become dubious by petitioner’s claim that atthe particular time when he examined all the relevant papers connected with the issuance of the questioned searchwarrant, after he demanded the same from the lower court since they were not attached to the records, he did not find anycertification at the back of the joint affidavit of the complainants. As stated earlier, before he filed his motion to quash thesearch warrant and for the return of the articles seized, he was furnished, upon his request, certified true copies of the

said affidavits by the Clerk of Court but which certified true copies do not bear any certification at the back. Petitionerlikewise claims that his xerox copy of the said joint affidavit obtained at the outset of this case does not show also thecertification of respondent judge. This doubt becomes more confirmed by respondent Judge’s own admission, whileinsisting that she did examine thoroughly the applicants, that "she did not take the deposition of Mayote and Golesbecause to have done so would be to hold a judicial proceeding which will be open and public", 3 such that, according toher, the persons subject of the intended raid will just disappear and move his illegal operations somewhere else

Could it be that the certification was made belatedly to cure the defect of the warrant? Be that as it may, there was no"deposition in writing" attached to the records of the case in palpable disregard of the statutory prohibition heretoforequoted.

Respondent Judge impresses this Court that the urgency to stop the illegal gambling that lures every man, woman andchild, and even the lowliest laborer who could hardly make both ends meet justifies her action. She claims that in order to

abate the proliferation of this illegal "masiao" lottery, she thought it more prudent not to conduct the taking of depositionwhich is done usually and publicly in the court room

Two points must be made clear. The term "depositions" is sometimes used in a broad sense to describe any writtenstatement verified by oath; but in its more technical and appropriate sense the meaning of the word is limited to writtentestimony of a witness given in the course of a judicial proceeding in advance of the trial or hearing upon oral examination.4 A deposition is the testimony of a witness, put or taken in writing, under oath or affirmation before a commissioner,examiner or other judicial officer, in answer to interlocutory and cross interlocutory, and usually subscribed by thewitnesses. 5 The searching questions propounded to the applicants of the search warrant and his witnesses must dependto a large extent upon the discretion of the Judge just as long as the answers establish a reasonable ground to believe thecommission of a specific offense and that the applicant is one authorized by law, and said answers particularly describewith certainty the place to be searched and the persons or things to be seized. The examination or investigation whichmust be under oath may not be in public. It may even be held in the secrecy of his chambers. Far more important is that



50

the examination or investigation is not merely routinary but one that is thorough and elicit the required information. Torepeat, it must be under oath and must be in writing.cralawnad

The other point is that nothing can justify the issuance of the search warrant but the fulfillment of the legal requisites. Itmight be well to point out what has been said in Asian Surety & Insurance Co., Inc. v. Herrera:jgc:chanrobles.com.ph

"It has been said that of all the rights of a citizen, few are of greater importance or more essential to his peace and

happiness than the right of personal security, and that involves the exemption of his private affairs, books, and papersfrom inspection and scrutiny of others. While the power to search and seize is necessary to the public welfare, still it mustbe exercised and the law enforced without transgressing the constitutional rights of the citizens, for the enforcement of nostatute is of sufficient importance to justify indifference to the basic principles of government." 6

Thus, in issuing a search warrant the Judge must strictly comply with the requirements of the Constitution and thestatutory provisions. A liberal construction should be given in favor of the individual to prevent stealthy encroachmentupon, or gradual depreciation of the rights secured by the Constitution. 7 No presumption of regularity are to be invoked inaid of the process when an officer undertakes to justify it. 8

While We hold that the search warrant is illegal, the return of the things seized cannot be ordered. In Castro v. Pabalan, 9it was held that the illegality of the search warrant does not call for the return of the things seized, the possession of whichis prohibited

WHEREFORE, the writ of certiorari is granted and the order of March 1, 1979 denying the motion to annul the searchwarrant as well as the order of March 21, 1979 denying the motion for reconsideration are hereby reversed, the searchwarrant, being declared herein as illegal. Notwithstanding such illegality, the things seized under such warrant, such asstock of "masiao" tickets; "masiao" issue tickets; bet money; control pad or "masiao" numbers; stamping pad with rubberstamp marked Ormoc City Jai-Alai," cannot be returned as sought by petitioner. No costs.

SO ORDERED.



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G.R. Nos. 140546-47 January 20, 2003

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,vs.MODESTO TEE a.k.a. ESTOY TEE, accused-appellant.

QUISUMBING, J .:

For automatic review is the consolidated judgment1 of the Regional Trial Court (RTC) of Baguio City, Branch 6, datedSeptember 17, 1999, in Criminal Cases Nos. 15800-R and 15822-R, involving violations of Section 8, Article II, of theDangerous Drugs Law.2 Since appellant was acquitted in the second case, we focus on the first case, where appellanhas been found guilty and sentenced to death and fined one million pesos.

The decretal portion of the trial court’s decision reads:

WHEREFORE, judgment is hereby rendered, as follows:

1. In Crim. Case No. 15800-R, the Court finds the accused Modesto Tee guilty beyond reasonable doubt of theoffense of illegal possession of marijuana of about 591.81 kilos in violation of Section 8, Article II of RA 6425 as

amended by Section 13 of RA 7659 as charged in the Information, seized by virtue of a search warrant andsentences him to the supreme penalty of death and to pay a fine of 1 million pesos without subsidiaryimprisonment in case of insolvency.

The 591.81 kilos of marijuana contained in 26 boxes and one yellow sack (Exhibits U-1 to U-27) are orderedforfeited in favor of the State to be destroyed immediately in accordance with law.

2. In Crim. Case No. 15822-R, the Court finds that the prosecution failed to prove the guilt of accused ModestoTee beyond reasonable doubt and hereby acquits him of the charge of illegal possession of marijuana in violationof Section 8, Art. 2 of RA 6425 as amended by Section 13 of RA 7659 as charged in the Information since themarijuana confiscated have to be excluded in evidence as a product of unreasonable search and seizure.

The 336.93 kilos of marijuana contained in 13 sacks and four boxes (Exh. B to S and their component parts)

although excluded in evidence as the product(s) of unreasonable search and seizure, are nevertheless orderedforfeited in favor of the State to be destroyed immediately in accordance with law considering that they areprohibited articles.

The City Jail Warden is, therefore, directed to release the accused Modesto Tee in connection with Crim. CaseNo. 15822-R unless held on other charges.

COST(S) DE OFFICIO.

SO ORDERED.3

Appellant is a Chinese national in his forties, a businessman, and a resident of Baguio City. A raid conducted by

operatives of the National Bureau of Investigation (NBI) and Philippine National Police Narcotics Command (PNPNARCOM) at premises allegedly leased by appellant and at his residence yielded huge quantities of marijuana.

On July 20, 1998, appellant moved to quash the search warrant on the ground that it was too general and that the NBIhad not complied with the requirements for the issuance of a valid search warrant. The pendency of said motion, however,did not stop the filing of the appropriate charges against appellant. In an information dated July 24, 1998, docketed asCriminal Case No. 15800-R, the City Prosecutor of Baguio City charged Modesto Tee, alias "Estoy Tee," with illegalpossession of marijuana, allegedly committed as follows:

That on or about the 1st day of July, 1998 in the City of Baguio, Philippines, and within the jurisdiction of thisHonorable Court, the above-named accused, did then and there willfully, unlawfully, feloniously and knowinglyhave in his possession the following, to wit:



52

1. Ninety-two (92) bricks of dried flowering tops separately contained in four (4) boxes; and

2. One hundred fifty-eight (158) bricks, twenty-one (21) blocks, and twenty-three (23) bags of dried flowering topsseparately contained in thirteen (13) sacks, with a total weight of 336.93 kilograms; and

3 Six hundred two (602) bricks of dried flowering tops separately contained in twenty-six (boxes) and a yellowsack, weighing 591.81 kilograms,

all having a grand total weight of 928.74 kilograms, a prohibited drug, without the authority of law to possess, inviolation of the above-cited provision of law.

CONTRARY TO LAW.4

On August 7, 1998, the prosecution moved to "amend" the foregoing charge sheet "considering that subject marijuanawere seized in two (2) different places."5

As a result, the information in Criminal Case No. 15800-R was amended to read as follows:

That on or about the 1st day of July, 1998, in the City of Baguio, Philippines, and within the jurisdiction of this

Honorable Court, the above-named accused, did then and there willfully, unlawfully, feloniously and knowinglyhave in his possession the following, to wit:

- Six hundred two (602) bricks of dried flowering tops separately contained in twenty-six (26) boxes and a yellowsack, weighing 591.81 kilograms

a prohibited drug, without the authority of law to possess, in violation of the above-cited provision of law.

CONTRARY TO LAW.6

A separate amended information docketed as Criminal Case No. 15822-R was likewise filed, the accusatory portion owhich reads:

That on or about the 1st day of July, 1998 in the City of Baguio, Philippines, and within the jurisdiction of thisHonorable Court, the above-named accused, did then and there willfully, unlawfully, feloniously and knowinglyhave in his possession the following, to wit:

1. Ninety-two (92) bricks of dried flowering tops separately contained in four (4) boxes; and

2. hundred fifty-eight (158) bricks, twenty-one (21) blocks, and twenty-three (23) bags of dried floweringtops separately contained in thirteen (13) sacks, with a total weight of 336.93 kilograms;

a prohibited drug, without the authority of law to possess, in violation of the above-cited provision of law.

CONTRARY TO LAW.7

On September 4, 1998, the trial court denied the motion to quash the search warrant and ordered appellant’s arraignment

When arraigned in Criminal Cases Nos. 15800-R and 15822-R, appellant refused to enter a plea. The trial court entered aplea of not guilty for him.8 Trial on the merits then ensued.

The facts of this case, as gleaned from the records, are as follows:

Prosecution witness Danilo Abratique, a Baguio-based taxi driver, and the appellant Modesto Tee are well acquaintedwith each other, since Abratique’s wife is the sister of Tee’s sister -in-law.9



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Sometime in late June 1998, appellant asked Abratique to find him a place for the storage of smuggledcigarettes.10 Abratique brought appellant to his friend, Albert Ballesteros, who had a house for rent in Bakakeng, BaguioCity. After negotiating the terms and conditions, Ballesteros agreed to rent out his place to appellant. Appellant thenbrought several boxes of purported "blue seal" cigarettes to the leased premises.

Shortly thereafter, however, Ballesteros learned that the boxes stored in his place were not "blue seal" cigarettes butmarijuana. Fearful of being involved, Ballesteros informed Abratique. Both later prevailed upon appellant to remove them

from the premises.11

Appellant then hired Abratique’s taxi and transported the boxes of cannabis from the Ballesteros place to appellant’sresidence at Km. 6, Dontogan, Green Valley, Sto. Tomas, Baguio City. 12

On June 30, 1998, appellant hired Abratique to drive him to La Trinidad, Benguet on the pretext of buying and transportingstrawberries. Upon reaching La Trinidad, however, appellant directed Abratique to proceed to Sablan, Benguet, whereappellant proceeded to load several sacks of marijuana in Abratique’s taxi. He then asked Abratique to find him a placewhere he could store the contraband.13

Abratique brought appellant to his grandmother’s house at No. 27 Dr. Cariño St., QM Subdivision, Baguio City, which wasbeing managed by Abratique’s aunt, Nazarea Abreau. Nazarea agreed to rent a room to appellant. Abratique andappellant unloaded and stored there the sacks of marijuana brought from Sablan.14 Abratique was aware that they were

transporting marijuana as some of the articles in the sacks became exposed in the process of loading. 15

Eventually, Abratique and Nazarea were bothered by the nature of the goods stored in the rented room. She confided toher daughter, Alice Abreau Fianza, about their predicament. As Alice Fianza’s brother -in-law, Edwin Fianza, was an NBagent, Alice and Abratique phoned him and disclosed what had transpired.16

On the morning of July 1, 1998, alerted by information that appellant would retrieve the sacks of prohibited drugs that day,Edwin Fianza and other NBI operatives conducted a stake out at No. 27, Dr. Cariño St. While the NBI agents wereconducting their surveillance, they noticed that several PNP NARCOM personnel were also watching the place. 17 The NBthen learned that the PNP NARCOM had received a tip from one of their informers regarding the presence of a hugeamount of drugs in that place. The NBI and PNP NARCOM agreed to have a joint operation.

As the day wore on and appellant did not show up, the NBI agents became apprehensive that the whole operation couldbe jeopardized. They sought the permission of Nazarea Abreau to enter the room rented by appellant. She acceded andallowed them entry. The NBI team then searched the rented premises and found four (4) boxes and thirteen (13) sacks ofmarijuana, totaling 336.93 kilograms.18

Later that evening, NBI Special Agent Darwin Lising, with Abratique as his witness, applied for a search warrant from RTCJudge Antonio Reyes at his residence.19 Judge Reyes ordered the NBI agents to fetch the Branch Clerk of Court, AttyDelilah Muñoz, so the proceedings could be properly recorded. After Atty. Muñoz arrived, Judge Reyes questioned Lisingand Abratique. Thereafter, the judge issued a warrant directing the NBI to search appellant’s residence at Km. 6,Dontogan, Green Valley, Baguio City for marijuana.20

The NBI operatives, with some PNP NARCOM personnel in tow, proceeded to appellant’s residence where they servedthe warrant upon appellant himself.21 The search was witnessed by appellant, members of his family, barangay officials

and members of the media.22

Photographs were taken during the actual search.23

The law enforcers found 26 boxes anda sack of dried marijuana24 in the water tank, garage, and storeroom of appellant’s residence.25 The total weight of thehaul was 591.81 kilograms.26 Appellant was arrested for illegal possession of marijuana.

The seized items were then submitted to the NBI laboratory for testing. NBI Forensic Chemist Maria Carina Madrigaconducted the tests. Detailed microscopic and chromatographic examinations of the items taken from appellant’s rentedroom at No. 27, Dr. Cariño St., as well as those from his residence at Green Valley, showed these to be marijuana. 27

In his defense, appellant contended that the physical evidence of the prosecution was illegally obtained, being theproducts of an unlawful search, hence inadmissible. Appellant insisted that the search warrant was too general and theprocess by which said warrant was acquired did not satisfy the constitutional requirements for the issuance of a valid



54

search warrant. Moreover, Abratique’s testimony, which was heavily relied upon by the judge who issued the warrant, washearsay.

In Criminal Case No. 15822-R, the trial court agreed with appellant that the taking of the 336.93 kilograms of marijuanawas the result of an illegal search and hence, inadmissible in evidence against appellant. Appellant was accordinglyacquitted of the charge. However, the trial court found that the prosecution’s evidence was more than ample to proveappellant’s guilt in Criminal Case No. 15800-R and as earlier stated, duly convicted him of illegal possession of marijuana

and sentenced him to death.

Hence, this automatic review.

Before us, appellant submits that the trial court erred in:

1…UPHOLDING THE LEGALITY OF THE SEARCH WARRANT DESPITE LACK OF COMPLIANCE OF (sicSEVERAL REQUIREMENTS BEFORE IT SHOULD HAVE BEEN ISSUED AND IT BEING A GENERALWARRANT;

2….GRAVELY ABUSED ITS DISCRETION IN REOPENING THE CASE AND ALLOWING ABRITIQUE TOTESTIFY AGAINST APPELLANT;

3…GIVING CREDENCE TO THE TESTIMONY OF ABRITIQUE;

4. NOT ACQUITTING THE ACCUSED IN BOTH CASES AND SENTENCING HIM TO DEATH DESPITE THEILLEGALLY OBTAINED EVIDENCE AS FOUND IN THE FIRST CASE.28

We find that the pertinent issues for resolution concern the following: (1) the validity of the search conducted at theappellant’s residence; (2) the alleged prejudice caused by the reopening of the case and absences of the prosecutionwitness, on appellant’s right to speedy trial; (3) the sufficiency of the prosecution’s evid ence to sustain a finding of guilwith moral certainty; and (4) the propriety of the penalty imposed.

1. On the Validity of the Search Warrant; Its Obtention and Execution

Appellant initially contends that the warrant, which directed the peace officers to search for and seize "an undeterminedamount of marijuana," was too general and hence, void for vagueness. He insists that Abratique could already estimatethe amount of marijuana supposed to be found at appellant’s residence since Abratique helped to tra nsport the same.

For the appellee, the Office of the Solicitor General (OSG) counters that a search warrant is issued if a judge findsprobable cause that the place to be searched contains prohibited drugs, and not that he believes the place contains aspecific amount of it. The OSG points out that, as the trial court observed, it is impossible beforehand to determine theexact amount of prohibited drugs that a person has on himself.

Appellant avers that the phrase "an undetermined amount of marijuana" as used in the search warrant fails to satisfy therequirement of Article III, Section 229 of the Constitution that the things to be seized must be particularly described. Appellant’s contention, in our view, has no leg to stand on. The constitutional requirement of reasonable particularity odescription of the things to be seized is primarily meant to enable the law enforcers serving the warrant to: (1) readilyidentify the properties to be seized and thus prevent them from seizing the wrong items;30 and (2) leave said peaceofficers with no discretion regarding the articles to be seized and thus prevent unreasonable searches andseizures.31 What the Constitution seeks to avoid are search warrants of broad or general characterization or sweepingdescriptions, which will authorize police officers to undertake a fishing expedition to seize and confiscate any and all kindsof evidence or articles relating to an offense.32However, it is not required that technical precision of description berequired,33 particularly, where by the nature of the goods to be seized, their description must be rather general, since therequirement of a technical description would mean that no warrant could issue. 34

Thus, it has been held that term "narcotics paraphernalia" is not so wanting in particularity as to create a generalwarrant.35 Nor is the description "any and all narcotics" and "all implements, paraphernalia, articles, papers and recordspertaining to" the use, possession, or sale of narcotics or dangerous drugs so broad as to be unconstitutional.36 A searchwarrant commanding peace officers to seize "a quantity of loose heroin" has been held sufficiently particular. 37



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Tested against the foregoing precedents, the description "an undetermined amount of marijuana" must be held to satisfythe requirement for particularity in a search warrant. Noteworthy, what is to be seized in the instant case is property of aspecified character, i.e., marijuana, an illicit drug. By reason of its character and the circumstances under which it wouldbe found, said article is illegal. A further description would be unnecessary and ordinarily impossible, except as to suchcharacter, the place, and the circumstances.38 Thus, this Court has held that the description "illegally in possession ofundetermined quantity/amount of dried marijuana leaves and Methamphetamine Hydrochloride (Shabu) and sets ofparaphernalia" particularizes the things to be seized.39

The search warrant in the present case, given its nearly similar wording, "undetermined amount of marijuana or Indianhemp," in our view, has satisfied the Constitution’s requirements on particularity of description. The description therein is(1) as specific as the circumstances will ordinarily allow; (2) expresses a conclusion of fact – not of law – by which thepeace officers may be guided in making the search and seizure; and (3) limits the things to be seized to those which beardirect relation to the offense for which the warrant is being issued. 40 Said warrant imposes a meaningful restriction uponthe objects to be seized by the officers serving the warrant. Thus, it prevents exploratory searches, which might beviolative of the Bill of Rights.

Appellant next assails the warrant for merely stating that he should be searched, as he could be guilty of violation oRepublic Act No. 6425. Appellant claims that this is a sweeping statement as said statute lists a number of offenses withrespect to illegal drugs. Hence, he contends, said warrant is a general warrant and is thus unconstitutional.

For the appellee, the OSG points out that the warrant clearly states that appellant has in his possession and controlmarijuana or Indian hemp, in violation of Section 8 of Republic Act No. 6425.

We have carefully scrutinized Search Warrant No. 415 (7-98),41 and we find that it is captioned "For Violation of R.A.6425, as amended."42 It is clearly stated in the body of the warrant that "there is probable cause to believe that a case forviolation of R.A. 6425, as amended, otherwise known as the Dangerous Drugs Act of 1972, as further amended by R.A7659 has been and is being committed by one MODESTO TEE a.k.a. ESTOY TEE of Km. 6, Dontogan Bgy., GreenValley, Sto. Tomas, Baguio City by having in his possession and control an UNDETERMINED AMOUNT OF MARIJUANAor INDIAN HEMP in violation of the aforementioned law."43 In an earlier case, we held that though the specific section ofthe Dangerous Drugs Law is not pinpointed, "there is no question at all of the specific offense alleged to have beencommitted as a basis for the finding of probable cause." 44 Appellant’s averment is, therefore, baseless. Search WarrantNo. 415 (7-98) appears clearly issued for one offense, namely, illegal possession of marijuana.

Appellant next faults the Judge who issued Search Warrant No. 415 (7-98) for his failure to exhaustively examine theapplicant and his witness. Appellant points out that said magistrate should not have swallowed all of Abratique’sstatements – – hook, line, and sinker. He points out that since Abratique consented to assist in the transport of themarijuana, the examining judge should have elicited from Abratique his participation in the crime and his motive forsquealing on appellant. Appellant further points out that the evidence of the NBI operative who applied for the warrant ismerely hearsay and should not have been given credit at all by Judge Reyes.

Again, the lack of factual basis for appellant’s contention is apparent. The OSG points out that Abratique personallyassisted appellant in loading and transporting the marijuana to the latter’s house and to appellant’s rented room at No. 27Dr. Cariño St., Baguio City. Definitely, this indicates personal knowledge on Abratique’s part. Law enforcers cannotthemselves be eyewitnesses to every crime; they are allowed to present witnesses before an examining judge. In thiscase, witness Abratique personally saw and handled the marijuana. Hence, the NBI did not rely on hearsay information inapplying for a search warrant but on personal knowledge of the witness, Abratique.

Before a valid search warrant is issued, both the Constitution45 and the 2000 Revised Rules of CriminaProcedure46 require that the judge must personally examine the complainant and his witnesses under oath or affirmation.The personal examination must not be merely routinary or pro forma, but must be probing and exhaustive.47 In the instancase, it is not disputed that Judge Antonio Reyes personally examined NBI Special Investigator III Darwin A. Lising, theapplicant for the search warrant as well as his witness, Danilo G. Abratique. Notes of the proceedings were taken by AttyDelilah Muñoz, Clerk of Court, RTC of Baguio City, Branch 61, whom Judge Reyes had ordered to be summoned. In theletter of transmittal of the Clerk of Court of the RTC of Baguio City, Branch 61 to Branch 6 of said court, mention is madeof "notes" at "pages 7-11."48 We have thoroughly perused the records of Search Warrant No. 415 (7-98) and nowhere findsaid "notes." The depositions of Lising and Abratique were not attached to Search Warrant No. 415 (7-98) as required bythe Rules of Court. We must stress, however, that the purpose of the Rules in requiring depositions to be taken is tosatisfy the examining magistrate as to the existence of probable cause.49 The Bill of Rights does not make it an imperative



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necessity that depositions be attached to the records of an application for a search warrant. Hence, said omission is notnecessarily fatal, for as long as there is evidence on the record showing what testimony was presented. 50In the testimonyof witness Abratique, Judge Reyes required Abratique to confirm the contents of his affidavit; 51there were instances whenJudge Reyes questioned him extensively.52 It is presumed that a judicial function has been regularly performed, 53 absena showing to the contrary. A magistrate’s determination of probable cause for the issuance of a search warrant is paidgreat deference by a reviewing court,54 as long as there was substantial basis for that determination. 55 Substantial basismeans that the questions of the examining judge brought out such facts and circumstances as would lead a reasonably

discreet and prudent man to believe that an offense has been committed, and the objects in connection with the offensesought to be seized are in the place sought to be searched.

On record, appellant never raised the want of adequate depositions to support Warrant No. 415 (7-98) in his motion toquash before the trial court. Instead, his motion contained vague generalities that Judge Reyes failed to ask searchingquestions of the applicant and his witness. Belatedly, however, he now claims that Judge Reyes perfunctorily examinedsaid witness.56 But it is settled that when a motion to quash a warrant is filed, all grounds and objections then available,existent or known, should be raised in the original or subsequent proceedings for the quashal of the warrant, otherwisethey are deemed waived.57

In this case, NBI Special Investigator Lising’s knowledge of the illicit drugs stored in appellant’s house was in deedhearsay. But he had a witness, Danilo Abratique, who had personal knowledge about said drugs and their particularlocation. Abratique’s statements to the NBI and to Judge Reyes contained credible and reliable details. As the NBI’s

witness, Abratique was a person on whose statements Judge Reyes could rely. His detailed description of appellant’sactivities with respect to the seized drugs was substantial. In relying on witness Abratique, Judge Reyes was notdepending on casual rumor circulating in the underworld, but on personal knowledge Abratique possessed.

In Alvarez vs. Court of First Instance of Tayabas, 64 Phil. 33, 44 (1937), we held that:

The true test of sufficiency of a deposition or affidavit to warrant issuance of a search warrant is whether it hasbeen drawn in such a manner that perjury could be charged thereon and affiant be held liable for damagescaused.58

Appellant argues that the address indicated in the search warrant did not clearly indicate the place to be searched. TheOSG points out that the address stated in the warrant is as specific as can be. The NBI even submitted a detailed sketchof the premises prepared by Abratique, thus ensuring that there would be no mistake.

A description of the place to be searched is sufficient if the officer serving the warrant can, with reasonable effortascertain and identify the place intended59 and distinguish it from other places in the community.60 A designation odescription that points out the place to be searched to the exclusion of all others, and on inquiry unerringly leads thepeace officers to it, satisfies the constitutional requirement of definiteness.

Appellant finally harps on the use of unnecessary force during the execution of the search warrant. Appellant failshowever, to point to any evidentiary matter in the record to support his contention. Defense witness Cipriana Tee,appellant’s mother, testified on the search conducted but she said nothing that indicated the use of force on the part of theNBI operatives who conducted the search and seizure.61 What the record discloses is that the warrant was served onappellant,62 who was given time to read it,63 and the search was witnessed by the barangay officials, police operativesmembers of the media, and appellant’s kith and kin.64 No breakage or other damage to the place searched is shown. Noinjuries sustained by appellant, or any witness, appears on record. The execution of the warrant, in our view, has beenorderly and peaceably performed.

2. On The Alleged Violation of Appellant ’s Substantive Rights

Appellant insists that the prosecution’s unjustified and willful delay in presenting witness Abratique unduly delayed theresolution of his case. He points out that a total of eight (8) scheduled hearings had to be reset due to the failure or willfulrefusal of Abratique to testify against him. Appellant insists that said lapse on the prosecution’s part violated SupremeCourt Circular No. 38-98.65 Appellant now alleges that the prosecution deliberately resorted to delaying the case to causehim untold miseries.

For the appellee, the OSG points out that the two-month delay in the trial is not such a great length of time as to amountto a violation of appellant’s right to a speedy trial. A trial is always subject to reasonable delays or p ostponements, bu



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absent any showing that these delays are capricious and oppressive, the State should not be deprived of a reasonableopportunity to prosecute the criminal action.

On record, the trial court found that prosecution witness Danilo G. Abratique failed to appear in no less than eighteen (18hearings, namely those set for February 1, 2, 3, 4, 8, 9, 10, and 24; March 9, 15, 22, and 23; April 6, 7, 8, 16, and 19, all in1999.66 No less than four (4) warrants of arrest were issued against him to compel him to testify.67 The NBI agent whosupposedly had him in custody was found guilty of contempt of court for failing to produce Abratique at said hearings and

sanctioned.68 The prosecution had to write the NBI Regional Director in Baguio City and NBI Director in Manila regardingthe failure of the Bureau’s agents to bring Abratique to court. 69Nothing on record discloses the reason for Abratique’saforecited absences. On the scheduled hearing of June 7, 1999, he was again absent thus causing the trial court to againorder his arrest for the fifth time.70 He also failed to show up at the hearing of June 8, 1999.71

Appellant now stresses that the failure of Abratique to appear and testify on twenty (20) hearing dates violated appellant’sconstitutional72 and statutory right to a speedy trial.

A speedy trial means a trial conducted according to the law of criminal procedure and the rules and regulations, free fromvexatious, capricious, and oppressive delays.73 In Conde v. Rivera and Unson, 45 Phil. 650, 652 (1924), the Court heldthat "where a prosecuting officer, without good cause, secures postponements of the trial of a defendant against hisprotest beyond a reasonable period of time, as in this instance, for more than a year, the accused is entitled to relief by aproceeding in mandamus to compel a dismissal of the information, or if he be restrained of his liberty, by habeas corpus to

obtain his freedom."

The concept of speedy trial is necessarily relative. A determination as to whether the right has been violated involves theweighing of several factors such as the length of the delay, the reason for the delay, the conduct of the prosecution andthe accused, and the efforts exerted by the defendant to assert his right, as well as the prejudice and damage caused tothe accused.74

The Speedy Trial Act of 1998, provides that the trial period for criminal cases in general shall be one hundred eighty (180)days.75 However, in determining the right of an accused to speedy trial, courts should do more than a mathematicalcomputation of the number of postponements of the scheduled hearings of the case. 76 The right to a speedy trial isdeemed violated only when: (1) the proceedings are attended by vexatious, capricious, and oppressive delays; 77 or (2when unjustified postponements are asked for and secured;78 or (3) when without cause or justifiable motive a long periodof time is allowed to elapse without the party having his case tried. 79

In the present case, although the absences of prosecution witness Abratique totaled twenty (20) hearing days, there is noshowing whatsoever that prosecution capriciously caused Abratique’s absences so as to vex or oppress appellant anddeny him his rights. On record, after Abratique repeatedly failed to show up for the taking of his testimony, the prosecutionwent to the extent of praying that the trial court order the arrest of Abratique to compel his attendance at trial. Theprosecution likewise tried to get the NBI to produce Abratique as the latter was in the Bureau’s custody , but to no availEventually, the trial court ordered the prosecution to waive its right to present Abratique and rest its case on the evidencealready offered.80

Nor do we find a delay of twenty (20) hearing days to be an unreasonable length of time. Delay of less than two monthshas been found, in fact, to be not an unreasonably lengthy period of time. 81

Moreover, nothing on record shows that appellant Modesto Tee objected to the inability of the prosecution to produce itswitness. Under the Rules, appellant could have moved the trial court to require that witness Abratique post bail to ensurethat the latter would testify when required.82 Appellant could have moved to have Abratique found in contempt and dulysanctioned. Appellant did neither. It is a bit too late in the day for appellant to invoke now his right to speedy trial.

No persuasive reason supports appellant’s claim that his constitutional right to speedy trial was violated. One must takeinto account that a trial is always subject to postponements and other causes of delay. But in the absence of a showingthat delays were unreasonable and capricious, the State should not be deprived of a reasonable opportunity ofprosecuting an accused.83

Appellant next contends that the trial court gravely abused its discretion, and exhibited partiality, when it allowed thereopening of the case after the prosecution had failed to present Abratique on several occasions and had been directed to



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rest its case. Appellant stresses that the lower court’s order to reopen the case to receive Abratique’s further testimony isan indication that the trial court favored the prosecution and unduly prejudiced appellant.

On appellee’s behalf, the Solicitor General points out that the trial court’s order was in the interest of substantial justiceand hence, cannot be termed as an abuse of discretion. The OSG points out that the prosecution had not formally restedits case and had yet to present its formal offer of evidence, hence, the submission of additional testimony by the samewitness cannot be prejudicial to the accused, it being but the mere continuation of an uncompleted testimony

Furthermore, appellant did not properly oppose the prosecution’s motion to reopen the case.

At the time Criminal Cases Nos. 15800-R and 15822-R were being tried, the 1985 Rules of Criminal Procedure were ineffect. There was no specific provision at that time governing motions to reopen. 84 Nonetheless, long and establishedusage has led to the recognition and acceptance of a motion to reopen. In view of the absence of a specific proceduralrule, the only controlling guideline governing a motion to reopen was the paramount interests of justice. As a rule, thematter of reopening of a case for reception of further evidence after either prosecution or defense has rested its case iswithin the discretion of the trial court.85 However, a concession to a reopening must not prejudice the accused or deny himthe opportunity to introduce counter evidence.86

Strictly speaking, however, there was no reopening of the cases in the proceedings below. A motion to reopen mayproperly be presented only after either or both parties have formally offered and closed their evidence, but before judgment.87 In the instant case, the records show that on April 19, 1999, the prosecution was directed to close its

evidence and given 15 days to make its formal offer of evidence. 88 This order apparently arose from the manifestation othe prosecution on April 16, 1999 that should they fail to produce witness Abratique on the next scheduled hearing theprosecution would rest its case.89 On April 19, 1999, which was the next scheduled hearing after April 16, 1999, Abratiquewas absent notwithstanding notices, orders, and warrants of arrest. However, on April 27, 1999, or before the prosecutionhad formally offered its evidence, Abratique was brought to the trial court by the NBI. In its order of said date, the trialcourt pointed out that the prosecution could move to "reopen" the case for the taking of Abratique’s testimony.90 On May7, 1999, the prosecution so moved, stressing that it had not yet formally offered its evidence and that the substantial rightsof the accused would not be prejudiced inasmuch as the latter had yet to present his evidence. Appellant filed noopposition to the motion. The trial court granted the motion six days later. Plainly, there was nothing to reopen, as theprosecution had not formally rested its case. Moreover, the taking of Abratique’s testimony was not for the purpose ofpresenting additional evidence, but more properly for the completion of his unfinished testimony. In U.S. vs. Base,91 weheld that a trial court is not in error, if it opts to reopen the proceedings of a case, even after both sides had rested and thecase submitted for decision, by the calling of additional witnesses or recalling of witnesses so as to satisfy the judge’s

mind with reference to particular facts involved in the case. A judge cannot be faulted should he require a material witnessto complete his testimony, which is what happened in this case. It is but proper that the judge’s mind be satisfied on anyand all questions presented during the trial, in order to serve the cause of justice.

Appellant’s claim that the trial court’s concession to "reopen" the case unduly prejudiced him is not well taken. We notethat appellant had every opportunity to present his evidence to support his case or to refute the prosecution’s evidencepoint-by-point, after the prosecution had rested its case. In short, appellant was never deprived of his day in court. A dayin court is the touchstone of the right to due process in criminal justice. 92 Thus, we are unable to hold that a grave abuseof discretion was committed by the trial court when it ordered the so-called "reopening" in order to complete the testimonyof a prosecution witness.

3. On the Sufficiency of the Prosecution’s Evidence

In bidding for acquittal, appellant assails the credibility of Abratique as a witness. Appellant insists that Abratique’stestimony is profuse with lies, contrary to human nature, hence incredible. According to appellant, Abratique was evasivefrom the outset with respect to certain questions of the trial court. He adds that it appeared the court entertained inparticular the suspicion that witness Abratique had conspired with appellant in committing the crime charged. Appellantquestions Abratique’s motive in informing the NBI about his activities related to the marijuana taking, transfer, andwarehousing.

The OSG contends that Abratique’s testimony, taken as a whole, is credible. It points out that Abratique testified in astraightforward manner as to his knowledge of the huge cache of prohibited drugs stashed by appellant in two differentplaces. His testimony, said the OSG, when fused with the physical evidence consisting of 591.81 kilograms of marijuanafound by law enforcers at appellant’s residence, inexorably leads to the inculpation of appellant.



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It is the bounden duty of the courts to test the prosecution evidence rigorously, so that no innocent person is made tosuffer the unusually severe penalties meted out for drug offenses.93 Though we scrutinized minutely the testimony of Abratique, we find no cogent reason to disbelieve him. From his account, Abratique might appear aware treading the thinline between innocence and feeling guilty, with certain portions of his story tending to be self-exculpatory. However, hiswhole testimony could not be discredited. The established rule is that testimony of a witness may be believed in part anddisbelieved in other parts, depending on the corroborative evidence and the probabilities and improbabilities of the case.But it is accepted, as a matter of common sense, that if certain parts of a witness’ testimony are found true, his testimony

cannot be disregarded entirely.94

Abratique testified in open court that appellant rented the taxicab he was driving, and he helped appellant transport hugeamounts of marijuana to appellant’s rented room at No. 27 Dr. Cariño St., Baguio City and to appellant’s residence at Km6, Dontogan, Green Valley, Sto. Tomas, Baguio City. He also declared on the witness stand that out of fear of beinginvolved, he decided to divulge his knowledge of appellant’s possession of large caches of marijuana to the NBI. Whenthe places referred to by Abratique were searched by the authorities, marijuana in staggering quantities was found andseized by the law enforcers. Stated plainly, the physical evidence in this case corroborated Abratique’s testimony onmaterial points.

Appellant imputes questionable motives to Abratique in an effort to discredit him. He demands that Abratique shouldlikewise be prosecuted. However, by no means is the possible guilt of Abratique a tenable defense for appellant. Norwould Abratique’s prosecution mean appellant’s absolution.

In a prosecution for illegal possession of dangerous drugs, the following facts must be proven with moral certainty: (1) thatthe accused is in possession of the object identified as prohibited or regulated drug; (2) that such possession is notauthorized by law; and (3) that the accused freely and consciously possessed the said drug.95

We find the foregoing elements proven in Criminal Case No. 15800-R beyond reasonable doubt.

In said case, the testimony of Abratique and the recovery of 591.81 kilograms of marijuana from appellant’s residenceserved to prove appellant’s possession of a prohibited drug. Tests conducted by the NBI forensic chemist proved theseized articles to be marijuana. These articles were seized pursuant to a valid search warrant and hence, fully admissiblein evidence.

In People v. de los Reyes, 239 SCRA 439 (1994), we held that the Dangerous Drugs Act applies generally to all personsand proscribes the sale of dangerous drugs by any person, and no person is authorized to sell such drugs. Said doctrineis equally applicable with respect to possession of prohibited drugs. Republic Act No. 6425, which penalizes thepossession of prohibited drugs, applies equally to all persons in this jurisdiction and no person is authorized to possesssaid articles, without authority of law.

Anent the third element, we have held that to warrant conviction, possession of illegal drugs must be with knowledge ofthe accused or that animus possidendi existed together with the possession or control of said articles.96 Nonetheless, thisdictum must be read in consonance with our ruling that possession of a prohibited drug per se constitutes primafacie evidence of knowledge or animus possidendi sufficient to convict an accused absent a satisfactory explanation osuch possession.97 In effect, the onus probandi is shifted to accused to explain the absence of knowledge or animus possidendi 98 in this situation.

Appellant Modesto Tee opted not to testify in his defense. Instead, he presented his mother as his lone witness, whotestified on matters totally irrelevant to his case. We can only conclude that, failing to discharge the burden of theevidence on the possession of prohibited drug, appellant’s guilt in Criminal Case No. 15800 -R was established beyondreasonable doubt.

4. On The Proper Penalty

Under Republic Act No. 6425 as amended by Republic Act No. 7659, the penalty of reclusion perpetua to death and a fineranging from five hundred thousand pesos (P500,000.00) to ten million pesos (P10,000,000.00) 99 shall be imposed if thequantity of marijuana involved in a conviction for possession of marijuana or Indian hemp shall be 750 grams or more. 100



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In the present case, the quantity of marijuana involved has been shown by the prosecution to be far in excess of 750grams, as stressed by the trial court:

The volume is rather staggering. It is almost one whole house or one whole room. In fact, when they were firstbrought to the court, it took hours to load them on the truck and hours also to unload them prompting the court todirect that the boxes and sack of marijuana be instead kept at the NBI office in Baguio. And the identification ofsaid marijuana during the trial was made in the NBI premises itself by the witnesses since it was physically

cumbersome and inconvenient to keep bringing them to the court during every trial. 101

In sentencing appellant to death, the trial court noted not only the huge quantity of marijuana bales involved, but also "theacts of accused of hiding them in different places…and transferring them from place to place and making them appear asboxes of cigarettes to avoid and evade apprehension and detection." They showed his being a big supplier, said the triacourt, [whose] criminal perversity and craft that "deserve the supreme penalty of death." 102

We are unable to agree, however, with the penalty imposed by the trial court. The legislature never intended that wherethe quantity involved exceeds those stated in Section 20 of Republic Act No. 6425 the maximum penalty of death shallautomatically be imposed.103 The statute prescribes two indivisible penalties: reclusion perpetua and death. Hence, thepenalty to be imposed must conform with Article 63104 of the Revised Penal Code. As already held, the death penalty lawRepublic Act No. 7659 did not amend Article 63 of the Revised Penal Code. 105 The rules in Article 63 apply although theprohibited drugs involved are in excess of the quantities provided for in Section 20 of Republic Act No. 6425. 106 Thus

finding neither mitigating nor aggravating circumstances in the present case, appellant’s possession of 591.81 kilogramsof marijuana in Criminal Case No. 15800-R, does not merit capital punishment but only the lesser penalty of reclusion perpetua.

The trial court imposed a fine on appellant in the sum of One Million Pesos (P1,000,000.00), without subsidiaryimprisonment in case of insolvency. The imposition of a fine is mandatory in cases of conviction of possession of illegaldrugs. This being within the limits allowed by the law, the amount of the fine must be sustained. All these sanctions mighnot remedy all the havoc wrought by prohibited drugs on the moral fiber of our society, especially the youth. 107 But thesepenalties should warn peddlers of prohibited drugs that they cannot ply their trade in our streets with impunity.

WHEREFORE, the decision of the Regional Trial Court of Baguio City, Branch 6, in Criminal Case No. 15800-Rconvicting appellant MODESTO TEE alias "ESTOY" TEE of violation of Section 8 of Republic Act No. 6425, as amended,is AFFIRMED with the MODIFICATION that appellant is hereby sentenced to suffer the penalty of reclusion perpetua. The

fine of ONE MILLION (P1,000,000.00) PESOS imposed on him is sustained. Appellant is likewise directed to pay thecosts of suit.

SO ORDERED.



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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.

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 ofMasiu, 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 forproper disposition. 1

Their plea is essentially grounded on the claim that the warrant for their arrest was issued by the respondent Judgewithout a proper preliminary investigation. 2 The Solicitor General agrees and recommends that their petition be grantedand 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 andtwo others wounded. What in fact transpired is still unclear. According to one version, armed men had attacked aresidence in Pantao, Masiu, with both attackers and defenders suffering casualties. 4 Another version has it that a groupthat 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 Theletter adverted to the possibility of innocent persons being implicated by the parties involved on both sides — none owhom was, however, identified — and promised that supporting affidavits would shortly be filed. Immediately theProvincial Fiscal addressed a "1st indorsement" to the respondent Judge, transmitting Atty. Batuampar's letter andrequesting that "all cases that may be filed relative .. (to the incident) that happened in the afternoon of July 27, 1985," beforwarded 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, whena criminal complaint for multiple murder was filed before him by P.C. Sgt. Jose L. Laruan, which was docketed as CaseNo. 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 thefourteen (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'sinitial investigation had been "hasty and manifestly haphazard" with "no searching questions" having beenpropounded. 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 caseat bar failed to conduct the investigation in accordance with the procedure prescribed in Section 3, Rule 112 of the Rulesof Court ; 13 and that that failure constituted a denial to petitioners of due process which nullified the proceedings leading



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to the issuance of the warrant for the petitioners' arrest. 14 It is further contended that August 10, 1985 was a Saturdayduring which "Municipal Trial Courts are open from 8:00 a.m. to 1:00 p.m. only, ..." and "... it would hardly have beenpossible for respondent Judge to determine the existence of probable cause against sixty- four (64) persons whoseparticipations were of varying nature and degree in a matter of hours and issue the warrant of arrest in the sameday;" 15 and that there was undue haste and an omission to ask searching questions by the Judge who relied "mainly onthe supporting affidavits which were obviously prepared already when presented to him by an enlisted PC personnel asinvestigator." 16

The petitioners further assert that the respondent Judge conducted the preliminary investigation of the charges "... in totaldisregard of the Provincial Fiscal ..." who, as said respondent well knew, had already taken cognizance of the mattertwelve (12) days earlier and was poised to conduct his own investigation of the same; 17 and that issuance of a warrant ofarrest against fifty (50) "John Does" transgressed the Constitutional provision requiring that such warrants shouldparticularly describe the persons or things to be seized. 18

There can be no debate about the proposition that in conducting a pre investigation of any crime cognizable by theRegional Trial Courts, a judge of an inferior court (other than in Metro-Manila or the chartered cities, where no authority toconduct preliminary investigation is vested in such officials) must observe the procedure prescribed in Section 3 of Rule112, 1985 Rules on Criminal Procedure. And although not specifically so declared, the procedure mandated by the Ruleactually 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 documentsoffered in support thereof. And it ends with the determination by the Judge either: (1) that there is no ground to continuewith the inquiry, in which case he dismisses the complaint and transmits the order of dismissal, together with the recordsof the case, to the provincial fiscal; or (2) that the complaint and the supporting documents show sufficient cause tocontinue 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 andan opportunity to submit counter-affidavits and supporting documents. At this stage also, the Judge may conduct ahearing and propound to the parties and their witnesses questions on matters that, in his view, need to be clarified. Thesecond phase concludes with the Judge rendering his resolution, either for dismissal of the complaint or holding therespondent 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 preliminaryinvestigation has been completed, insofar as the respondent Judge is concerned, and that he does not intend toundertake 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 havingcome to believe, on the basis thereof, that the offenses charged had been committed, the respondent Judge issued thewarrant now complained of against the fourteen (14) respondents (now petitioners) named and Identified by the witnessesas 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 withoutcompleting the entire prescribed procedure for preliminary investigation. Stated otherwise, is completion of the procedurelaid 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 ofarrest may be issued. What the Rule 20 provides is that no complaint or information for an offense cognizable by theRegional Trial Court may be filed without completing that procedure. But nowhere is it provided that the procedure mustbe completed before a warrant of arrest may issue. Indeed, it is the contrary that is true. The present Section 6 of thesame Rule 112 clearly authorizes the municipal trial court to order the respondent's arrest even before opening thesecond phase of the investigation if said court is satisfied that a probable cause exists and there is a necessity to placethe respondent under immediate custody in order not to frustrate the ends of justice.

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

xxx xxx xxx



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(b) By the Municipal Trial Court. If the municipal trial judge conducting the preliminary investigation issatisfied after an examination in writing and under oath of the complainant and his witnesses in the formof searching question and answers, that a probable cause exists and that there is a necessity of placingthe respondent under immediate custody in order not to frustrate the ends of justice, he shag issue awarrant 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 formeSection 6 of Rule 112 provided:

SEC. 6. Warrant of arrest, when issued . — If the judge be satisfied from the preliminary e petitionconducted by him or by the investigating officer that the offense complained of has been committed andthat there is reasonable ground to believe that the accused has committed it, he must issue a warrant ororder for his arrest.

In Mayuga vs. Maravilla, 22 this Court found occasion to dwell in some detail on the process of preliminary investigationand, incidentally, to affirm the power of a justice of the peace or municipal judge conducting a preliminary investigation toorder 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 whetherthere is probable cause to believe the accused guilty thereof, and if so, the issuance of a warrant ofarrest. And it should not be forgotten that a preliminary investigation has two stages: First, a preliminaryexamination of the complainant and his witnesses prior to the arrest of the accused; and, second, thereading to the accused after his arrest of the complaint or information filed against him, and his beinginformed of the substance of the evidence against him, after which he is allowed to present evidence inhis favor, if he so desires. Probable cause, in regard to the first stage of preliminary investigationdepends on the discretion of the judge or magistrate empowered to issue the warrant of arrest. It sufficesthat facts are presented to him to convince him, not that a person has committed the crime, but that thereis probable cause to believe that such person committed the crime charged. The proceeding is generallyex parte unless the defendant desires to be present and while under the old Rules the Justice of thePeace or investigating officer must take the testimony of the complainant and the latter's witnesses underoath, 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 forthe full and exhaustive display of the parties' evidence; it is for the presentation of such evidence only asmay engender well-grounded belief that an offense has been committed and that the accused is probablyguilty thereof. ... 23

The rule on arrest after preliminary examination has, of course, been modified somewhat since the occurrence of the factsupon which Mayuga was decided, but not to abrogate the authority of the investigating judge to order such arrest, andonly to prescribe the requirement that before he may do so, he must examine the witnesses to the complaint, theexamination to be under oath and reduced to writing in the form of searching questions and answers. This modificationwas 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 prescribedprocedure. The rule is and has always been that such issuance need only await a finding of probable cause, not thecompletion of the entire procedure of preliminary investigation .

Also without appreciable merit is petitioners' other argument that there was scarcely time to determine probable causeagainst sixty-four persons (the fourteen petitioners and fifty "Does") within a matter of hours on a Saturday whenmunicipal trial courts are open only from 8:00 a.m. to 1:00 p.m. That argument founders upon the respondent Judge'spositive affirmations that he had personally and closely examined under oath the three witnesses to the complaint 24 andthat he had issued the warrant of arrest "believing that the offense thus filed had been committed." 25 Nothing in the recordbefore this Court belies or discredits those affirmations which have, besides, the benefit of the legal presumption thatofficial duty has been regularly performed. 26 The contention that the witnesses to the complaint had merely sworn before



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the respondent Judge to statements prepared beforehand and submitted by a military investigator 27 must, in view of theforegoing 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 preliminaryexamination to the usual Saturday office hours of 8:00 a.m. to 1:00 p.m., in addition to not making any persuasiveshowing that such proceedings could not have been completed within that time-frame. For all that appears, saidrespondent 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 threewitnesses 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 questionedproceedings, shows prima facie that the respondent Judge had personally examined the witnesses to the complaint, anda consideration of the latter's sworn answers to his questions satisfies this Court that the finding of probable cause againstthe petitioners was neither arbitrary nor unfounded.

The three witnesses to the complaint, Misandoning Monasprang, a student, Lawandato Ripors, an engineering graduateand Sanny Monib a farmer gave mutually corroborative accounts of the incident. Under separate questioning, theydeclared that they were members of a party that was passing by Pantao on its way to Lalabuan from Talaguian, all inMasiu, Lanao del Sur, at about 10:00 a.m. on July 27, 1985, when they were ambushed and fired upon by an armedgroup 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, theambushers had continued to fire at the dead bodies; that the witnesses managed to escape their attackers and return toTalaguian, where they informed their relatives about what had happened, and thence went to the municipal hall in Masiuto report to the authorities; that the dead victims were recovered only late in the afternoon of that day because theauthorities could not "penetrate" the area and the ambushers refused to release the bodies; and that the ambush was anoffshoot 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 ofthe ambush group. The respondent Judge can hardly be faulted for finding enough cause to hold the petitioners named inthe 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 isprobably guilty thereof so that a warrant of arrest may be issued and the accused held for trial," suchquestions as have tendency to show the commission of a crime and the perpetuator thereof. What wouldbe searching questions would depend on what is sought to be inquired into, such as: the nature of theoffense, the date, time, and place of its commission, the possible motives for its commission; the subjecthis age, education, status, financial and social circumstances, his attitude toward the investigation, socialattitudes, opportunities to commit the offense; the victim, his age, status, family responsibilities, financiaand social circumstances, characteristics, etc. The points that are the subject of inquiry may differ fromcase to case. The questions, therefore must to a great degree depend upon the Judge making theinvestigation. ...

Upon this authority, and considering what has already been stated above, this Court is not prepared to question thepropriety of the respondent Judge's finding of probable cause or substitute its judgment for his in the matter of whatquestions 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, suchissuance having been ordered after proceedings, to which no irregularity has been shown to attach, in which therespondent 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 complaintcould or would Identify, it is of the nature of a general warrant, one of a class of writs long proscribed as unconstitutionaand once anathematized as "totally subversive of the liberty of the subject." 30 Clearly violative of the constitutiona



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injunction that warrants of arrest should particularly describe the person or persons to be seized, 31 the warrant must, asregards its unidentified subjects, be voided.

The fact that the Provincial Fiscal may have announced his intention of investigating the incident himself did not, in theview of the Court, legally inhibit the respondent Judge from conducting his own inquiry into the matter if, as is made toappear here, it was regularly brought before him and no formal complaint was filed before the Fiscal. Courtesy may havedictated 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 orimplies 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 thepreliminary investigation are subject to review by the Provincial Fiscal, practical considerations of expediency and theavoidance of duplication of work dictate that the latter official be permitted to take over the investigation even in its presentstage.

WHEREFORE, the warrant complained of is upheld and declared valid insofar as it orders the arrest of the petitionersSaid warrant is voided to the extent that it is issued against fifty (50) "John Does." The respondent Judge is directed toforward to the Provincial Fiscal of Lanao del Sur the record of the preliminary investigation of the complaint in CriminalCase No. 1728 of his court for further appropriate action. Without pronouncement as to costs.

SO ORDERED.



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G.R. No. 133254-55 April 19, 2001

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,vs.ROBERTO SALANGUIT y KO, accused-appellant.

MENDOZA, J .:

This is an appeal from the decision,1 dated January 27, 1998, of the Regional Trial Court, Branch 96, Quezon City, findingaccused-appellant Roberto Salanguit y Ko guilty of violation of §16 of Republic Act No. 6425, as amended, andsentencing him accordingly to suffer imprisonment ranging from six (6) months of arresto mayor,as minimum, to four (4years and two (2) months of prision correccional, as maximum, and of §8 of the same law and sentencing him for suchviolation 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 CaseNo. 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 andthere 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 beingauthorized by law to possess or use any prohibited drug, did, then and there willfully, unlawfully and knowinglyhave 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 guilty4 whereupon he was tried.

Three witnesses were presented by the prosecution: P/Insp. Sonia S. Ludovico, forensic chemist and chief of the PhysicaScience Branch of the Philippine National Police Crime Laboratory, Senior Inspector Rodolfo Aguilar of the NarcoticsCommand, Camp Crame, Quezon City, and PO3 Rolando Duazo of Station 10, Kamuning, Quezon City, a field operativeThe prosecution evidence established the following:

On December 26, 1995, Sr. Insp. Aguilar applied for a warrant5 in the Regional Trial Court, Branch 90, DasmariñiasCavite, 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 2.12grams of shabu from accused-appellant. The sale took place in accused-appellant's room, and Badua saw thatthe shabu was taken by accused-appellant from a cabinet inside his room. The application was granted, and a searchwarrant 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 theresidence 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 thehouse.8 They found 12 small heat-sealed transparent plastic bags containing a white crystalline substance, a paper clipbox also containing a white crystalline substance, and two bricks of dried leaves which appeared to be marijuana wrappedin newsprint9 having a total weight of approximately 1,255 grams.10 A receipt of the items seized was prepared, but theaccused-appellant refused to sign it. 11

http://www.lawphil.net/judjuris/juri2001/apr2001/gr_133254_2001.html#fnt1









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After the search, the police operatives took accused-appellant with them to Station 10, EDSA, Kamuning, Quezon Cityalong with the items they had seized.12

PO3 Duazo requested a laboratory examination of the confiscated evidence.13 The white crystalline substance with a totaweight of 2.77 grams and those contained in a small box with a total weight of 8.37 grams were found to be positive formethamphetamine hydrochloride. On the other hand, the two bricks of dried leaves, one weighing 425 grams and theother 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 acommotion 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 ofhim. 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 asearch, forcibly opening cabinets and taking his bag containing money, a licensed .45 caliber firearm, jewelry , andcanned goods.17

The policemen left at around 12:30 a.m. of December 27, 1995, and, after putting handcuffs on accused-appellant, tookhim 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 policemenransacked 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 theaccused ROBERTO SALANGUIT y KO guilty beyond reasonable doubt of the crime charged and he is herebyaccordingly sentenced to suffer an indeterminate sentence with a minimum of six (6) months of arresto mayor anda 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 theaccused ROBERTO SALANGUIT y KO guilty beyond reasonable doubt of the crime charged and he is herebyaccordingly 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 herebydirected 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 OFMETHAMPHETAMINE HYDRO-CHLORIDE(SHABU)



























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THE COURT A QUO GRAVELY ERRED IN CONVICTING ACCUSSED-APPELLANT FOR VIOLATION §8, R.ANo. 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 INENFORCING THE SEARCH WARRANT.

Accused-appellant is contesting his conviction on three grounds. First, the admissibility of the shabu allegedly recoveredfrom his residence as evidence against him on the ground that the warrant used in obtaining it was invalid. Second, theadmissibility in evidence of the marijuana allegedly seized from accused-appellant pursuant to the "plain view" doctrineThird, the employment of unnecessary force by the police in the execution of the warrant.

First. Rule 126, §4 of the Revised Rules on Criminal Procedure21 provides that a search warrant shall not issue excepupon probable cause in connection with one specific offense to be determined personally by the judge after examinationunder oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place tobe 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 ofCriminal 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 WARRANTNO.160 For: Violation of RA 6425

SEARCH WARRANT

TO ANY PEACE OFFICER:

G R E E T I N G S:

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 ROBERTSALANGUIT 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

Judge

Accused-appellant assails the validity of the warrant on three grounds: (1) that there was no probable cause to search fordrug paraphernalia; (2) that the search warrant was issued for more than one specific offense; and (3) that the place to besearched was not described with sufficient particularity.










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Existence of Probable Cause

The warrant authorized the seizure of "undetermined quantity of shabu and drug paraphernalia." Evidence was presentedshowing probable cause of the existence of methamphetamine hydrochloride or shabu. Accused-appellant contendshowever, that the search warrant issued is void because no evidence was presented showing the existence of drugparaphernalia 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, didnot 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 wereassigned 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 JoseQuezon 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 withROBERT 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 HundredFifty (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 shabuwas 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.







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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 theprogress 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, forTechnical Analysis which yielded positive result for shabu, a regulated drug as shown in the attached certificationof PNP CLS result No. D-414-95 dated 19 December 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 ofshabu, 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 infact seized by the police. The fact is that none was taken by virtue of the search warrant issued. If at all, therefore, thesearch warrant is void only insofar as it authorized the seizure of drug paraphernalia, but it is valid as to the seizure ofmethamphetamine hydrochloride as to which evidence was presented showing probable cause as to its existence. Thusin Aday v. Superior Court ,25 the warrant properly described two obscene books but improperly described other articles. Itwas held:

Although the warrant was defective in the respects noted, it does not follow that it was invalid as a whole. Such aconclusion would mean that the seizure of certain articles, even though proper if viewed separately, must becondemned merely because the warrant was defective with respect to other articles. The invalid portions of thewarrant are severable from the authorization relating to the named books, which formed the principal basis of thecharge of obscenity. The search for and seizure of these books, if otherwise valid, were not rendered illegal by thedefects 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 whichare essentially general in character but as to minor items meet the requirement of particularity, and that wholesaleseizures might be made under them, in the expectation that the seizure would in any event be upheld as to theproperty 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 theitems to be seized on the basis thereof, is to be invalidated in toto because the judge erred in authorizing a search forother items not supported by the evidence.26 Accordingly, we hold that the first part of the search warrant, authorizing thesearch of accused-appellant's house for an undetermined quantity of shabu, is valid, even though the second part, withrespect to the search for drug paraphernalia, is not.

Specif ic i ty of the Offense Charged

Accused-appellant contends that the warrant was issued for more than one specific offense because possession or use omethamphetamine hydrochloride and possession of drug paraphernalia are punished under two different provisions ofR.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 isprobable 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 theoffense stated above." Although the specific section of the Dangerous Drugs Act is not pinpointed, there is noquestion at all of the specific offense alleged to have been committed as a basis for the finding of probable cause.















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The search warrant also satisfies the requirement in the Bill of Rights of the particularity of the description to bemade of the "place to be searched and the persons or things to be seized." 28

Indeed, in People v. Dichoso29 the search warrant was also for "Violation of R.A. 6425," without specifying what provisionsof the law were violated, and it authorized the search and seizure of "dried marijuana leaves and methamphetaminehydrochloride (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, inviolation of Section 3, Rule 126 of the Rules of Court, is unpersuasive. He engages in semantic juggling bysuggesting that since illegal possession of shabu, illegal possession of marijuana and illegal possession ofparaphernalia are covered by different articles and sections of the Dangerous Drugs Act of 1972, the searchwarrant is clearly for more than one (1) specific offense. In short, following this theory, there should have beenthree (3) separate search warrants, one for illegal possession of shabu, the second for illegal possession ofmarijuana 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 tothe same class or species. Accordingly, one (1) search warrant may thus be validly issued for the said violationsof the Dangerous Drugs Act. 30

Similarly, in another case,31 the search warrant was captioned: "For Violation of P .D. No.1866 (Illegal Possession o

Firearms, etc.)." The validity of the warrant was questioned on the ground that it was issued without reference to anyparticular provision in P.D. No.1866, which punished several offenses. We held, however, that while illegal possession offirearms is penalized under §1 of P.D. No.1866 and illegal possession of explosives is penalized under §3 thereof, thedecree is a codification of the various laws on illegal possession of firearms, ammunitions, and explosives which offensesare so related as to be subsumed within the category of illegal possession of firearms, etc. under P.D. No.1866. Thusonly one warrant was necessary to cover the violations under the various provisions of the said law.

Particularly of the Place

Accused-appellant contends that the search warrant failed to indicate the place to be searched with suff icient 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 tooknote of the fact that the records of Search Warrant Case No.160 contained several documents which identifiedthe premises to be searched, to wit: 1) the application for search warrant which stated that the premises to besearched was located in between No.7 and 11 at Binhagan Street, San Jose, Quezon City; 2) the deposition ofwitness which described the premises as "a house without a number located at Binhagan St., San Jose, QuezonCity; and 3) the pencil sketch of the location of the premises to be searched. In fact, the police officers who raidedappellant's house under the leadership of Police Senior Inspector Rodolfo Aguilar could not have been mistakenas Inspector Aguilar resides in the same neighborhood in Binhagan where appellant lives and in fact Aguilar'splace is at the end of appellant's place in Binhagan. Moreover, the house raided by Aguilar's team is undeniablyappellant'.s house and it was really appellant who was the target. The raiding team even first ascertained throughtheir 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 reasonableeffort, ascertain and identify the place intended to be searched.33 For example, a search warrant authorized a search o Apartment Number 3 of a building at 83 Pleasant Street, Malborough, Massachusetts. As it turned out, there were fiveapartments in the basement and six apartments on both the ground and top floors and that there was an ApartmentNumber 3 on each floor. However, the description was made determinate by a reference to the affidavit supporting thewarrant that the apartment was occupied by the accused "Morris Ferrante of 83 Pleasant Street, Malboro Mass. "34 In thiscase, the location of accused-appellant's house being indicated by the evidence on record, there can be no doubt that thewarrant described the place to be searched with sufficient particularity.1âwphi1.nêt

In sum, we hold that with respect to the seizure of shabu from accused-appellant's residence, Search Warrant No.160was properly issued, such warrant being founded on probable cause personally determined by the judge under oath oraffirmation of the deposing witness and particularly describing the place to be searched and the things to be seized.


























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Second . The search warrant authorized the seizure of methamphetamine hydrochloride or shabu but not marijuanaHowever, seizure of the latter drug is being justified on the ground that the drug was seized within the "plain view" of thesearching 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 positionto have that view are subject to seizure and may be presented in evidence.35 For this doctrine to apply, there must be: (aprior 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 thiscase.

Prior Just i f ica t ion 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 toassume that the police found the packets of the shabu first. Once the valid portion of the search warrant has beenexecuted, the "plain view doctrine" can no longer provide any basis -for admitting the other items subsequently found. Ashas been explained:

What the 'plain view' cases have in common is that the police officer in each of them had a prior justification for anintrusion in the course of which he came inadvertently across a piece of evidence incriminating the accused. Thedoctrine serves to supplement the prior justification -whether it be a warrant for another object, hot pursuit, search

incident to lawful arrest, or some other legitimate reason for being present unconnected with a search directedagainst the accused -and permits the warrantless seizure. Of course, the extension of the original justification islegitimate 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 somethingincriminating 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 ofthe one arrested and the premises within his immediate control.18 The rationale for permitting such a search is to preventthe 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 contemporaneouswith, the shabu subject of the warrant, or whether it was recovered on accused-appellant's person or in an area within hisimmediate control. Its recovery, therefore, presumably during the search conducted after the shabu had been recoveredfrom the cabinet, as attested to by SPO1 Badua in his depostion, was invalid.

App arent Il legal i ty of the Evidence

The marijuana bricks were wrapped in newsprint. There was no apparent illegality to justify their seizure. This case issimilar to People. v. Musa39 in which we declared inadmissible the marijuana recovered by NARCOM agents because thesaid drugs were contained in 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 clueas 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 contentsof the bag had they not forcibly opened it; Even assuming then, that the NARCOM agents inadvertently cameacross the plastic bag because it was within their "plain view," what may be said to be the object in their "plainview" was just the plastic bag and not the marijuana. The incriminating nature of the contents of the plastic bagwas not immediately apparent from the "plain view" of said object. It cannot be claimed that the plastic bag clearlybetrayed its contents, whether by its distinctive configuration, is transparency, or otherwise, that its contents areobvious to an observer .40

No presumption of regularity may be invoked by an officer in aid of the process when he undertakes to justify anencroachment of rights secured by the Constitution.41 In this case, the marijuana allegedly found in the possession ofaccused-appellant was in the form of two bricks wrapped in newsprint. Not being in a transparent container, the contentswrapped in newsprint could not have been readily discernible as marijuana. Nor was there mention of the time or mannerthese items were discovered. Accordingly, for failure of the prosecution to prove that the seizure of the marijuana without



























73

a warrant was conducted in accordance with the "plain view doctrine," we hold that the marijuana is inadmissible inevidence 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 theraid.

Rule 126, §7 of the Revised Rules on Criminal Procedure42 provides:

Right to break door or window to effect search. - The officer, if refused admittance to the place of directed searchafter giving notice of his purpose and authority, may break open any outer or inner door or window of a house orany part of a house or anything therein to execute the warrant or liberate himself or any person lawfully aiding himwhen unlawfully detained therein.

Accused-appellant's claim that the policemen had clambered up the roof of his house to gain entry and had broken doorsand windows in the process is unsupported by reliable and competent proof. No affidavit or sworn statement ofdisinterested persons, like the barangay officials or neighbors, has been presented by accused-appellant to attest to thetruth 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. Theoccupants of the house, especially accused-appellant, refused to open the door despite the fact that the searching partyknocked on the door several times. Furthermore, the agents saw the suspicious movements of the people inside thehouse. These circumstances justified the searching party's forcible entry into the house, founded as it is on theapprehension 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 Cityfinding 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 maximumand 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 guiltyof 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 Pl00,000.00 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 11.14grams of methamphetamine hydrochloride, and its disposition as ordered by the trial court is AFFIRMED .

SO ORDERED.






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G.R. No. 93239 March 18, 1991

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,vs.EDISON SUCRO, accused-appellant.


Fidencio S. Raz for accused-appellant.

GUTIERREZ, JR., J.:

Edison Sucro was charged with and convicted of violation of Section 4, Article II of the Dangerous Drugs Act, under anInformation 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 accusedacting as a pusher or broker in the business of selling, administering, delivery, giving away to another and/ordistributing prohibited drugs, did then and there wilfully, unlawfully and feloniously and without authority of lawhave in his possession and control nineteen (19) pieces of marijuana cigarette sticks and four (4) tea bags ofdried marijuana leaves which were confiscated from him by the police authorities of Kalibo, Aklan, shortly afterhaving 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. Triaensued 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 underSection 4, Article II of the Dangerous Drug Act, as amended, and sentencing him to suffer the penalty of lifeimprisonment, and pay a fine of P20,000, and costs. He shall be entitled to full credit in the service of hissentence 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, p41)

From the foregoing judgment of conviction, accused-appellant interposes this appeal, assigning the following as errorsallegedly committed by the court a quo, to wit:

I

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 SAMEWERE TAKEN WITHOUT THE REQUIRED WARRANT OF SEARCH AND ARREST SINCE THE ACCUSEDWAS 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 OFPROHIBITED DRUGS UNDER SECTION 4, ARTICLE II, OF THE DANGEROUS DRUGS ACT ANDSENTENCING HIM TO SUFFER A PENALTY OF LIFE IMPRISONMENT AND TO PAY A FINE OF P 20,000.00(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. VicenteSeraspi, Jr. (Station Commander of the INP Kalibo, Aklan) to monitor the activities of appellant Edison Sucrobecause 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 ArlieRegalado at C. Quimpo Street. Adjacent to the house of Regalado, about 2 meters away, was a chapel.



75

Thereafter, Pat. Fulgencio saw appellant enter the chapel, taking something which turned out later to bemarijuana from the compartment of a cart found inside the chapel, and then return to the street where he handedthe same to a buyer, Aldie Borromeo. After a while appellant went back to the chapel and again came out withmarijuana which he gave to a group of persons. (pp. 6-8, 15-18, Ibid ). It was at this instance that Pat. Fulgencioradioed P/Lt. Seraspi and reported the activity going on. P/Lt. Seraspi instructed Pat. Fulgencio to continuemonitoring developments. At about 6:30 P.M., Pat. Fulgencio again called up Seraspi to report that a third buyerlater 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 YouthHostel at Maagma St., Pat. Fulgencio told P/Lt. Seraspi to intercept Macabante and appellant. P/Lt. Seraspi andhis team caught up with Macabante at the crossing of Mabini and Maagma Sts. in front of the Aklan MedicalCenter. Upon seeing the police, Macabante threw something to the ground which turned out to be a tea bag ofmarijuana. (pp. 6-8, TSN, June 19, 1989) When confronted, Macabante readily admitted that he bought the samefrom appellant (Edison Sucro) in front of the chapel. (p. 6, TSN, May 24, 1989) The police team was able toovertake and arrest appellant at the corner of C. Quimpo and Veterans Sts. The police recovered 19 sticks and 4teabags of marijuana from the cart inside the chapel and another teabag from Macabante, The teabags ofmarijuana were sent to the PC-INP Crime Laboratory Service, at Camp Delgado, Iloilo City for analysis. Thespecimens (Exhibits "G" to "G-18", Exhibits "E" to "E-4") were all found positive of marijuana. (pp. 47, 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 islawful 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, ArticleIII of the 1987 Constitution. He stresses that there was sufficient time for the police officers to apply for a search andarrest warrants considering that Fulgencio informed his Station Commander of the activities of the accused two daysbefore 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 isconsidered 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 tocommit an offense;

(b) When an offense has in fact just been committed, and he has personal knowledge of facts indicating that theperson to be arrested has committed it; (Emphasis supplied)

An offense is committed in the presence or within the view of an officer, within the meaning of the rule authorizing anarrest 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 theaccused 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 hewas 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 themarijuana stick and when confronted, readily admitted that he bought the same from accused-appellant clearly indicates



76

that Sucro had just sold the marijuana stick to Macabante, and therefore, had just committed an illegal act of which thepolice 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 havepersonal knowledge of the actual commission of the crime when it had earlier conducted surveillance activities of theaccused. Thus, it stated:

When Luciano and Caraan reached the place where the alleged transaction would take place and whilepositioned at a street comer, they saw appellant Regalado Bati and Warner Marquez by the side of the streeabout 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 frontof his abdomen while Bati, on his part, placed the thing given to him inside his pocket. (p. 2)

x x x x x x x x x

. . . Both Patrolman Luciano and Caraan actually witnessed the same and their testimonies were based on theiractual and personal knowledge of the events that took place leading to appellant's arrest. They may not havebeen within hearing distance, specially since conversation would expectedly be carried on in hushed tones, butthey were certainly near enough to observe the movements of the appellant and the buyer. Moreover, theseprosecution 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, October12, 1987)

The accused questions the failure of the police officers to secure a warrant considering that Fulgencio himself knew ofSucro's activities even prior to the former's joining the police force. Fulgencio reported Sucro's activities only three daysbefore 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 ofthis 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 wasconstrained 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 acquiredfrom the surveillance was insufficient to fulfill the requirements for the issuance of a search warrant. What is paramount isthat probable cause existed. Thus, it has been held in the case of People v . Lo Ho Wing, et al . (G.R. No. 88017, January21, 1991):

In the instant case, it was firmly established from the factual findings of the trial court that the authorities hadreasonable ground to believe that appellant would attempt to bring in contraband and transport it within thecountry. The belief was based on intelligence reports gathered from surveillance activities on the suspectedsyndicate, of which appellant was touted to be a member. Aside from this, they were also certain as to theexpected date and time of arrival of the accused from China. But such knowledge was clearly insufficient toenable them to fulfill the requirements for the issuance of a search warrant. Still and all, the important thing is thatthere 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 beingpreceded by an arrest provided the same is effected on the basis of probable cause (e.g. stop and search withoutwarrant at checkpoints). Between warrantless searches and seizures at checkpoints and in the case at bar thelatter 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, toarrest 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



77

126 of the Rules on Criminal Procedure, which provides that a person lawfully arrested may be searched for dangerousweapons 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 obtainedtherefrom is inadmissible.

As earlier discussed, there is nothing unlawful about the arrest considering its compliance with the requirements of awarrantless 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 merelyto 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 ) hiswillingness to testify in court against the accused. But this does not necessarily taint the evidence that proceedsfrom his lips. As explained by Lt. Seraspi, the best sources of information against drug pushers are usually theircustomers, especially if as in this case, there is no other direct evidence of the selling except the testimony of thebuyer. We accept this observation as a realistic appraisal of a situation in which drug users are, and should beemployed by law enforcement authorities to bolster the drive against pushers who are the real felons in oursociety. 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 telthe 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 disturbedon appeal unless it is shown that the trial court had overlooked certain facts of weight and importance, it beingacknowledged. that the court below, having seen and heard the witnesses during the trial, is in a better position toevaluate their testimonies (People v. Umali, et al., G.R. No. 84450, February 4, 1991 citing People v. Alvarez, 163 SCRA745 [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 theirmission to capture a drug pusher in the execution of the crime, the presumption being that police officers perform theirduties regularly in the absence of any evidence to the contrary (Rule 131, Sec. 3(m), Revised Rules on Evidence; Peoplev. 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 allpositive for marijuana.

In contrast to the evidence presented by the prosecution, accused-appellant's defense is alibi which is unavailingconsidering 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 thevicinity 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 theprohibited 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. Thetrial court's decision must be upheld.

WHEREFORE, the decision appealed from is hereby AFFIRMED.

SO ORDERED.



78

G.R. Nos. 141943-45 November 13 ,2002

THE PEOPLE OF THE PHILIPPINES, appellee,vs.DIOSDADO RECEPCION Y PALASO (deceased), FELIPE DELA CRUZ Y REYES,AUDIE DONA Y BINAN, ALFREDO BARACAS Y CONCEPCION, EDUARDO PALACPAC Y ROSALES,BERNARDO RANARA Y MORATALLA (at large),

JOEMARI DELOS REYES Y CONCEPCION,DOMINADOR RECEPCION Y PALASO and ROBERT ALFONSO Y MARTIZANO, appellants.

D E C I S I O N

VITUG, J .:

Five innocent men met their sudden death at a not-so-forlorn corner of Caloocan City when a group of malefactors,without apparent provocation or reason, had cast their terror on the early morning of 28 July 1999.

Eight1 persons were charged with multiple murder, violation of Presidential Decree (P.D.) No. 1866,2 and robbery in bandin three separate accusatory Informations that read:

In Criminal Case No. 57208 –

"That on or about 1:15 o’clock a.m. of July 28, 1999 in

Caloocan City, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiringconfederating and mutually helping each other, did then and there willfully, unlawfully and feloniously, with intent to killevident premeditation and treachery after posing as customers and armed with unlicensed handguns entered SabunganFastfood & Videoke and once inside, without any provocation from anyone suddenly, unexpectedly and in totallysenseless and surprising act or rampage attacked, assaulted and shot five (5) customers, namely: Benjamin E. ValdezRodolfo O. Ortega, Augusto A. Billodo, Ruperto S. San Juan and Renato T. Cleofas, Sr., thereby hitting and mortallywounding the said five (5) persons causing their instantaneous death."3

In Criminal Case No. 57209 -"That on or about 1:00 to 3:00 A.M. or thereabout, on July 28, 1999 in Caloocan CityPhilippines, and within the jurisdiction of this Honorable court, the above-named accused had in their possession, custodyand control the following firearms/handguns loaded with ammunitions to wit:

a. One (1) Cal. 38 Armscor SN-760006;

b. One (1) Cal. 38 Armscor SN-51 900;

c. One (1) Cal. 38 Armscor SN-51952;

d. One (1) Cal. 38 Squires Bingham SN-1095906;

e. One (1) Pistol 9mm Noringco SN-861406966;

f. Fifty-two (52) pcs. Cal. 38 live ammunitions;

g. Twenty eight (28) pcs. 9 MM live ammunitions;

h. Eight (8) pcs. Cal. 38 empty shells,

"without the necessary license or authority as required by law and which firearms were used in the commission of multiplemurder (killing of five persons, namely: Benjamin E. Valdez, Rodolfo D. Ortega, Augusto A. Billodo, Ruperto S. San Juanand Renato T. Cleofas, Sr. at Sabungan Fastfood & Videoke, which is within the jurisdiction of this Honorable Court)." 4



79

In Criminal Case No. 57210 –

"That on or about 1:15 A.M. on July 28, 1999 in Caloocan City, Philippines, and within the jurisdiction of this Honorablecourt, the above-named accused, acting in concert, conspiring, confederating and mutually helping one another, withintent of gain, by means of force, threats, violence or intimidation, and immediately after accused totally unprovoked andunexpected shooting rampage, which resulted in the death of several customers, did then and there willfully, unlawfullyand feloniously, with the use of their unlicensed firearm, forcibly and violently take, divest, and carry away from LENY

GATICA, FREDEBERT DADON, DENNIS SERRANO and RODEL FESARIT, the following cash and personal belongings,namely: a lady bracelet worth P3,500.00, three (3) men wristwatches worth P7,500.00 and the establishment earnings ofP5,000.00, to the loss, damage and prejudice of the above-named owner/s." 5

The indictees, when arraigned, pled "not guilty" to all the charges. The cases were tried jointly.

The Version of the Prosecution -

Marie Flamiano was a waitress at "Sabungan Fastfood and Videoke Pub," located along Samson Road, in Caloocan City At about one-thirty on the morning of 28 July 1999, she was attending to customers when seven men, she identified to beDiosdado Recepcion, Alfredo Baracas, Joemari delos Reyes, Bernardo Ranara, Dominador Recepcion, Robert Alfonsoand Audie Dona, entered the pub while one was tailing behind at the entrance. The men occupied table 12 and orderedbeer from waitress Eliza Bautista. A few minutes later, three men from the group transferred to table 10. Just as Marie

was approaching table 13 to get the microphone from a customer, one of the men stood up and fired his gun at anothercustomer. Marie identified this gunman to be Alfredo Baracas.

Eliza Bautista, the waitress who served the group, among them Diosdado Recepcion, Robert Alfonso, Audie Dona Alfredo Baracas, Eduardo Palacpac, Joemari delos Reyes and Dominador Recepcion, saw another man pull out a gunand shot a customer, Rodolfo Ortega, while on his knees. The women later identified the gunman to be DiosdadoRecepcion. Rosalia Juanica, a co-waitress who had meanwhile dashed out and hid at the nearby "St. Joseph Store," sawRodolfo Ortega, kneeling with both hands raised in plea, but one of the men, she likewise identified to be DiosdadoRecepcion, fired his gun at pointblank range.

Jojo Paraiso was with his co-security guards having a drinking spree when a group of armed men, started shooting. Someof the men shouted, "dapa," but Jojo’s companion, Benjamin Valdez, unfortunately took a bullet shot before he cou ld gethe chance to heed the warning. Jojo identified the person who fired at Valdez to be Robert Alfonso. He hid under thetable and could only watch the men gone berserk. The last of the gunmen who left the pub, still firing his gun, wasJoemari delos Reyes.

Jhosa Reyes, a waitress at the A & E Kitchenette just across the Sabungan, saw the gunmen and their cohorts scamperaway after the shooting incident. She recognized three of the gunmen, Robert Alfonso, Joemari delos Reyes and EduardoPalacpac, as being "regular" customers at the A & E Kitchenette. Shortly before the shooting, Alfonso, delos Reyes,Palacpac and another companion were drinking at the kitchenette but soon headed towards the alley near the pub.

Found sprawled on the floor, when the shooting finally stopped, were the lifeless bodies of five men - Benjamin Valdez, Augusto Billodo, Renato Cleofas, Rodolfo Ortega and Ruperto San Juan.

Ruben Labjata, a jeepney driver, was waiting for passengers at Dagohoy Street, Caloocan City, when he heard gunshots

He was about to leave with only a few passengers when, unexpectedly, three men arrived and ordered all the passengersto get off the vehicle. The men menacingly pointed their guns at Labjata and ordered him to drive. Moments later, fivemore men boarded his jeepney. Three of the men stayed with the driver at the front seat while the other five sat at therear. The group directed Labjata to drive towards Monumento and then to EDSA. After stopping briefly at Petron Station torefuel, the group proceeded to Quezon City. At a "7-11" convenience store in Tandang Sora, some of the men alightedfrom the vehicle. More gunshots were fired. Boarding once again the jeepney, the men told Labjata to go north until theyfinally reached, hours later, Paniqui, Tarlac. At Paniqui, the men debated on the driver’s fate. After hearing one suggestthat he should be killed ("tumba"), Labjata panicked and begged the group to spare him -"maawa po kayo, may pamilyapo ako." One of the men allowed him to go home with a warning that he should not report the incident to the police. Inopen court, he identified the malefactors to be Audie Dona, Alfredo Baracas, Diosdado Recepcion, Bernardo Ranara,Eduardo Palacpac, Dominador Recepcion, Joemari delos Reyes and Robert Alfonso.



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Conrado Marquez, a tricycle driver, was waiting for passengers along the highway of Paniqui, Tarlac, when he saw agroup of men alight from a dirty jeepney. Four of the men rode in his tricycle, while the other four took two more tricyclesMarquez brought the group to Brgy. Coral, Ramos, Tarlac.

Around lunchtime on 29 July 1999, the Bulacan Police invited Ruben Labjata for questioning. Taken by police authoritiesto Tarlac, he pointed to the exact place where the armed men got off from his vehicle. Conrado Marquez, likewise invitedby the police for interrogation, readily informed the police of the place where he brought the men who hired his tricycle.

The police promptly cordoned the area and the group, along with FO1 Felipe dela Cruz, surrendered after several calls bythe police. Taken into custody were Felipe dela Cruz, Joemari delos Reyes, Audie Dona, Alfredo Baracas, EduardoPalacpac, Bernardo Ranara, Robert Alfonso, and Dominador Recepcion. Diosdado Recepcion, then a special agent of theNarcotics Command, was intercepted at the national highway of Cuyapo, Nueva Ecija, on board a tricycle. At the TarlacPolice Station, Labjata identified his passengers, namely, Audie Dona, Alfredo Baracas, Diosdado Recepcion, BernardoRanara, Eduardo Palacpac, Dominador Recepcion, Joemari delos Reyes and Robert Alfonso.

Diosdado Recepcion, Felipe dela Cruz, Audie Dona, Alfredo Baracas, Eduardo Palacpac, Bernardo Ranara, Joemardelos Reyes, Dominador Recepcion, and Roberto Alfonso were charged with multiple murder, violation of P.D. No. 1866,and robbery in band before the Regional Trial Court, National Capital Region, Branch 129, Caloocan City. The incidentthat occurred at the 7-11 convenience store also spawned several separate criminal informations (not involved in theinstant cases under review).

During the trial, Diosdado Recepcion died in an escape attempt, while accused Bernardo Ranara escaped and remainedat large.

The Version of the Defense

The defense interposed alibi.

According to Dominador Recepcion, he was, at the time of the reported shooting incident, fast asleep at GreenwoodsSubdivision in Cainta, Rizal, where he was a construction worker. His co-workers were Eduardo Palacpac and Rober Alfonso. On the evening of 27 July 1999, the trio went to Pansi, Paniqui, Tarlac, to help Dominador Recepcion’s nephewJoemari delos Reyes, find a job. It was after one o’clock in the afternoon when Joemari brought them to the house of hiscousin FO1 Felipe dela Cruz.

Joemari delos Reyes testified that, on the afternoon of 28 July 1999, he was at home when his uncle DominadorRecepcion arrived with Robert Alfonso and Eduardo Palacpac. He brought his guests to the house of Felipe dela Cruzwhere they partook of beer.

Felipe dela Cruz stated that on 28 July 1999, about one o’clock in the afternoon, his father fetched him from a cousin’shouse. When he arrived home, he was met by Joemari delos Reyes along with the latter’s companions, namely, EduardoPalacpac, Robert Alfonso, and Dominador Recepcion. In the evening of the same day, about eight o’clock, he invited hisvisitors to join him in attending a wake just a few meters away, and they stayed there until dawn. The following morning of29 July 1999, policemen arrived and cordoned his house. He was arrested together with Joemari delos Reyes, AudieDona and Alfredo Baracas. During a series of questioning at the Caloocan Police Station, dela Cruz insisted that he wasattending a wake at the time the shooting incident occurred in Caloocan City.

Audie Dona said that on 28 July 1999, he and his friend Alfredo Baracas, went to Pansi, Ramos, Tarlac, to visit his cousinJoemari delos Reyes and to get some fresh fish and vegetables. When he did not find Joemari at his house, he andBaracas proceeded to the place of dela Cruz where they were invited to join the group of Felipe dela Cruz, Joemari delosReyes, Eduardo Palacpac, and Dominador Recepcion in a drinking spree. Dona and Baracas stayed until nine o’clock inthe evening when they repaired to the house of Joemari to spend the night. On 29 July 1999, he and Baracas went backto see dela Cruz but found Joemari still sleeping. The two dozed off while waiting for Joemari to wake up until they allfound themselves surrounded by the police.

When the trial was over and weighing the evidence before it, the court a quo found the several accused guilty in CriminaCase No. C-57208 for multiple murder but acquitted them in Criminal Case No. C-57209 for the charge of illegalpossession of firearm and Criminal Case No. 57210 for robbery in band because of insufficiency of evidence. The trialcourt adjudged thusly:



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"WHEREFORE, premises considered, this Court finds the following accused GUILTY beyond reasonable doubt of MultipleMurder in Criminal Case No. C-57208, as defined and penalized under Art. 248 of the Revised Penal Code, as amendedby Section 6 of Rep. Act No. 7659:

1. Audie Dona

2. Alfredo Baracas

3. Bernardo Ranara (escaped)

4. Eduardo Palacpac

5. Dominador Recepcion

6. Joemari delos Reyes

7. Robert Alfonso

"Accordingly, the 7 above-named accused shall each serve the penalty of DEATH FIVE (5) TIMES OVERcorresponding

to the 5 victims they murdered.

"By way of civil liabilities, the 7 above-named accused shall jointly and severally pay the following amounts of money tothe following complaining witnesses, without subsidiary imprisonment in case of insolvency:

1. Divina Ortega -

a) Death Indemnity - P 50,000.00

b) Moral Damages - 100,000.00

c) Funeral expense - 20,000.00

T O T A L - 170,000.00

2. Virginia Cleofas -




TOTAL - 170,000.00

3. Jocelyn Valdez -




TOTAL - 186,000.00



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4. Estella Ablong San Juan -




TOTAL - 167,500.00

5. Heirs of Augusto Billodo -



TOTAL - 150,000.00

"or the aggregate amount of P843,500.00.

"Considering that the accused Diosdado Recepcion is now deceased, he is hereby dropped from these cases, pursuant to Article 89 of the Revised Penal Code.

"Considering also that the accused Bernardo Ranara is now at large after having escaped on November 22, 1999, let anOrder of Arrest be issued against him for the service of his sentence in Criminal Case No. C-57208 for Multiple Murder.

"As an Accessory to Multiple Murder under Article 19 of the Revised Penal Code, the accused FOl Felipe dela Cruz shalserve the indeterminate penalty of imprisonment from 10 years and 1 day of Prision Mayor, as minimum, to 17 years, 4months and 1 day of Reclusion Temporal, as maximum, with all the accessory penalties under the law and shall pay thecosts.

"Criminal Case No. C-57209 for Illegal Possession of Firearms is ordered dismissed, the filing thereof being unnecessary,pursuant to Section 1 of Rep. Act No. 8294.

"Criminal Case No. C-57210 for Robbery in Band is likewise ordered dismissed for insufficiency of evidence.

"The Branch Clerk of this Court shall now issue the corresponding Commitment Order to the Director, Bureau ofCorrections, thru the City Jail Warden of Quezon City.

"Pursuant to Section 22 of Rep. Act 7659, the Branch Clerk shall elevate the complete records of this case to theHonorable Supreme Court within 20 days but not earlier than 15 days after this promulgation, for automatic review." 6

The capital punishment having been imposed on herein appellants for the crime of multiple murder, the case was elevated

to this Court for automatic review. In their brief, appellants ascribed to the trial court a number of alleged errors but, byand large, they focused on the issue of credibility of the witnesses and the imposition of the death penalty.

Appellants argue that the witnesses presented by the prosecution have committed several inconsistencies, mainly on theidentities of the gunmen, said to be well enough to discredit their testimony. The poor lighting condition of the pub, theyclaim, could have easily blurred the vision of the witnesses frustrating any clear identification of the assailants. Thedefense also belabors the finding of conspiracy and, in general, of their conviction by the trial court.

In criminal cases, particularly where the capital punishment is imposed, this Court takes a most painstaking effort toascertain the guilt or innocence of the convicted accused. Nevertheless, it has long been a standing rule that the findingson the credibility of witnesses by the trial court are hardly disturbed on appeal. The appellate court adheres to suchdeference in view of the vantage that a trial court enjoys in its reception of testimonial evidence, It is only when thereevidently are matters of substance that have been overlooked that an appellate court would feel justified to ignore the



83

evaluation and assessment made by the trial court on such evidence. Looking closely at the records, nothing significant isdisclosed to warrant a reversal of the rule. Observe thusly -

Testimony of Eliza Bautista

"Q Miss Bautista, you said you are a waitress of Sabungan Fastfood and Videoke?

"A Yes, sir.

"Q And as such, one of your duties is to serve food, drinks or whatever to your customers?

"A Yes, sir.

"Fiscal Dañosos

"Q Did you recall if you reported for work sometime at a round 12 to 1:00 o’clock midnight at Sabungan Fastfoodon July 28, 1999?

"A Yes, sir. I was there, sir.

x x x x x x x x x

"Fiscal Dañosos

"Q Alright. You said you have 2 customers in the name of San Juan and Ortega. And then, you said also youpointed to the group of the accused and you said that they were [y]our last customers. Alright, more or less, whattime did [these] new customers or last customers of yours arrived?

"A 1:15 a.m., sir.

x x x x x x x x x

"Q Now, when you saw them entering the Sabungan Restaurant, what if any did you do being a waitress?

"A After they entered together, they ordered 7 beers. So, I served 7 beers and then occupied a table and afteroccupying the table, the 3 transferred to another table, sir.

x x x x x x x x x

"Q Let’s go back Miss Bautista to your last customers. You said that you served beer to 7 customers and you saidthey were your last and in fact, you just pointed them because they are here, is that correct?

"A Yes, sir.

"Interpreter

Witness pointing to the accused.

"Fiscal Dañosos

"Q Alright. How are you so sure that they were the last customers on that early morning of July 28, 1999 ataround 1:20 in the morning?

"A Because I was the one serving them and I was able to talk to them, sir.



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"Q Can you recall who among the 7 whom you talked with first?

"A That one, sir.

"Interpreter

As witness pointing to the person who identified himself as Robert Alfonso when asked.

"Fiscal Dañosos

"Q Was he also the one who ordered beer from you?

"A That one, sir. He was the one who ordered the 7 beers.

"Interpreter

As witness pointing to the person who ordered 7 beers and identified himself as Audie Dona.

x x x x x x x x x

"Fiscal Dañosos

"Q Is there anything unusual that happened?

"Court

Answer.

"A I did not notice anything unusual when I served beer, sir. Because after I gave them a bottle of beer, after thatthey have put their beers on a glass, sir.

x x x x x x x x x

"Q After pouring beer to their glass, what else happened?

"A Nothing happened, sir. They just sat [there].

"Q Alright. You said that Ortega and San Juan [were] shot dead. Now, would you know or recall who shot Ortegaand San Juan?

"A I know who shot Ortega. But I don’t know who shot San Juan, sir.

"Q Alright, who shot Ortega?

"A That man, sir.

"Interpreter

Witness pointing to a person who identified himself as Diosdado Recepcion when asked.

x x x x x x x x x

"Fiscal Dañosos



85

"Q Alright. We go back Miss Witness to the 7 customers that you served beer. Now, [these] 7 customers that you[said] became your last customer[s] that evening, would you be able to identify or recognize their faces if you seethem again?

"A Yes, sir.

x x x x x x x x x

"Court

Teka, isa-isahin mo. Sige.

"Interpreter

"As witness pointing to Diosdado Recepcion, Alfredo Baracas, Audie Dona, Robert Alfonso, Eduardo Palacpac,Joemari delos Reyes, Dominador Recepcion.

"Fiscal Dañosos

"Q Thank you Miss Witness. Alright, Miss Bautista, do you recall if all or anyone of these 7 customers that youhave just identified were old or former customers of Sabungan Restaurant?

"A Not our former customers, sir."7

Testimony of Marie Flamiano

"Asst. Chief Pros. Mariano

Ms. Witness, you said you are a waitress at Sabungan Restaurant, how long have you been a waitress thereat?

"A For 7 months, now, sir.

"Q Do you remember having reported for work on the evening of July 27, 1999?

"A Yes, sir.

"Q And what is your working hours at the Sabungan Restaurant?

"A From 6:00 p.m., sir.

"Q In the evening of July 27, 1999?

"A 6:00 p.m., sir.

"Q Up to what time?

"A Up to 2:00 a.m., sir.

"Q In the early morning of July 28, 1999 at about 1:20, do you recall of any unusual incident that occurred inSabungan Restaurant?

"A Yes, sir.

"Q What was that incident?



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"A They shot somebody, sir.

"Q Who shot somebody?

"A They are here in Court, sir.

"Q Whom did you see shooting somebody at that time?

"A Para silang walang awang namaril…..

"Atty. Ongteco

Your Honor, the answer is irresponsive.

"Court

Let it remain, just answer what is being asked of you.


You said that there were persons who shot individuals in Sabungan, how many were they?

"A Seven (7), sir.

"Q Now, if they are here in Court, will you be able to recognize them?

"A Yes, sir.

"Q Will you point to them if they are here in Court? "Interpreter

Witness is pointing to 7 male persons inside this Courtroom, who when asked their names,answered.….Diosdado Recepcion, Alfredo Baracas, Joemari delos Reyes, Bernardo Ranara, DominadoRecepcion, Robert Alfonso and Audie Dona.


These 7 persons whom you identified, do you know what particular acts they did at the Sabungan incident?

"A They were shooting.

x x x x x x x x x

"Q Aside from the fact that you saw them with guns, what else did you see?

"A I saw the dead person outside, that person was already kneeling and begging for life but they still killed thatperson.

"Q And do you know who shot that person who was already kneeling?

"A The first person I pointed out in Court.

"Q And you are referring to?

"A Diosdado Recepcion, sir."8



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On cross-examination, this witness elaborated:

"Q And what could be your basis in pointing to Diosdado Recepcion as well as to accused Alfredo Baracas andthe rest, when you did not see who shot whom?

"A Because I saw them, sir.

"Q How far were you from these two accused that I mentioned during the shooting incident?

"A About 7 to 8 meters, sir.

"Q At that time the shooting incident occurred, what was your duty, if ever?

"A Because it was almost our closing time, I was just sitting, I have nobody to serve.

"Q When these 7 persons entered, were there other customers in the establishment?

"A Yes, sir.

x x x x x x x x x

"Q In other words, when you scampered outside, you did not see with particularity the accused shooting thevictim, is that correct?

"A While I was running, I saw them, they were shooting the victims, sir.

"Q You mean to tell me that during the time you were running outside, your head was turning back to where theaccused were situated shooting?

"A Yes, sir. (Witness is pointing as to the direction of the door of the restaurant)

"Q With that distance you are pointing to, to the corner of this room, you could have not ascertain[ed] MrDiosdado Recepcion holding a gun and shooting at somebody, is that correct?

"A I saw him, sir.

"Q In fact in your testimony, you cannot identify whether it was a short gun or a long gun?

"A Yes, sir, I could not identify the kind of guns they were using.

"Q Because you became very scared, frightened and nervous that is why you scampered outside?

"A Yes, sir.

"Q And also because of that nervousness and fright that you experienced, you are in doubt whether it was reallyDiosdado Recepcion whom you saw?

"A I saw him sir. (Siya po).

"Q That incident on July 28, 1999 was the first time that you saw this person whom you pointed as DiosdadoRecepcion, is that right?

"A Yes, sir.



88

"Q So, how can you be very sure that it was him who was holding a gun and shooting at somebody when you saidthat was the first time that you saw him and your distance was quite far and likewise you cannot determine orascertain whether he was holding a long gun or short gun?

"A Because I saw them standing, sir.

"Q You mean to tell me that aside from Diosdado Recepcion, all the 7 accused were all standing?

"A Yes, sir, they were all standing.

"Q And you also would like to impress before this Court that all the 7 accused were holding a gun and were allstanding and were all shooting at somebody?

"A I am not sure but all of them stood up and shot somebody." 9

Testimony of Jojo Paraiso

"Q Now, on the said date, July 28, 1999 at around 1:30 in the morning, do you still remember your whereabouts?

"A Yes, sir.

"Q Where were you?

"A I was at Sabungan Restaurant, sir.

"Q Accordingly, you were on duty on said date, July 28, 1999. Why were you at Sabungan Fastfood?

"A I was already off-duty at that time, sir.

"Q Now, who were with you at Sabungan Restaurant, if any?

"A We were 5, sir.

"Q Please tell us their names or some of them?

"A Our Asst. OIC, Benjamin Valdez, Fisaret, Daniel Aycardo, Jimmy Serrano and myself, sir.

"Q Would I get from you that all these companions of yours were also security guards?

"A Yes, sir.

"Fiscal Bajar

While you and your 4 other companions were inside the Sabungan Restaurant on July 28, 1999 at around 1:30 inthe early morning, do you remember any unusual incident that happened inside or outside thereat?

"A Yes, sir.

"Q But before that, what were you and your other 4 companions doing at the Sabungan Restaurant on the wee-hours of July 28, 1999?

"A We were having a drinking spree, sir.

"Q What was that unusual incident that happened inside the Sabungan Restaurant?



89

"A A shooting incident suddenly took place and then we dropped ourselves on the ground because of thatshooting incident, sir.

"Q But before that shooting incident, do you recall what particular place inside the Sabungan Restaurant were youseated?

"A Yes, sir.

"Q Where were you particularly seated?

"A Near the side of the Sabungan Fastfood and we were in front of the videoke machine, sir.

"Q When you said in front you were just very near?

"A Yes, sir.

"Q Now, [was] there any other persons inside the Sabungan Fastfood aside from you and your companions?

"A Yes, sir.

"Q How many, if you remember?

"A We were 9, sir.

"Court

And aside from the 5 of them?

"A There were 9 customers in all in that restaurant, sir.

"Court

"Q Including you or excluding you?

"A Including me, sir. We were 9 customers.

"Fiscal Bajar

"Q How about the non-customers?

"A 7, sir.

"Q And what were [these] non-customers doing inside the Sabungan Restaurant?

"A They also ordered beer and they also posed as customers, sir.

But they were not able to drink beer and when they ordered they already fired their guns, sir.

"Fiscal Bajar

"Q Now, where were [these] other non-customers who were ordering beers situated inside the SabunganRestaurant in relation to where you were seated?



90

"A They positioned themselves at the center of the videoke machine but at first they were together and then theyordered, the 3 separated from the group, sir.

"Q And how far was your table from this table of the non-customers?

"A About 3 meters away from our table, sir.

x x x x x x x x x

"Fiscal Bajar

"Q Okay. Now, after the group parted ways and the 3 occupied another table, what happened?

"A 3 minutes after, the 3 separated from the group and the shooting started, sir.

"Q And where did the shooting come from?

"A From the 3 persons who separated from the group, sir.

"Q Why did you say that it came from the 3 persons?

"A Because after hearing the first shot, I looked at that direction, sir.

"Q And were you able to see the firearms used in firing the shots?

"A I saw a light or spark that came out from the nozzle of the gun after I heard the shot, sir.

"Q And to what direction does the firing directed or pointed to?

"A To the persons they shot, sir.

"Q Where were [these] persons firing located?

"A They were seated because they were also drinking, sir.

"Q In relation to where you were seated and drinking, where were these persons located?

"A They were at the side of the restaurant and near the table who fired the shots, sir.

"Q And how many table[s] were [occupied by these] persons and to where the firing was directed?

"A Only one (1), sir.

x x x x x x x x x

"Fiscal Bajar

"Q Now, how many shots did you hear?

"A Many, sir. And I could not count it, sir.

"Q And how about you, what did you do when you heard this successive shots from the table of this 3 persons?

"A One of them shouted ‘dapa,’ that is why I hid myself under the table, sir.



91

"Q Now, how about your other 4 companions, what did they do after you dropped yourself [on] the ground?

"A The other one who was shot remained seated in front of his table. But my other 3 companions docked on thetable, sir.

"Q And what happened to that person who was shot? That [lone] person that according to you who was shot?

"A He died, sir.

"Q And after you have ‘yuko,’ did you notice what happened next?

"A I looked outside, sir. And then I found out that my [companion was] shot and then the one beside him was shotnext, sir.

"Q Now, where did this person who shot your companions come from because, according to you, you werelooking outside?

"A That person who shot my companion was near the table of my other companion that was shot and the distanceof my companion from the one who shot him was only about a meter away, sir.

"Q When you said companion who was shot, you referring to the one who transferred to another table?

"A Yes, sir. Our companion, sir.

x x x x x x x x x

"Q So, after you saw your companions shot, what did you do, if any?

"A I remained there under the table but sometimes I would look and sometimes I would bow my head.

"Q And to whom were you looking at?

"A To our companions, sir.

"Q And do you remember how many times [you performed] that ‘yuko, tingin, yuko, tingin?’

"A Whenever I noticed that they were looking at me, I [would] look down or bow my head, sir.

"Court

What do you mean ‘they?’

"A The one who [shot] my companions, your Honor.

"Fiscal Bajar

"Q And how far was this person who [shot] your companions from you who was looking at him and to the one wholooked at you?

"A About 4 meters, sir.

"Q Now, if that person is in Court, would you be able to identify him?

"A Yes, sir.



92

"Q Please point to him if he is around? You [tap] his shoulder, if you want?

"A Yes, sir. This one, sir.

"Interpreter

Witness tapped the shoulder of Robert Alfonso.

x x x x x x x x x

"Q Could you recognize anyone of them?

"A The one who shot our companions and he was with the 4 persons in that table, sir.

"Q So, the question is if you have recognized anyone of the persons who remained in the table?

"A Yes, sir. The one who came out last after the shooting, sir. But when he came out he fired a gun.

"Q If that last person you saw was on their way out from the Sabungan Restaurant is in Court, can you point tohim? Please step down and tap the shoulder if he is around?

"A Yes, sir. This one, sir.

"Interpreter

As witness stepped down from the witness stand and tapped the shoulder of the accused Joemari Delos Reyes.

x x x x x x x x x

"Q Now, please demonstrate to us how your companion was shot by Robert Alfonso?

"A Like this, sir. The accused was in the standing position when he fired [at] my companion at a distance of one(1) meter. And after shooting my companion, that gun man fired again at a man beside my companion, sir.

"Q And what was the position of your companion when he was fired upon?

"A He was seated, sir. -

"Q And what was then your position when you saw your companion being shot?

"A I was under the table but I was looking at their direction, sir." 10

On cross-examination, Paraiso continued:

"Q Mr. Witness, you said that the shooting incident happened at 1:30 in the early morning of July 28, 1999. Whattime did you start drinking at the Sabungan Restaurant?

"A About 12:45 a.m., sir.

"Q How many bottles of what were you drinking?

"A Beer, sir.

"Q How many bottles of beer have you already consumed?



93

"A During the shooting incident 2 bottles, sir.

"Q Now, according also to you it was the 3 men who separated from the larger group [who] transferred to anothertable?

"A Yes, sir.

"Q And it was after about 15 minutes that one of them started shooting?

"A Yes, sir.

x x x x x x x x x

"Q How did you position yourself when you hid yourself under the table? How did you position yourself? Did thetable completely cover you?

"A The table completely covered me, sir.

"Q Could you say that you were not shot because you were not seen by the gunman?

"A Yes, sir. I know that they did not notice me there under the table, sir. Maybe if they noticed me that I was thereunder the table looking at them, maybe they would shoot me, sir.

"Q So, we can presume that you were not shot because you were not seen by the gunman?

"A Yes, sir.

"Q You were not seen because the table was about 3 x 3 ft. Do you mean to tell us Mr. Witness that 3 ft. x 3 ft.table was able to accommodate all 5 of you?

"A Yes, sir.

"Q Now, you were also not seen by the gunman because the table was covered by the table cloth?

"A No cover, sir.

"Q You felt that at that time that you present yourself under the table was not detected by the gunman becausenone of them noticed you under the table?

"A I know that I was [not] noticed by them, sir. Because they have noticed me under the table and they know that Iwas looking at them, they will shoot me, sir."11

Testimony of Jhosa Reyes

"Q In the early morning of July 28, 1999, do you remember of any unusual incident that happened at your place owork?

"A Yes, sir.

"Q What was that incident, if you can still recall?

"A There was a shooting incident, sir.

"Q Where was that shooting incident?



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"A In Sabungan, sir, in front of the place where I work.

"Q How far is that Sabungan from your place of work?

"A Across the highway, sir.

"Q Do you know who were the persons who fired their guns at Sabungan?

"A Yes, sir.

"Q Why do you know these persons?

"A Because the persons who fired their guns were our customers first before they transferred to Sabungan, sir.

"Q How often do you see these persons at your dining place?

"A Twice, sir.

"Q When was the first time that you saw them?

"A Every week, sir.

"Q What were they doing when they [went] to your place?

"A They [drank], sir.

"Q How many are these persons, if your can remember?

"A Because the 3 persons used to go to our place but recently they were 4 already but the other one was notdrinking, sir, just [went] back and forth.

"Q These customers whom you said were the ones who started shooting at Sabungan, who were these persons,if you know?

"A I was able to recognize Ricky, Edwin.

"Q Who else? I thought you said there were 4 of them. "Court

The question [was], who fired the gun?

"FISCAL MARIANO

"Q Who were these persons who fired the gun?

"Court

Ricky, Edwin, sino pa?

"Witness

Those are the only two but almost all of them, Your Honor.

"Fiscal Mariano



95

If they are in Courtroom, will you be able to identify them?

"A Yes, sir.

"Q Please point them out.

"Atty. Ongteco

May we request that the witness tell the Court who is Ricky, Edwin?

"Court

Unahin si Ricky. Tumayo ang itinuro.

"Mr. dela Cruz

Witness pointed to a person who when asked of his name, answered to the name of Robert Alfonso.

"Court

Sino pa? Iyong bumaril, ha?

"Mr. dela Cruz

Witness pointed to a person who when asked of his name answered to the name of Joemari delos Reyes.

"Court

Sino pa?

"Mr. dela Cruz

Witness pointed to a person who when asked of his name answered to the name of Eduardo Palacpac." 12

Testimony of Ruben Labiata

"Q Mr. Labjata, will you tell this Honorable Court where were you in the early morning of July 28, 1999?

"A I was in Dagohoy with my jeepney waiting for passengers, sir.

"Q More or less, what time was that when you were with your jeep and waiting for passengers?

"A Between twelve and one a.m., sir.

"Q Do you recall, Mr. Labjata, of any unusual incident that occurred while waiting for passengers inside your jeepney?

"A While my jeep was parked there, I heard gunshots, sir.

"Q What else, if any, happened?

"A I was about to leave then and I have already passengers when some people suddenly arrived, sir.

x x x x x x x x x



96

"Q Did you, if you did notice if the 3 men who ordered immediately to let your passengers get off the jeep, if theywere armed?

"Atty. Ongteco

The same objection.

"Court

Same ruling, you are practically telling the witness that they were armed.

"Fiscal Dañosos

"Q Alright, while the 3 ordered you, did you notice anything, if you did any?

"A They were armed with guns, sir.

"Q What kind of guns, are they long arms or short arms?

"A Short arms, sir.

x x x x x x x x x

"Q Other than the 3 were there other persons who boarded your jeep?

"Atty. Ongteco

Same objection.

"Court

I will allow that.

"Atty. Ongteco

But that is the same banana because according to the witness, the 3 persons ordered the other passengers of the jeep to alight.

"Court

That was ordering the passengers to alight. The question now is, were there other persons who boarded your jeep. I will allow that. Answer that.

"Witness

When they told me to start the jeep, there were some persons who boarded the jeep, sir.

"Fiscal Dañosos

"Q Can you also tell the Honorable Court briefly what was the condition of this other group who also boarded?

"A They were also holding guns, sir.

"Q More or less, how many of them, the one[s] that boarded again?



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"A When I start[ed] the engine or already driving the jeep I saw 8, sir.

x x x x x x x x x

"Fiscal Dañosos

"Q When you were ordered to go, what did you do, if any?

"A I drove the jeep and then we made a turn near the Monumento Circle and proceeded to Edsa, sir.

"Q While you were proceeding to Edsa, did you notice anything unusual again?

"A Yes, sir, I noticed something unusual because while they were conversing to each other, I heard somebodysaid that ‘hindi ako ang bumaril.’

x x x x x x x x x

"Q From Petron Gas Station after you have gassed up, where did you go, if you went somewhere else?

"A We proceeded to the highway and then when we were’ already far from Petron, we made a left turn, sir.

"Q In what direction was this left [turn] going towards?’

"A I am not familiar with that route, sir.

"Q By the way, who among the group ordered you to what direction you [were] going to?

"A The one on my left side, sir.

"Q At that point of time, did the group tell you where you [were] going?

"A I do not know where to go but they ordered me and I followed them.

"Q Now, as a jeepney driver from Bulacan, can you tell the Honorable Court to what direction or route you weregoing?

"A After making a left turn, we passed by a 711 store, sir.

x x x x x x x x x

"Q While you were driving your jeep from Caloocan City to Tarlac, was there a time whether one of the group toldyou what to do?

"A Yes, sir. They poked a gun at me and told me to follow them whatever they wanted me to do, sir.

x x x x x x x x x

"Q While you were so scared because you were ordered and you realized that you reached Paniqui, was there aany moment while driving your jeep that you [felt] that you might be killed by this armed men?

"Atty. Ongteco

Leading.



98

"Fiscal Dañosos

I am asking for his feelings.

"Court

Did you ever feel that you might be killed? I will allow it.

"Witness

Because when we arrived [at] Tarlac, I heard one of them said ‘tumba.’

x x x x x x x x x

"Court

What did you do after hearing ‘tumba?’ Witness may answer.

"Witness

I told them, ‘Sir, maawa naman po kayo.’

"Fiscal Dañosos

"Q To whom did you address your words?

"A I just said, ‘Maawa naman po kayo, huwag ninyo po akong itumba because, I have a family.’

"Q After you told the group of the accused that, ‘Sir, huwag naman ninyo akong itumba,’ what else transpired?

"A One of them said, ‘in behalf of your family, bubuhayin ka namin for the sake of your family. (Alang-alang sa pamilya mo).

"Q What else, if any, after one of them told you that for the sake of your family, we will not kill you.

"A They told me that after reaching Tarlac, I will return back and without turning my head and do not report to thepolice or else they will shoot me.

"Q So, after you received those orders, what did you do, if any?

"A When they alighted from the jeep, I did not look at them. Once they alighted, I proceeded or went back toBulacan, sir.

"Q You said that after hearing their orders and reaching Paniqui, Tarlac, they went down. They alighted. Did all ofthem alight at the same time?

"A They alighted one after the other, sir.

"Q After they have alighted, what else if any transpired?

"A I left at a place where they alighted and then I went back to Bulacan, sir.

x x x x x x x x x



99

"Q When did you see them again?

"A After they were arrested from their hideout, sir.

"Q Where exactly did you meet them at Paniqui, Tarlac?

"A At the Municipal Hall of Paniqui, Tarlac, sir.

"Q More or less, what time was that already?

"A About past eight in the morning, sir.

"Q You said that at around past eight, you saw the group again who commandeered your jeep. How did you knowthat they were the same persons who commandeered your jeep that early morning of July 28, 1999?

"A Because I was able to recognize the faces of the others, sir.

"Q Mr. Witness, if you can see the faces of this group of persons who commandeered your jeep and whothreatened to kill you and who ordered you to stop at Paniqui, Tarlac, and which you saw again the following day

in the morning at Paniqui, Tarlac, would you be able to recognize their faces again if you will see these people?

"A Yes, sir.

"Q Now, will you please stand, Mr. Witness, and look around this courtroom and then point to the faces of thosepeople whom you said commandeered your jeep in that early morning?

"Mr. Nestor dela Cruz

The witness pointed to a man, who when asked of his name, answered to the name of Audie Dona.

"Fiscal Dañosos

Who else?

"Mr. dela Cruz

The witness pointed to a man, who when asked of his name, answered to the name of Alfredo Baracas.

"Fiscal Dañosos

Who else?

"Mr. dela Cruz

The witness pointed to a man, who when asked of his name, answered to the name of Diosdado Recepcion.

"Fiscal Dañosos

Who else?

"Mr. dela Cruz

The witness pointed to a man, who when asked of his name, answered to the name of Bernardo Ranara.



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"Fiscal Dañosos

Who else?

"Mr. dela Cruz

The witness pointed to a man, who when asked of his name, answered to the name of Eduardo Palacpac.

"Fiscal Dañosos

Who else?

"Mr. dela Cruz

The witness pointed to a man, who when asked of his name, answered to the name of Dominador Recepcion.

"Fiscal Dañosos

Who else?

"Mr. dela Cruz

The witness pointed to a man, who when asked of his name, answered to the name of Joemari delos Reyes.

"Fiscal Dañosos

Who else?

"Mr. dela Cruz

The witness pointed to a man, who when asked of his name, answered to the name of Robert Alfonso." 13

The eyewitnesses categorically identified the malefactors. The alleged discrepancies in the testimony of thewitnesses could easily be explained by the fact that they saw the incident from different angles of the shootingThe impact of events, as well as the unconscious working of the mind, it is said, could readily warp the humanperception in varying ways and degrees. Empiric data is yet to be found in order to accurately measure the valueof testimony of a witness other than its conformity to human behavior and the common experience of mankind. 14

The defense of alibi proffered by appellants is much too weak against the positive identification made by theeyewitnesses. It is not enough for an alibi to prosper to prove that the person raising it has been somewhere else whenthe crime is committed; it must likewise be demonstrated that it would have been physically impossible for him to be at thescene of the crime.15 Where there is the least chance to be present at the locus criminis, alibi will not hold muchwater.16 The bare evidence given by appellants to vouch their individual claims and establish alibi is far from being iron-

clad against the possibility of their having been at the crime scene.

Article 24817 of the Revised Penal Code, as amended by Republic Act (R.A.) No. 7659, makes a person guilty of murder ifthe killing is attended by, among other circumstances (but not here appurtenant), treachery or evident premeditation. Anessence of treachery is not only the swiftness and the surprise in the attack upon an unsuspecting victim but also theattendance of two concurring conditions, i.e., that the malefactor must have employed means, method or manner ofexecution that would insure his safety from the retaliatory act of the victim, and such means, method or form of executionare consciously and deliberately adopted by the malefactor. The qualifying circumstance of evident premeditation, on theother hand, requires that the execution of the criminal act be preceded by cool thought and reflection upon a resolution tocarry out the criminal intent during the space of time sufficient to arrive at a calm judgment. 18 Evident premeditation needsproof of the time when the intent to commit the crime is engendered in the mind of the accused, the motive which givesrise to it, and the means which are beforehand selected to carry out that intent. All such facts and antecedents which



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make notorious the pre-existing design to accomplish the criminal purpose must be proven to the satisfaction of thecourt.19

A scrutiny of the facts in evidence would indicate a scanty showing of the requirements to qualify the senseless killing ofthe five victims, either by treachery or by evident premeditation, to murder. While the attack upon the victims could bedescribed as being unexpected, somehow voiding any risk to the perpetrators thereof, there, is, however, insufficientevidence to indicate that the means adopted by the appellants have consciously been adopted. Mere suddenness of the

attack is not enough to show treachery; it should also be shown that the mode of attack has knowingly been intended toaccomplish the wicked intent.20 Neither would evident premeditation qualify the offense to murder in the absence of clearsubstantiation that the appellants have definitely resolved to commit the offense and have reflected on the means to bringabout the execution following an appreciable length of time.

The trial court, however, correctly appreciated conspiracy. The presence of conspiracy could be revealed by the acts donebefore, during and after the commission of the crime that made evident a joint purpose, concerted action and concurrenceof sentiments.21 The several acts of appellants during and after the shooting rampage disclosed a unison of objectives.Not one tried to stop the other in the perpetration of the crime. All were clearly in it together, performing specific acts withsuch closeness and coordination as would unmistakably show a common scheme. The attendance of treachery wouldthus render it unnecessary for the prosecution to show who among the conspirators actually hit and killed their victims,each of them being equally liable with the other in the perpetration of the crime.

Without proof of any circumstance that would qualify it, the killing could not amount to murder. Appellants should thus beheld liable only for homicide for the death of each of the victims. It was alleged in the accusatory information and shown inevidence that the crimes were indeed perpetrated with the use of unlicensed firearms. Pursuant to Republic Act829422 (amending Presidential Decree No. 1866), which was already in effect when the killing spree occurred, if "homicideor murder is committed with the use of an unlicensed firearm, such use of an unlicensed firearm shall be considered as anaggravating circumstance."

The trial court has convicted FOl Felipe dela Cruz as an accessory. This Court, however, finds no evidence to convict himas such accessory. Under Article 19 of the Revised Penal Code, the actual knowledge of the commission of the crime isan important element to being an encubridor, and the records are bereft of sound proof that dela Cruz has had knowledgeof any or all of the nefarious deeds earlier committed by his guests.

The arrest of appellants has been made in "hot pursuit," an exception from the rule that warrantless arrests are illegal. In

any event, appellants can no longer assail the illegality of their arrest since such a claim has not been brought up beforeor during the arraignment. The failure to timely move for the quashal of the Information on this basis operates as a waiverof the right to question the supposed irregularity of the arrest.23

The crime of homicide is punishable under Article 249 of the Revised Penal Code by reclusion temporal with a duration o12 years and 1 day to 20 years. Applying the Indeterminate Sentence Law, the appellants may be held to sufferimprisonment, as minimum, of anywhere within the full range of prision mayor of from 6 years and 1 day to 12 years andas maximum, to anywhere within the range of reclusion temporal in its maximum period, considering the attendance of theaggravating circumstance of "use of an unlicensed firearm," of from 14 years, 8 months and 1 day to 20 years.

The damages awarded by the trial court accord with prevailing jurisprudence except for the grant of P100,000.00 moraldamages to the heirs of each of the victims which amount should be reduced to P50,000.00.

WHEREFORE, the assailed judgment of the court a quo convicting appellants is AFFIRMED subject to the followingMODIFICATIONS, to wit:

Appellants Dominador Recepcion, Audie Dona, Alfredo Baracas, Eduardo Palacpac, Bernardo Ranara, Joemari delosReyes and Robert Alfonso are all hereby found guilty of homicide, on five counts, and each of them shall suffer fiveimprisonment terms, each for the death of their five victims, of the indeterminate penalty of 9 years and 1 day of prisionmayor, as minimum, to 16 years and 1 day of reclusion temporal in its maximum period, as maximum, and shall pay jointly and severally, the sums adjudged by the trial court except that the P100,000.00 moral damages to each victim isreduced, correspondingly, to P50,000.00.

Appellant Felipe dela Cruz is ACQUITTED for insufficiency of evidence. Costs de oficio. SO ORDERED.



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G.R. No. 101837 February 11, 1992

ROLITO GO y TAMBUNTING, petitioner,vs.THE COURT OF APPEALS, THE HON. BENJAMIN V. PELAYO, Presiding Judge, Branch 168, Regional Trial Court,NCJR Pasig, M.M., and PEOPLE OF THE PHILIPPINES, respondents.

FELICIANO, J.:

According to the findings of the San Juan Police in their Investigation Report, 1 on 2 July 1991, Eldon Maguan was drivinghis car along Wilson St., San Juan, Metro Manila, heading towards P. Guevarra St. Petitioner entered Wilson St., where itis a one-way street and started travelling in the opposite or "wrong" direction. At the corner of Wilson and J. Abad SantosSts., petitioner's and Maguan's cars nearly bumped each other. Petitioner alighted from his car, walked over and shotMaguan inside his car. Petitioner then boarded his car and left the scene. A security guard at a nearby restaurant wasable to take down petitioner's car plate number. The police arrived shortly thereafter at the scene of the shooting andthere retrieved an empty shell and one round of live ammunition for a 9 mm caliber pistol. Verification at the LandTransportation Office showed that the car was registered to one Elsa Ang Go.

The following day, the police returned to the scene of the shooting to find out where the suspect had come from; theywere informed that petitioner had dined at Cravings Bake Shop shortly before the shooting. The police obtained afacsimile or impression of the credit card used by petitioner from the cashier of the bake shop. The security guard of thebake shop was shown a picture of petitioner and he positively identified him as the same person who had shot Maguan.Having established that the assailant was probably the petitioner, the police launched a manhunt for petitioner.

On 8 July 1991, petitioner presented himself before the San Juan Police Station to verify news reports that he was beinghunted by the police; he was accompanied by two (2) lawyers. The police forthwith detained him. An eyewitness to theshooting, who was at the police station at that time, positively identified petitioner as the gunman. That same day, thepolice promptly filed a complaint for frustrated homicide 2 against petitioner with the Office of the Provincial Prosecutor ofRizal. First Assistant Provincial Prosecutor Dennis Villa Ignacio ("Prosecutor") informed petitioner, in the presence of hislawyers, that he could avail himself of his right to preliminary investigation but that he must first sign a waiver of theprovisions of Article 125 of the Revised Penal Code. Petitioner refused to execute any such waiver.

On 9 July 1991, while the complaint was still with the Prosecutor, and before an information could be filed in court, thevictim, Eldon Maguan, died of his gunshot wound(s).

Accordingly, on 11 July 1991, the Prosecutor, instead of filing an information for frustrated homicide, filed an informationfor murder 3 before the Regional Trial Court. No bail was recommended. At the bottom of the information, the Prosecutorcertified that no preliminary investigation had been conducted because the accused did not execute and sign a waiver ofthe provisions of Article 125 of the Revised Penal Code.

In the afternoon of the same day, 11 July 1991, counsel for petitioner filed with the Prosecutor an omnibus motion forimmediate release and proper preliminary investigation, 4 alleging that the warrantless arrest of petitioner was unlawfuand that no preliminary investigation had been conducted before the information was filed. Petitioner also prayed that he

be released on recognizance or on bail. Provincial Prosecutor Mauro Castro, acting on the omnibus motion, wrote on thelast page of the motion itself that he interposed no objection to petitioner being granted provisional liberty on a cash bondof P100,000.00.

On 12 July 1991, petitioner filed an urgent ex-parte motion for special raffle 5 in order to expedite action on theProsecutor's bail recommendation. The case was raffled to the sala of respondent Judge, who, on the same date,approved the cash bond 6 posted by petitioner and ordered his release. 7 Petitioner was in fact released that same day.

On 16 July 1991, the Prosecutor filed with the Regional Trial Court a motion for leave to conduct preliminaryinvestigation 8 and prayed that in the meantime all proceedings in the court be suspended. He stated that petitioner hadfiled before the Office of the Provincial Prosecutor of Rizal an omnibus motion for immediate release and preliminaryinvestigation, which motion had been granted by Provincial Prosecutor Mauro Castro, who also agreed to recommend



103

cash bail of P100,000.00. The Prosecutor attached to the motion for leave a copy of petitioner's omnibus motion of 11July 1991.

Also on 16 July 1991, the trial court issued an Order 9 granting leave to conduct preliminary investigation and cancellingthe arraignment set for 15 August 1991 until after the prosecution shall have concluded its preliminary investigation.

On 17 July 1991, however, respondent Judge motu proprio issued an Order, 10 embodying the following: (1) the 12 July

1991 Order which granted bail was recalled; petitioner was given 48 hours from receipt of the Order to surrender himself;(2) the 16 July 1991 Order which granted leave to the prosecutor to conduct preliminary investigation was recalled andcancelled; (3) petitioner's omnibus motion for immediate release and preliminary investigation dated 11 July 1991 wastreated as a petition for bail and set for hearing on 23 July 1991.

On 19 July 1991, petitioner filed a petition for certiorari , prohibition and mandamus before the Supreme Court assailingthe 17 July 1991 Order, contending that the information was null and void because no preliminary investigation had beenpreviously conducted, in violation of his right to due process. Petitioner also moved for suspension of all proceedings inthe case pending resolution by the Supreme Court of his petition; this motion was, however, denied by respondent Judge.

On 23 July 1991, petitioner surrendered to the police.

By a Resolution dated 24 July 1991, this Court remanded the petition for certiorari , prohibition and mandamus to the Courof Appeals.

On 16 August 1991, respondent Judge issued an order in open court setting the arraignment of petitioner on 23 August1991.

On 19 August 1991, petitioner filed with the Court of Appeals a motion to restrain his arraignment.

On 23 August 1991, respondent judge issued a Commitment Order directing the Provincial Warden of Rizal to admitpetitioner into his custody at the Rizal Provincial Jail. On the same date, petitioner was arraigned. In view, however, of hisrefusal to enter a plea, the trial court entered for him a plea of not guilty. The Trial court then set the criminal case forcontinuous hearings on 19, 24 and 26 September; on 2, 3, 11 and 17 October; and on 7, 8, 14, 15, 21 and 22 November1991. 11

On 27 August 1991, petitioner filed a petition for habeas corpus 12 in the Court of Appeals. He alleged that in view ofpublic respondent's failure to join issues in the petition for certiorari earlier filed by him, after the lapse of more than amonth, thus prolonging his detention, he was entitled to be released on habeas corpus.

On 30 August 1991, the Court of Appeals issued the writ of habeas corpus. 13 The petition for certiorari , prohibitionand mandamus, on the one hand, and the petition for habeas corpus, upon the other, were subsequently consolidated inthe Court of Appeals.

The Court of Appeals, on 2 September 1991, issued a resolution denying petitioner's motion to restrain his arraignment onthe ground that that motion had become moot and academic.

On 19 September 1991, trial of the criminal case commenced and the prosecution presented its first witness.

On 23 September 1991, the Court of Appeals rendered a consolidated decision 14 dismissing the two (2) petitions, on thefollowing grounds:

a. Petitioner's warrantless arrest was valid because the offense for which he was arrested and chargedhad been "freshly committed." His identity had been established through investigation. At the time heshowed up at the police station, there had been an existing manhunt for him. During the confrontation atthe San Juan Police Station, one witness positively identified petitioner as the culprit.

b. Petitioner's act of posting bail constituted waiver of any irregularity attending his arrest. He waived hisright to preliminary investigation by not invoking it properly and seasonably under the Rules.



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c. The trial court did not abuse its discretion when it issued the 17 July 1991 Order because the trial courthad the inherent power to amend and control its processes so as to make them conformable to law and justice.

d. Since there was a valid information for murder against petitioner and a valid commitment order (issuedby the trial judge after petitioner surrendered to the authorities whereby petitioner was given to thecustody of the Provincial Warden), the petition for habeas corpus could not be granted.

On 3 October 1991, the prosecution presented three (3) more witnesses at the trial. Counsel for petitioner also filed a"Withdrawal of Appearance" 15 with the trial court, with petitioner's conformity.

On 4 October 1991, the present Petition for Review on Certiorari was filed. On 14 October 1991, the Court issued aResolution directing respondent Judge to hold in abeyance the hearing of the criminal case below until further orders fromthis Court.

In this Petition for Review, two (2) principal issues need to be addressed: first, whether or not a lawful warrantless arresthad been effected by the San Juan Police in respect of petitioner Go; and second, whether petitioner had effectivelywaived his right to preliminary investigation. We consider these issues seriatim.

In respect of the first issue, the Solicitor General argues that under the facts of the case, petitioner had been validlyarrested without warrant. Since petitioner's identity as the gunman who had shot Eldon Maguan on 2 July 1991 had beensufficiently established by police work, petitioner was validly arrested six (6) days later at the San Juan Police Station. TheSolicitor General invokes Nazareno v . Station Commander, etc ., et al ., 16 one of the seven (7) cases consolidated with Inthe Matter of the Petition for Habeas Corpus of Roberto Umil, etc ., v . Ramos, et al . 17 where a majority of the Court uphelda warrantees arrest as valid although effected fourteen (14) days after the killing in connection with which Nazareno hadbeen arrested. Accordingly, in the view of the Solicitor General, the provisions of Section 7, Rule 112 of the Rules of Courwere applicable and because petitioner had declined to waive the provisions of Article 125 of the Revised Penal Code, theProsecutor was legally justified in filing the information for murder even without preliminary investigation.

On the other hand, petitioner argues that he was not lawfully arrested without warrant because he went to the policestation six (6) days after the shooting which he had allegedly perpetrated. Thus, petitioner argues, the crime had not been"just committed" at the time that he was arrested. Moreover, none of the police officers who arrested him had been aneyewitness to the shooting of Maguan and accordingly none had the "personal knowledge" required for the lawfulness ofa warrantees arrest. Since there had been no lawful warrantless arrest. Section 7, Rule 112 of the Rules of Court whichestablishes the only exception to the right to preliminary investigation, could not apply in respect of petitioner.

The reliance of both petitioner and the Solicitor General upon Umil v . Ramos is, in the circumstances of this casemisplaced. In Umil v . Ramos, by an eight-to-six vote, the Court sustained the legality of the warrantless arrests ofpetitioners made from one (1) to fourteen days after the actual commission of the offenses, upon the ground that suchoffenses constituted "continuing crimes." Those offenses were subversion, membership in an outlawed organization likethe New People's Army, etc. In the instant case, the offense for which petitioner was arrested was murder, an offensewhich was obviously commenced and completed at one definite location in time and space. No one had pretended thatthe fatal shooting of Maguan was a "continuing crime."

Secondly, we do not believe that the warrantees "arrest" or detention of petitioner in the instant case falls within the terms

of Section 5 of Rule 113 of the 1985 Rules on Criminal Procedure which provides as follows:

Sec. 5 Arrest without warrant; when lawful . — A peace officer or a private person may, without warrantarrest a person:

(a) When, in his presence, the person to be arrested has committed, is actually committing, or isattempting to commit an offense;

(b) When an offense has in fact just been committed, and he has personal knowledge of facts indicatingthat the person to be arrested has committed it; and



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(c) When the person to be arrested is a prisoner who has escaped from a penal establishment or placewhere he is serving final judgment or temporarily confined while his case is pending, or has escapedwhile being transferred from one confinement to another.

In cases falling under paragraphs (a) and (b) hereof, the person arrested without a warrant shall beforthwith delivered to the nearest police station or jail, and he shall be proceed against in accordance withRule 112, Section 7.

Petitioner's "arrest" took place six (6) days after the shooting of Maguan. The "arresting" officers obviously were notpresent, within the meaning of Section 5(a), at the time petitioner had allegedly shot Maguan. Neither could the "arrest"effected six (6) days after the shooting be reasonably regarded as effected "when [the shooting had] in fact just beencommitted" within the meaning of Section 5(b). Moreover, none of the "arresting" officers had any "personal knowledge" offacts indicating that petitioner was the gunman who had shot Maguan. The information upon which the police acted hadbeen derived from statements made by alleged eyewitnesses to the shooting — one stated that petitioner was thegunman; another was able to take down the alleged gunman's car's plate number which turned out to be registered inpetitioner's wife's name. That information did not, however, constitute "personal knowledge." 18

It is thus clear to the Court that there was no lawful warrantless arrest of petitioner within the meaning of Section 5 of Rule113. It is clear too that Section 7 of Rule 112, which provides:

Sec. 7 When accused lawfully arrested without warrant . — When a person is lawfully arrested without awarrant for an offense cognizable by the Regional Trial Court the complaint or information may be filed bythe offended party, peace officer or fiscal without a preliminary investigation having been first conductedon the basis of the affidavit of the offended party or arresting office or person

However, before the filing of such complaint or information, the person arrested may ask for a preliminaryinvestigation by a proper officer in accordance with this Rule, but he must sign a waiver of the provisionsof Article 125 of the Revised Penal Code, as amended, with the assistance of a lawyer and in case ofnon-availability of a lawyer, a responsible person of his choice. Notwithstanding such waiver, he mayapply 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, theaccused 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 inthis Rule. (Emphasis supplied)

is also not applicable. Indeed, petitioner was not arrested at all. When he walked into San Juan Police Station,accompanied by two (2) lawyers, he in fact placed himself at the disposal of the police authorities. He did not state that hewas "surrendering" himself, in all probability to avoid the implication he was admitting that he had slain Eldon Maguan orthat he was otherwise guilty of a crime. When the police filed a complaint for frustrated homicide with the Prosecutor, thelatter should have immediately scheduled a preliminary investigation to determine whether there was probable cause forcharging petitioner in court for the killing of Eldon Maguan. Instead, as noted earlier, the Prosecutor proceed under theerroneous supposition that Section 7 of Rule 112 was applicable and required petitioner to waive the provisions of Article125 of the Revised Penal Code as a condition for carrying out a preliminary investigation. This was substantive error, forpetitioner was entitled to a preliminary investigation and that right should have been accorded him without any conditions.Moreover, since petitioner had not been arrested, with or without a warrant, he was also entitled to be released forthwithsubject only to his appearing at the preliminary investigation.

Turning to the second issue of whether or not petitioner had waived his right to preliminary investigation, we note thatpetitioner had from the very beginning demanded that a preliminary investigation be conducted. As earlier pointed out, onthe same day that the information for murder was filed with the Regional Trial Court, petitioner filed with the Prosecutor anomnibus motion for immediate release and preliminary investigation. The Solicitor General contends that that omnibusmotion should have been filed with the trial court and not with the Prosecutor, and that the petitioner should accordinglybe held to have waived his right to preliminary investigation. We do not believe that waiver of petitioner's statutory right topreliminary investigation may be predicated on such a slim basis. The preliminary investigation was to be conducted bythe Prosecutor, not by the Regional Trial Court. It is true that at the time of filing of petitioner's omnibus motion, theinformation for murder had already been filed with the Regional Trial Court: it is not clear from the record whether



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petitioner was aware of this fact at the time his omnibus motion was actually filed with the Prosecutor. In Crespov . Mogul, 19 this Court held:

The preliminary investigation conducted by the fiscal for the purpose of determining whether a primafacie case exists to warranting the prosecution of the accused is terminated upon the filing of theinformation in the proper court. In turn, as above stated, the filing of said information sets in motion thecriminal action against the accused in Court . Should the fiscal find it proper to conduct a reinvestigation of

the case, at such stage, the permission of the Court must be secured . After such reinvestigation thefinding and recommendations of the fiscal should be submitted to the Court for appropriate action . While iis true that the fiscal has the quasi-judicial discretion to determine whether or not a criminal case shouldbe filed in court or not, once the case had already been brought to Court whatever disposition the fiscalmay feel should be proper in the case thereafter should be addressed for the consideration of the CourtThe only qualification is that the action of the Court must not impair the substantial rights of the accused.,or the right of the People to due process of law.

xxx xxx xxx

The rule therefore in this jurisdiction is that once a complaint or information is filed in Court anydisposition of the case [such] as its dismissal or the conviction or acquittal of the accused rests in thesound discretion of the Court . Although the fiscal retains the direction and control of the prosecution o

criminal cases even while the case is already in Court he cannot impose his opinion on the trial court. TheCourt is the best and sole judge on what to do with the case before it. . . . 20 (Citations omitted; emphasissupplied)

Nonetheless, since petitioner in his omnibus motion was asking for preliminary investigation and not for a re-investigation (Crespo v. Mogul involved a re-investigation), and since the Prosecutor himself did file with the triacourt, on the 5th day after filing the information for murder, a motion for leave to conduct preliminary investigation(attaching to his motion a copy of petitioner's omnibus motion), we conclude that petitioner's omnibus motion wasin effect filed with the trial court. What was crystal clear was that petitioner did ask for a preliminary investigationon the very day that the information was filed without such preliminary investigation, and that the trial court wasfive (5) days later apprised of the desire of the petitioner for such preliminary investigation. Finally, the triacourt did in fact grant the Prosecutor's prayer for leave to conduct preliminary investigation. Thus, even on the(mistaken) supposition apparently made by the Prosecutor that Section 7 of Rule 112 of the Revised Court was

applicable, the 5-day reglementary period in Section 7, Rule 112 must be held to have been substantiallycomplied with.

We believe and so hold that petitioner did not waive his right to a preliminary investigation. While that right is statutoryrather than constitutional in its fundament, since it has in fact been established by statute, it is a component part of dueprocess in criminal justice. 21 The right to have a preliminary investigation conducted before being bound over to trial for acriminal offense and hence formally at risk of incarceration or some other penalty, is not a mere formal or technical right; iis a substantive right. The accused in a criminal trial is inevitably exposed to prolonged anxiety, aggravation, humiliationnot to speak of expense; the right to an opportunity to avoid a process painful to any one save, perhaps, to hardenedcriminals, is a valuable right. To deny petitioner's claim to a preliminary investigation would be to deprive him the fullmeasure of his right to due process.

The question may be raised whether petitioner still retains his right to a preliminary investigation in the instant case

considering that he was already arraigned on 23 August 1991. The rule is that the right to preliminary investigation iswaived when the accused fails to invoke it before or at the time of entering a plea at arraignment.22 In the instant casepetitioner Go had vigorously insisted on his right to preliminary investigation before his arraignment .At the time of hisarraignment, petitioner was already before the Court of Appeals on certiorari , prohibition and mandamusprecisely askingfor a preliminary investigation before being forced to stand trial.

Again, in the circumstances of this case, we do not believe that by posting bail petitioner had waived his right topreliminary investigation. In People v . Selfaison, 23 we did hold that appellants there had waived their right to preliminaryinvestigation because immediately after their arrest, they filed bail and proceeded to trial " without previously claiming thathey did not have the benefit of a preliminary investigation ." 24 In the instant case, petitioner Go asked for release onrecognizance or on bail and for preliminary investigation in one omnibus motion. He had thus claimed his right topreliminary investigation before respondent Judge approved the cash bond posted by petitioner and ordered his release



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on 12 July 1991. Accordingly, we cannot reasonably imply waiver of preliminary investigation on the part of petitioner. Infact, when the Prosecutor filed a motion in court asking for leave to conduct preliminary investigation, he clearly ifimpliedly recognized that petitioner's claim to preliminary investigation was a legitimate one.

We would clarify, however, that contrary to petitioner's contention the failure to accord preliminary investigation, whileconstituting a denial of the appropriate and full measure of the statutory process of criminal justice, did not impair thevalidity of the information for murder nor affect the jurisdiction of the trial court. 25

It must also be recalled that the Prosecutor had actually agreed that petitioner was entitled to bail. This was equivalent toan acknowledgment on the part of the Prosecutor that the evidence of guilt then in his hands was not strong. Accordinglywe consider that the 17 July 1991 order of respondent Judge recalling his own order granting bail and requiring petitionerto surrender himself within forty-eight (48) hours from notice, was plainly arbitrary considering that no evidence at all —and certainly no new or additional evidence — had been submitted to respondent Judge that could have justified the recalof his order issued just five (5) days before. It follows that petitioner was entitled to be released on bail as a matter of right

The final question which the Court must face is this: how does the fact that, in the instant case, trial on the merits hasalready commenced, the Prosecutor having already presented four (4) witnesses, impact upon, firstly, petitioner's right toa preliminary investigation and, secondly, petitioner's right to be released on bail? Does he continue to be entitled to havea preliminary investigation conducted in respect of the charge against him? Does petitioner remain entitled to be releasedon bail?

Turning first to the matter of preliminary investigation, we consider that petitioner remains entitled to a preliminaryinvestigation although trial on the merits has already began. Trial on the merits should be suspended or held in abeyanceand a preliminary investigation forthwith accorded to petitioner. 26 It is true that the Prosecutor might, in view of theevidence that he may at this time have on hand, conclude that probable cause exists; upon the other hand, the Prosecutorconceivably could reach the conclusion that the evidence on hand does not warrant a finding of probable cause. In anyevent, the constitutional point is that petitioner was not accorded what he was entitled to by way of procedural dueprocess. 27 Petitioner was forced to undergo arraignment and literally pushed to trial without preliminary investigation, withextraordinary haste, to the applause from the audience that filled the courtroom. If he submitted to arraignment at trial,petitioner did so "kicking and screaming," in a manner of speaking . During the proceedings held before the trial court on23 August 1991, the date set for arraignment of petitioner, and just before arraignment, counsel made very clearpetitioner's vigorous protest and objection to the arraignment precisely because of the denial of preliminaryinvestigation. 28 So energetic and determined were petitioner's counsel's protests and objections that an obviously

angered court and prosecutor dared him to withdraw or walkout, promising to replace him with counsel de oficio. Duringthe trial, before the prosecution called its first witness, petitioner through counsel once again reiterated his objection togoing to trial without preliminary investigation: petitioner's counsel made of record his "continuing objection." 29 Petitionehad promptly gone to the appellate court on certiorari and prohibition to challenge the lawfulness of the procedure he wasbeing forced to undergo and the lawfulness of his detention. 30 If he did not walk out on the trial, and if he cross-examinedthe prosecution's witnesses, it was because he was extremely loath to be represented by counsel de oficio selected bythe trial judge, and to run the risk of being held to have waived also his right to use what is frequently the only test of truthin the judicial process.

In respect of the matter of bail, we similarly believe and so hold that petitioner remains entitled to be released on bail as amatter of right. Should the evidence already of record concerning petitioner's guilt be, in the reasonable belief of theProsecutor, strong, the Prosecutor may move in the trial court for cancellation of petitioner's bail. It would then be up tothe trial court, after a careful and objective assessment of the evidence on record, to grant or deny the motion for

cancellation of bail.

To reach any other conclusions here, that is, to hold that petitioner's rights to a preliminary investigation and to bail wereeffectively obliterated by evidence subsequently admitted into the record would be to legitimize the deprivation of dueprocess and to permit the Government to benefit from its own wrong or culpable omission and effectively to diluteimportant rights of accused persons well-nigh to the vanishing point. It may be that to require the State to accord petitionerhis rights to a preliminary investigation and to bail at this point, could turn out ultimately to be largely a ceremoniaexercise. But the Court is not compelled to speculate. And, in any case, it would not be idle ceremony; rather, it would bea celebration by the State of the rights and liberties of its own people and a re-affirmation of its obligation anddetermination to respect those rights and liberties.



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ACCORDINGLY, the Court resolved to GRANT the Petition for Review on Certiorari . The Order of the trial court dated 17July 1991 is hereby SET ASIDE and NULLIFIED, and the Decision of the Court of Appeals dated 23 September 1991hereby REVERSED.

The Office of the Provincial Prosecutor is hereby ORDERED to conduct forthwith a preliminary investigation of the chargeof murder against petitioner Go, and to complete such preliminary investigation within a period of fifteen (15) days fromcommencement thereof. The trial on the merits of the criminal case in the Regional Trial Court shall be SUSPENDED to

await the conclusion of the preliminary investigation.

Meantime, petitioner is hereby ORDERED released forthwith upon posting of a cash bail bond of One Hundred ThousandPesos (P100,000.00). This release shall be without prejudice to any lawful order that the trial court may issue, should theOffice of the Provincial Prosecutor move for cancellation of bail at the conclusion of the preliminary investigation.

No pronouncement as to costs. This Decision is immediately executory.

SO ORDERED.

Narvasa, C.J., Bidin, Medialdea, Romero and Nocon, JJ., concur.



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G.R. No. 95847-48. March 10, 1993.

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. GABRIEL GERENTE y BULLO, accused-appellant.


Public Attorney's Office for accused-appellant.

SYLLABUS

1. REMEDIAL LAW; CRIMINAL PROCEDURE; ARREST WITHOUT WARRANT; LAWFUL WHEN ARRESTINGOFFICER HAS PERSONAL KNOWLEDGE THAT THE PERSON TO BE ARRESTED HAS COMMITTED THE CRIMECASE AT BAR. — The policemen arrested Gerente only some three (3) hours after Gerente and his companions hadkilled Blace. They saw Blace dead in the hospital and when they inspected the scene of the crime, they found theinstruments 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, asone of the killers. Under those circumstances, since the policemen had personal knowledge of the violent death of Blaceand of facts indicating that Gerente and two others had killed him, they could lawfully arrest Gerente without a warrant. Ithey had postponed his arrest until they could obtain a warrant, he would have fled the law as his two companions did.

2. ID.; ID.; SEARCH AND SEIZURE; VALID EVEN WITHOUT A WARRANT WHEN MADE AS AN INCIDENT TOLAWFUL ARREST; RATIONALE. — The search conducted on Gerente's person was likewise lawful because it was madeas an incident to a valid arrest. This is in accordance with Section 12, Rule 126 of the Revised Rules of Court whichprovides: "Section 12. Search incident to lawful arrest. — A person lawfully arrested may be searched for dangerousweapons or anything which may be used as proof of the commission of an offense, without a search warrant." The friskand search of appellant's person upon his arrest was a permissible precautionary measure of arresting officers to protectthemselves, 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 wasruled that "the individual being arrested may be frisked for concealed weapons that may be used against the arrestingofficer and all unlawful articles found his person, or within his immediate control may be seized."

3. CRIMINAL LAW; CONSPIRACY; LIABILITY OF CONSPIRATORS; RULE; CASE AT BAR. — There is no merit in

appellant's allegation that the trial court erred in convicting him of having conspired and cooperated with Fredo and TotoyEchigoren to kill Blace despite the testimony of Dr. Valentin Bernales that the fracture on the back of the victim's skulcould have been inflicted by one person only. what Dr. Bernales stated was a mere possibility that only one persondropped the concrete hollow block on the head of the victim, smashing it. That circumstance, even if true, does notabsolve the other two co-conspirators in the murder of Blace for when there is a conspiracy to commit a crime, the act ofone conspirator is the act of all. The conspiracy was proven by the eyewitness-testimony of Edna Edwina Reyes, that sheoverheard the appellant and his companions conspire to kill Blace, that acting in concert, they attacked their victim with apiece of wood and a hollow block and caused his death. "When there is no evidence indicating that the principal witnessfor the prosecution was moved by improper motive, the presumption is that he was not so moved and his testimony isentitled to full faith and credit" (People vs. Belibet, 199 SCRA 587, 588). Hence, the trial court did not err in giving fulcredit to Edna Reyes' testimony.

4. ID.; CIVIL INDEMNITY FOR DEATH; INCREASED TO P50,000.00. — 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 toP50,000.00 in accordance with our ruling in People vs. Sison, 189 SCRA 643.

D E C I S I O N

GRIÑO-AQUINO, J p:

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



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"WHEREFORE, in view of the foregoing the Court finds the accused Gabriel Gerente in Criminal Case No. 10255-V-90guilty beyond reasonable doubt of Violation of Section 8 of R.A. 6425 and hereby sentences him to suffer the penalty ofimprisonment 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 thecrime 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 amountof P17,609.00 as funeral expenses, without subsidiary imprisonment in case of insolvency, and to pay the costs. Theaccused 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 asCriminal 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, unlawfullyand feloniously have in his possession and control dried flowering tops wrapped in foil with markings and place in atransparent 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 Crimina

Case No. 10256-V-90 in an information of the same date and signed by the same Assistant Provincial Prosecutor, asfollows:

"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 andagainst whom the preliminary investigation has not yet been terminated by the Office of the Provincial Prosecutor ofBulacan, 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 evidentpremeditation and treachery, attack, assault and hit with the said piece of wood and hollow block the said Clarito B. Blacehitting the latter on the different parts of his body, thereby inflicting serious physical injuries which directly caused thedeath 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 FredoEchigoren and Totoy Echigoren, started drinking liquor and smoking marijuana in the house of the appellant which isabout six (6) meters away from the house of the prosecution witness who was in her house on that day. She overheardthe 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. Theprosecution witness, Edna Edwina Reyes, testified that she witnessed the killing. Fredo Echigoren struck the first blowagainst Clarito Blace, followed by Totoy Echigoren and Gabriel Gerente who hit him twice with a piece of wood in thehead and when he fell, Totoy Echigoren dropped a hollow block on the victim's head. Thereafter, the three men draggedBlace 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 thePalo Police Detachment about a mauling incident. He went to the Valenzuela District Hospital where the victim wasbrought. He was informed by the hospital officials that the victim died on arrival. The cause of death was massive fractureof the skull caused by a hard and heavy object. Right away, Patrolman Urrutia, together with Police Corporal Romeo Limaand Patrolman Alex Umali, proceeded to Paseo de Blas where the mauling incident took place. There they found a pieceof 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 killedClarito.

The policemen proceeded to the house of the appellant who was then sleeping. They told him to come out of the houseand they introduced themselves as policemen. Patrolman Urrutia frisked appellant and found a coin purse in his pocket



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which contained dried leaves wrapped in cigarette foil. The dried leaves were sent to the National Bureau of Investigationfor 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, arestill 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 ofMurder.

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 oevidence 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 hisconstitutional right not to be subjected to illegal search and seizure, for the dried marijuana leaves were seized from himin 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 wereincident 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 aperson:

"(a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit anoffense;"

"(b) When an offense has in fact just been committed, and he has personal knowledge of facts indicating that the personto be arrested has committed it; . . .'

The policemen arrested Gerente only some three (3) hours after Gerente and his companions had killed Blace. They sawBlace dead in the hospital and when they inspected the scene of the crime, they found the instruments of death: a pieceof wood and a concrete hollow block which the killers had used to bludgeon him to death. The eye-witness, Edna EdwinaReyes, reported the happening to the policemen and pinpointed her neighbor, Gerente, as one of the killers. Under thosecircumstances, since the policemen had personal knowledge of the violent death of Blace and of facts indicating thatGerente 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 shotto 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 awarrant, would be to leave society, to a large extent, at the mercy of the shrewdest, the most expert, and the mostdepraved of criminals, facilitating their escape in many instances."

The search conducted on Gerente's person was likewise lawful because it was made as an incident to a valid arrest. Thisis in accordance with Section 12, Rule 126 of the Revised Rules of Court which provides:



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"SECTION 12. Search incident to lawful arrest. — A person lawfully arrested may be searched for dangerous weapons oranything 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 officersto protect themselves, for the person who is about to be arrested may be armed and might attack them unless he is firstdisarmed. 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 cooperatedwith Fredo and Totoy Echigoren to kill Blace despite the testimony of Dr. Valentin Bernales that the fracture on the back ofthe 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 ofthe victim, smashing it. That circumstance, even if true, does not absolve the other two co-conspirators in the murder oBlace for when there is a conspiracy to commit a crime, the act of one conspirator is the act of all. The conspiracy wasproven by the eyewitness-testimony of Edna Edwina Reyes, that she overheard the appellant and his companionsconspire to kill Blace, that acting in concert, they attacked their victim with a piece of wood and a hollow block and causedhis death. "When there is no evidence indicating that the principal witness for the prosecution was moved by impropermotive, 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 thedeath of Clarito Blace should be increased to P50,000.00 in accordance with our ruling in People vs. Sison, 189 SCRA643.

WHEREFORE, the appealed decision is hereby AFFIRMED, with modification of the civil indemnity awarded to the heirsof the victim, Clarito Blace, which is hereby increased to P50,000.00.

SO ORDERED.



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G.R. No. 148825 December 27, 2002

PEOPLE OF THE PHILIPPINES, appellee,vs.SUSAN CANTON, appellant.

D E C I S I O N

DAVIDE, JR., C.J.:

Appellant Susan Canton (hereafter SUSAN) was charged before the Regional Trial Court of Pasay City with the violationof Section 16 of Article III of the Dangerous Drugs Act of 1972 (Republic Act No. 6425), as amended, under anInformation1 whose accusatory portion reads as follows:

That on February 12, 1998 at the Ninoy Aquino International Airport, and within the jurisdiction of this Honorable Courtthe above named accused did then and there willfully, unlawfully and feloniously has in her possession NINE HUNDREDNINETY EIGHT POINT TWO EIGHT HUNDRED ZERO NINE (998.2809) GRAMS of methamphetamine hydrochloride, aregulated drug, without the corresponding prescription or license.

CONTRARY TO LAW.

The case was docketed as Criminal Case No. 98-0189 and raffled to Branch 110 of said court.

SUSAN entered a plea of not guilty upon her arraignment.

At the trial, the prosecution presented as witnesses Forensic Chemist Julieta Flores, lady frisker Mylene Cabunoc, andSPO4 Victorio de los Reyes.

For its part, the defense presented SPO2 Jerome Cause as its witness and had prosecution witness Mylene Cabunocrecalled to be presented as hostile witness. It opted not to let SUSAN take the witness stand.

The evidence for the prosecution established that on 12 February 1998, at about 1:30 p.m., SUSAN was at the Ninoy Aquino International Airport (NAIA), being a departing passenger bound for Saigon, Vietnam.2 When she passed throughthe metal detector booth, a beeping sound was emitted. Consequently, Mylene Cabunoc, a civilian employee of theNational Action Committee on Hijacking and Terrorism (NACHT) and the frisker on duty at that time, called her attention,saying "Excuse me ma’am, can I search you?"3 Upon frisking SUSAN, Mylene felt something bulging at her abdominaarea. Mylene inserted her hand under the skirt of SUSAN, pinched the package several times and noticed that thepackage contained what felt like rice granules.4 When Mylene passed her hand, she felt similar packages in front oSUSAN’s genital area and thighs. She asked SUSAN to bring out the packages, but the latter refused and said: "Money,money only." Mylene forthwith reported the matter to SPO4 Victorio de los Reyes, her supervisor on duty. 5

SPO4 De los Reyes instructed Mylene to call Customs Examiner Lorna Jalac and bring SUSAN to a comfort room for athorough physical examination. Upon further frisking in the ladies’ room, Mylene touched something in front of SUSAN’ssex organ. She directed SUSAN to remove her skirt, girdles and panty. SUSAN obliged. Mylene and Lorna discoveredthree packages individually wrapped and sealed in gray colored packing tape, which SUSAN voluntarily handed tothem.6 The first was taken from SUSAN’s abdominal area; the second, from in front of her genital area; and the third, fromher right thigh.7 Mylene turned over the packages to SPO4 De los Reyes. 8 The latter forthwith informed his superior officePolice Superintendent Daniel Santos about the incident. Together with SUSAN, they brought the gray plastic packs to thecustoms examination table, opened the same and found that they contained white crystalline substances9 which, whensubmitted for laboratory examination, yielded positive results for methamphetamine hydrochloride or shabu, a regulateddrug.10

For the defense, SPO2 Jerome Cause, an investigator of the First Regional Aviation Office, testified that no investigationwas ever conducted on SUSAN.11 However, SUSAN signed a receipt of the following articles seized from her: (1) threebags of methamphetamine hydrochloride or shabu approximately 1,100 grams; (2) one American passport bearingNumber 700389994; (3) one Continental Micronesia plane ticket with stock control number 0414381077; and (4) two



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panty girdles.12 He said that he informed SUSAN of her constitutional rights but admitted that she did not have a counselwhen she signed the receipt.13 Yet he told her that she had the option to sign or not to sign the receipt. 14

When recalled as witness for the defense, Mylene merely reiterated the circumstances surrounding the arrest and searchof SUSAN and the seizure of the prohibited items found on her person. 15

After consideration of the evidence presented, the trial court rendered a decision16 finding SUSAN guilty beyond

reasonable doubt of the offense of violation of Section 16 of Article III of Republic Act No. 6425, as amended, andsentencing her to suffer the penalty of reclusion perpetua and to pay a fine of P1 million.

SUSAN filed a Motion for Reconsideration and/or New Trial,17 alleging therein that the trial judge erred in (1) giving weightto the medical certificate executed by a certain Dr. Ma. Bernadette Arcena because it was not presented in court normarked or admitted, and is therefore hearsay evidence; (2) upholding the presumption of regularity in the performance ofduty of police officers, since lady frisker Mylene Cabunoc is not even a police officer; (3) making statements which gavethe impression that the burden of proof was shifted to the accused; and (4) deliberately ignoring the decisive issue of howthe evidence was secured. SUSAN also assailed the propriety of the search and seizure without warrant on the groundthat the seized items were not in plain view. Furthermore, alleging bias and prejudice on the part of the trial judge, SUSANfiled a motion to inhibit Judge Porfirio G. Macaraeg from resolving the Motion for Reconsideration and/or New Trial. 18

After conducting a hearing on 24 November 2000 to resolve appellant’s Motion for Reconsideration and/or New Trial, as

well as the Motion to Inhibit the Judge, the trial court issued an order 19 on 26 November 2001 denying the motions According to the trial judge (1) he explained to SUSAN’s counsel the effects of the filing of a motion for reconsiderationbut the latter chose to magnify the judge’s statement which was uttered in jest; (2) SUSAN’s conviction was not based onthe medical report which was not presented in court; (3) there was no violation of SUSAN’s constitutional rights becauseshe was never interrogated during her detention without counsel; and (4) the specimens seized from her were found aftera routine frisk at the airport and were therefore acquired legitimately pursuant to airport security procedures.

Unsatisfied with the decision of the trial court, SUSAN seasonably appealed to us, imputing to the trial court the followingerrors: (1) in justifying the warrantless search against her based on the alleged existence of probable cause; (2) in holdingthat she was caught flagrante delicto and that the warrantless search was incidental to a lawful arrest; (3) in not ruling thatthe frisker went beyond the limits of the "Terry search" doctrine; (4) in not ruling that SUSAN was under custodialinvestigation without counsel; (5) in admitting to the records of the case the report of Dr. Ma. Bernadette Arcena, whichwas not testified on or offered in evidence, and using the same in determining her guilt; (6) in justifying under the rule on

judicial notice its cognizance of the medical report that has not been offered in evidence; and (7) in applying the ruling inPeople v. Johnson.20

For assigned errors nos. 1 and 2, SUSAN asserts that the strip search conducted on her in the ladies’ room wasconstitutionally infirmed because it was not "incidental to an arrest." The arrest could not be said to have beenmade before the search because at the time of the strip search, the arresting officers could not have known whawas inside the plastic containers hidden on her body, which were wrapped and sealed with gray tape. At thatpoint then, they could not have determined whether SUSAN was actually committing a crime. The strip searchwas therefore nothing but a fishing expedition. Verily, it is erroneous to say that she was caught flagrante delictoand that the warrantless search was incidental to a lawful arrest.

For assigned error no. 3, SUSAN maintains that, following the doctrine enunciated in Terry v. Ohio,21 such stopand frisk search should have been limited to the patting of her outer garments in order to determine whether shewas armed or dangerous and therefore a threat to the security of the aircraft.

For assigned error no. 4, SUSAN alleges that from the moment frisker Mylene felt a package at her abdominalarea, started inquiring about the contents thereof, detained her, and decided to submit her to a strip search in theladies’ room, she was under custodial investigation without counsel, which was violative of Section 12, Article IIof the Constitution.

For assigned errors nos. 5 and 6, SUSAN assails the propriety of the admission of the medical report executed byDr. Ma. Bernadette Arcena on the ground that it was neither testified on nor offered in evidence.

Lastly, SUSAN questions the application of People v. Johnson 22 because of its sweeping statement allowingsearches and seizures of departing passengers in airports in view of the gravity of the safety interests involved.



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She stresses that the pertinent case should have been Katz v. United States,23 which upholds the Fourth Amendment of the United States of America that "protects people and not places."

In its Appellant’s Brief, the Office of the Solicitor General (OSG) declares that SUSAN was found flagrante delicto inpossession of a regulated drug without being authorized by law. Thus, the case falls squarely within the exception, beinga warrantless search incidental to a lawful arrest. Moreover, SUSAN voluntarily submitted herself to the search andseizure when she allowed herself to be frisked and brought to the comfort room for further inspection by airport security

personnel. It likewise maintains that the methamphetamine hydrochloride seized from SUSAN during the routine frisk atthe airport was acquired legitimately pursuant to airport security procedures.

Anent the admission of the medical certificate issued by Dr. Ma. Bernadette Arcena, the OSG argues that SUSAN’sconviction was not solely based on the questioned document but also on the fact that she was caught flagrante delicto inpossession of a regulated drug without being authorized by law. Consequently, it supports SUSAN’s conviction burecommends the reduction of the fine from P1 million to P100,000.

We affirm SUSAN’s conviction.

We do not agree that the warrantless search and subsequent seizure of the regulated drugs, as well as the arrest oSUSAN, were violative of her constitutional rights.

Sections 2 and 3(2) of Article III of the 1987 Constitution provides:

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

…

Sec. 3….

(2) Any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in anyproceeding.

What constitutes a reasonable or unreasonable search in any particular case is a judicial question, determinable from aconsideration of the circumstances involved. The rule is that the Constitution bars State intrusions to a person's bodypersonal effects or residence except if conducted by virtue of a valid search warrant issued in compliance with theprocedure outlined in the Constitution and reiterated in the Rules of Court. 24

The interdiction against warrantless searches and seizures is not absolute. The recognized exceptions established by jurisprudence are (1) search of moving vehicles; (2) seizure in plain view; (3) customs searches; (4) waiver or consentedsearches; (5) stop and frisk situations (Terry search); and (6) search incidental to a lawful arrest.25

I. The search conducted on SUSAN was not incidental to a lawful arrest.

We do not agree with the trial court and the OSG that the search and seizure conducted in this case wereincidental to a lawful arrest. SUSAN’s arrest did not precede the search. When the metal detector alarmed whileSUSAN was passing through it, the lady frisker on duty forthwith made a pat down search on the former. In theprocess, the latter felt a bulge on SUSAN’s abdomen. The strip search that followed was for the purpose oascertaining what were the packages concealed on SUSAN’s body. If ever at the time SUSAN was deprived ofher will and liberty, such restraint did not amount to an arrest. Under Section 1 of Rule 113 of the Revised Rulesof Criminal Procedure, as amended, arrest is the "taking of a person into custody in order that he may be boundto answer for the commission of an offense." lawphi1.ñet

As pointed out by the appellant, prior to the strip search in the ladies’ room, the airport security personnel had noknowledge yet of what were hidden on SUSAN’s body; hence, they did not know yet whether a crime was being



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committed. It was only after the strip search upon the discovery by the police officers of the white crystallinesubstances inside the packages, which they believed to be shabu, that SUSAN was arrested. The search cannottherefore, be said to have been done incidental to a lawful arrest. In a search incidental to a lawful arrest, the lawrequires that there be first a lawful arrest before a search can be made; the process cannot be reversed. 26

II. The scope of a search pursuant to airport security procedure is not confined only to search for weapons under the"Terry search" doctrine.

The Terry search or the "stop and frisk" situation refers to a case where a police officer approaches a person whois acting suspiciously, for purposes of investigating possibly criminal behavior in line with the general interest ofeffective crime prevention and detection. To assure himself that the person with whom he is dealing is not armedwith a weapon that could unexpectedly and fatally be used against him, he could validly conduct a carefullylimited search of the outer clothing of such person to discover weapons which might be used to assault him. 27

In the present case, the search was made pursuant to routine airport security procedure, which is allowed underSection 9 of Republic Act No. 6235 reading as follows:

SEC. 9. Every ticket issued to a passenger by the airline or air carrier concerned shall contain among others thefollowing condition printed thereon: "Holder hereof and his hand-carried luggage(s) are subject to search for , andseizure of, prohibited materials or substances. Holder refusing to be searched shall not be allowed to board the

aircraft," which shall constitute a part of the contract between the passenger and the air carrier.

This constitutes another exception to the proscription against warrantless searches and seizures. As admitted bySUSAN and shown in Annex "D" of her Brief, the afore-quoted provision is stated in the "Notice to All Passengers"located at the final security checkpoint at the departure lounge. From the said provision, it is clear that the search,unlike in the Terry search, is not limited to weapons. Passengers are also subject to search for prohibitedmaterials or substances.

In this case, after the metal detector alarmed SUSAN consented to be frisked, which resulted in the discovery ofpackages on her body. It was too late in the day for her to refuse to be further searched because the discovery othe packages whose contents felt like rice granules, coupled by her apprehensiveness and her obviously falsestatement that the packages contained only money, aroused the suspicion of the frisker that SUSAN was hidingsomething illegal. It must be repeated that R.A. No. 6235 authorizes search for prohibited materials orsubstances. To limit the action of the airport security personnel to simply refusing her entry into the aircraft andsending her home (as suggested by appellant), and thereby depriving them of "the ability and facility to actaccordingly, including to further search without warrant, in light of such circumstances, would be to sanctionimpotence and ineffectivity in law enforcement, to the detriment of society."28 Thus, the strip search in the ladiesroom was justified under the circumstances.

III. The ruling in People v. Johnson is applicable to the instant case.

The case of People v. Johnson, which involves similar facts and issues, finds application to the present case.That case involves accused-appellant Leila Johnson, who was also a departing passenger bound for the UnitedStates via Continental Airlines CS-912. Olivia Ramirez was then the frisker on duty, whose task was to friskdeparting passengers, employees and crew to check for weapons, bombs, prohibited drugs, contraband goods

and explosives. When Olivia frisked Leila, the former felt something hard on the latter’s abdominal area. Uponinquiry, Leila explained that she needed to wear two panty girdles, as she had just undergone an operation as aresult of an ectopic pregnancy. Not satisfied with the explanation, Olivia reported the matter to her superior, whothen directed her to take Leila to the nearest women’s room for inspection. In the comfort room, Leila was asked"to bring out the thing under her girdle." She acceded and brought out three plastic packs which contained a totalof 580.2 grams of methamphetamine hydrochloride or shabu. This Court ruled that the packs of"methamphetamine hydrochloride" seized during the routine frisk at the airport was acquired legitimately pursuantto airport security procedures and are therefore admissible in evidence against Leila. Corollarily, her subsequentarrest, although likewise without warrant, was justified, since it was effected upon the discovery and recovery ofshabu in her person flagrante delicto. The Court held in this wise:

Persons may lose the protection of the search and seizure clause by exposure of their persons or property to thepublic in a manner reflecting a lack of subjective expectation of privacy, which expectation society is prepared to



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recognize as reasonable. Such recognition is implicit in airport security procedures. With increased concern overairplane hijacking and terrorism has come increased security at the nation’s airports. Passengers attempting toboard an aircraft routinely pass through metal detectors; their carry-on baggage as well as checked luggage areroutinely subjected to x-ray scans. Should these procedures suggest the presence of suspicious objects, physicasearches are conducted to determine what the objects are. There is little question that such searches arereasonable, given their minimal intrusiveness, the gravity of the safety interests involved, and the reduced privacyexpectations associated with airline travel. Indeed, travelers are often notified through airport public address

systems, signs, and notices in their airline tickets that they are subject to search and, if any prohibited materials orsubstances are found, such would be subject to seizure. These announcements place passengers on notice thatordinary constitutional protections against warrantless searches and seizures do not apply to routine airportprocedures.

SUSAN’s reliance on Katz v. U.S.29 is misplaced. The facts and circumstances of that case are entirely differentfrom the case at bar. In that case, the accused was convicted in the United States District Court for the SouthernDistrict of California of transmitting wagering information by telephone. During the trial, the government waspermitted, over the accused’s objection, to introduce evidence of accused’s end of telephone conversationswhich was overheard by FBI agents who had attached an electronic listening and recording device to the outsideof the public telephone booth from which he placed his calls. The Court of Appeals for the Ninth Circuit affirmedthe conviction. On certiorari, however, the Supreme Court of the United States of America reversed the decision,ruling that antecedent judicial authorization, which was not given in the instant case, was a constitutiona

precondition of the kind of electronic surveillance involved. It ruled that what a person knowingly exposes to thepublic, even in his own house or office, is not a subject the Fourth Amendment protection, but what he seeks topreserve as private, even in an area accessible to the public, may be constitutionally protected.

The maxim – stare decisis et non quieta movere – invokes adherence to precedents and mandates not to unsettlethings which are established. When the court has once laid down a principle of law as applicable to a certain stateof facts, it must adhere to that principle and apply it to all future cases where the facts are substantially thesame.30 There being a disparity in the factual milieu of Katz v. U.S. and the instant case, we cannot apply to thiscase the ruling in Katz.

IV. The appellant, having been caught flagrante delicto, was lawfully arrested without a warrant.

Section 5, Rule 113 of the Rules of Court, as amended, provides:

SEC. 5. Arrest without warrant; when lawful. -- A peace officer or a private person may, without a warrant, arrest aperson:

(a) When, in his presence, the person to be arrested has committed, is actually committing, or isattempting to commit an offense;

(b) When an offense has just been committed and he has probable cause to believe based on personalknowledge 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 placewhere he is serving final judgment or is temporarily confined while his case is pending, or has escaped

while being transferred from one confinement to another.

In cases falling under paragraphs (a) and (b) above, the person arrested without a warrant shall be forthwithdelivered to the nearest police station or jail and shall be proceeded against in accordance with section 7 of Rule112.

The present case falls under paragraph (a) of the afore-quoted Section. The search conducted on SUSANresulted in the discovery and recovery of three packages containing white crystalline substances, which uponexamination yielded positive results for methamphetamine hydrochloride or shabu. As discussed earlier, suchwarrantless search and seizure were legal. Armed with the knowledge that SUSAN was committing a crime, theairport security personnel and police authorities were duty-bound to arrest her. As held in People v. Johnson, hesubsequent arrest without a warrant was justified, since it was effected upon the discovery and recovery of shabuin her person flagrante delicto.



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V. The constitutional right to counsel afforded an accused under custodial investigation was not violated.

Entrenched is the rule that the rights provided in Section 12, Article III of the Constitution may be invoked onlywhen a person is under "custodial investigation" or is "in custody interrogation."31 Custodial investigation refers tothe "questioning initiated by law enforcement officers after a person has been taken into custody or otherwisedeprived of his freedom of action in any significant way."32 This presupposes that he is suspected of havingcommitted a crime and that the investigator is trying to elicit information or a confession from him.33 And the righ

to counsel attaches upon the start of such investigation.34 The objective is to prohibit "incommunicado"interrogation of individuals in a police-dominated atmosphere, resulting in self-incriminating statements without fulwarnings of constitutional rights.35

In this case, as testified to by the lone witness for the defense, SPO2 Jerome Cause, no custodial investigationwas conducted after SUSAN’s arrest. She affixed her signature to the receipt of the articles seized from her, bubefore she did so, she was told that she had the option to sign or not to sign it. In any event, her signature to thepackages was not relied upon by the prosecution to prove its case. Moreover, no statement was taken from herduring her detention and used in evidence against her.36 Hence, her claim of violation of her right to counsel hasno leg to stand on.

VI. The admission of the medical report was erroneous.

SUSAN assails, on the ground of violation of the hearsay rule, the admission of the medical report on the physical andmedical examination conducted upon appellant’s request, which contained the following:

On subsequent examinations, she was seen behaved and cooperative. She related that she was an illegitimate daughter,married, but divorced in 1995. She verbalized, "I gamble like an addict. I gambled since I was young and I lost control ofmyself when I played cards. When I lost control, I want my money back. I owe other people lots of money. I lost all thecash of my husband. This is the first time I carried shabu. I need the money." She denied having any morbid thoughts andperceptual disturbances. (Emphasis supplied).

This argument is meritorious. The admission of the questioned document was erroneous because it was not properlyidentified. Nevertheless, even without the medical report, appellant’s conviction will stand, as the court’s finding of guiltwas not based on that document.

VII. SUSAN’s conviction and the penalty imposed on her are correct.

Having found the warrantless search and seizure conducted in this case to be valid, we do not hesitate to rule thatthat the three packages of shabu recovered from SUSAN are admissible in evidence against her. Supported bythis evidence and the testimonies of the prosecution witnesses, her conviction must inevitably be sustained.

Sections 16 and 20 of Article III of the Dangerous Drugs Act of 1972 (Republic Act No. 6425), as amended,provides:

SEC. 16. Possession or Use of Regulated Drugs.--The penalty of reclusion perpetua to death and a fine rangingfrom five hundred thousand pesos to ten million pesos shall be imposed upon any person who shall possess oruse any regulated drug without the corresponding license or prescription, subject to the provisions of Section 20

hereof.

…

SEC. 20. Application of Penalties, confiscation and Forfeiture of the Proceeds or Instruments of the Crime.--Thepenalties for offenses under Section 3,4,7, 8, and 9 of Article II and Sections 14, 14-A, 15 and 16 of Article III othis Act shall be applied if the dangerous drugs involved [are] in any of the following quantities:

…

3. 200 grams or more of shabu or methylamphetamine hydrochloride….



119

There being no aggravating nor mitigating circumstance, the proper penalty is reclusion perpetua pursuant to Article 63(2) of the Revised Penal Code.

As regards the fine, courts may fix any amount within the limits established by law. For possession of regulateddrugs, the law fixes the range of the fine from P500,000 to P10 million. In view of the net weight omethamphetamine hydrochlor ide found in the possession of SUSAN, the trial court’s imposition of fine in theamount of P1 million is well within the range prescribed by law.

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

Section 3 of Rule 126 of the Revised Rules of Criminal Procedure authorizes the confiscation of the following:

SEC. 3. Personal property to be seized. – A search warrant may be issued for the search and seizure of personaproperty:

(a) Subject of the offense;

(b) Stolen or embezzled and other proceeds, or fruits of the offense; or

(c) Used or intended to be used as the means of committing an offense.

,

Clearly, the seizure of SUSAN’s passport, plane tickets, and girdles exceeded the limits of the afore-quotedprovision. They, therefore, have to be returned to her.37

IN VIEW OF ALL THE FOREGOING, the judgment of the Regional Trial Court of Pasay City, Branch 110, in CriminaCase No. 98-0189 finding appellant SUSAN CANTON guilty beyond reasonable doubt of the violation of Section 16, Article III of the Dangerous Act of 1972 (Republic Act No. 6425), as amended, and sentencing her to suffer the penalty ofreclusion perpetua and to pay a fine of One Million Pesos (P1,000,000) and the costs is hereby AFFIRMED. Theappellant’s passport, plane tickets, and girdles are hereby ordered to be returned to her.

Costs de oficio.

SO ORDERED.



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THIRD DIVISION

[G.R. No. 99050. September 2, 1992.]

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. CONWAY B. OMAWENG, Accused-Appellant .

The Solicitor General for Plaintiff-Appellee.

Joel C. Obar for Accused-Appellant .

SYLLABUS

1. CRIMINAL LAW; DANGEROUS DRUG ACT; ILLEGAL POSSESSION OF PROHIBITED DRUGS; PROOF OF

OWNERSHIP THEREOF BY THE ACCUSED NOT REQUIRED. — The accused contends that the prosecutionfailed 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 transactionsenumerated therein, he must be the owner of the prohibited drug. 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 intransit or transports any dangerous drug or who acts as a broker in any of such transactions, in violation

of this Act. [Section 2 (m), R.A. No. 6425, as amended.] In People v. Alfonso, [186 SCRA (1990)] where

the accused was charged with the unlawful transportation of marijuana under the aforesaid Section 4, thisCourt ruled that ownership is not a basic issue

2. REMEDIAL LAW; EVIDENCE; CIRCUMSTANTIAL EVIDENCE COMBINATION THEREOF; WARRANTS ACONVICTION BEYOND REASONABLE DOUBT. — The facts, as proven by the prosecution, establish beyondcavil 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 thesaid 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 aconviction beyond reasonable doubt. Such circumstances, unrebutted by strong and convincing evidenceby the accused, even gave rise to the presumption that he is the owner of the prohibited drug. [Section

3(j), Rule 131, Rules of Court.]

3. CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHT AGAINST UNREASONABLE SEARCH & SEIZURE;WHEN DEEMED WAIVED. — Accused was not subjected to any search which may be stigmatized as a

violation of his Constitutional right against unreasonable searches and seizures. [Section 2, Article III,1987 Constitution.] 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." [Rodriguez v. Villamiel, 65 Phil. 230 (1937).] He willingly gave prior consent to the search andvoluntarily agreed to have it conducted on his vehicle and travelling bag. Thus, the accused waived hisright against unreasonable searches and seizures As this Court stated in People v. Malasugui: (63 Phil.

221, 226 [1936]. See also Vda. de Garcia v. Locsin, 65 Phil. 689 [1938]; People v. Donato, 198 SCRA 130[1991]; People v. Rodrigueza, 205 SCRA 791 [1992].)." . . 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 unreasonablesearch 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 theofficers 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 raiseany objection whatsoever.



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D E C I S I O N

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 complaintfiled with the Municipal Trial Court of Bontoc, Mountain Province on 12 September 1988. 1 Upon his failureto 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 Informationcharging the accused with the violation of Section 47 Article II of the Dangerous Drugs Act of 1972, asamended. The accusatory portion thereof reads:chanrobles virtual lawlibrary

"That on or about September 12, 1988, at Dantay, Bontoc, Mountain Province, and within the jurisdictionof this Honorable Court, the above-named accused, without being authorized by law, did then and therewillfully, unlawfully and feloniously dispatch in transit or transport in a Ford Fiera, owned and driven by

him, 10 1/4 kilos of processed marijuana in powder form contained in al plastic bags of different sizeswhich were placed in a travelling bag destained (sic) and intended for delivery, disposition and sale inSagada, Mountain Province, with full knowledge that said processed marijuana is (sic) prohibited drug orfrom 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 presentany 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:jgc:chanrobles.com.ph

"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 orderedconfiscated and forfeited in favor of the Government. Accordingly, it is further directed that such drugs soconfiscated and forfeited be destroyed without delay per existing rules and regulations on the

matter.chanrobles lawlibrary : rednad

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.



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"I

. . . IN CONVICTING THE ACCUSED DESPITE INSUFFICIENCY OF EVIDENCE TO PROVE HIS GUILT BEYONDREASONABLE DOUBT.

II

. . . IN NOT CONSIDERING THE JOINT CLARIFICATORY STATEMENT OF THE ARRESTING OFFICERS TOTHE EFFECT THAT THE ACCUSED IS NOT THE OWNER OF THE PROHIBITED DRUG SUBJECT OF THIS

CASE.

III

. . . 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 THEACCUSED 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 PCCommand 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 checkedall 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 andheaded 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 ofthe vehicle (TSN, November 9, 1989, pp. 6, 10, 11).chanrobles.com:cralaw:red

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, November9, 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 stuffconcluded 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 Bontocpoblacion 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 conductedmore 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 foundthem to be positive for hashish or marijuana (TSN, October 24, 1990, pp. 3, 5-81)." 9



123

Anent the first assigned error, the accused contends that the prosecution failed to prove that he is theowner 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 ofprohibited 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:jgc:chanrobles.com.ph

"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 awayto 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 anyoffense under this Section be the proximate cause of the death of a victim thereof, the maximum penalty

herein provided shall be imposed."cralaw virtua1aw library

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 v. 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.cralawnad

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 wasfound 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), thecombination of all these circumstances is such as to produce a conviction beyond reasonable doubt. Suchcircumstances, 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 statementcannot be used as a basis for exoneration because the very same officers who signed the same reiteratedon the witness stand their statements in their original affidavit implicating the accused, both the criminal

complaint before the Municipal Trial Court of Lontoc and the information in this case were based on thisoriginal affidavit. No probative value could be assigned to it not only because it was procured by thedefense 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:jgc:chanrobles.com.ph

"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 theinference that the accused Conway Omaweng is innocent as confirmed by no less than the persons whoapprehended 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 theidentity 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 thereinvestigation 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



124

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 thatthe 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 mereopinions 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 thetravelling 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 beingprosecuted 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 thatthe 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 theCourt." 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:chanrobles lawlibrary :

rednad

"PROSECUTOR AYOCHOK:chanrob1es virtual 1aw library

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 v. Malasugui: 17



125

". . . When one voluntarily submits to a search or consents to have it made of (sic) his person orpremises, 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 suchwaiver may be made either expressly or impliedly."cralaw virtua1aw library

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 wereidentified 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:chanrobles law library

"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; thug, 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."cralaw virtua1aw library

x x x

WHEREFORE, the decision of Branch 36 of the Regional Trial t of Bontoc, Mountain Province of 21 March

1991 in Criminal Case No. 713 finding the accused CONWAY B. OMAWENG guilty beyond reasonable doubtof the crime charged, is hereby AFFIRMED.

Costs against the accused.

SO ORDERED.



126

G.R. Nos. 136066-67 February 4, 2003

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,vs.BINAD SY CHUA, accused-appellant.

D E C I S I O N

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.A7659, and for Illegal Possession of ammunitions in two separate Informations which read as follows:

Criminal Case No. 96-5071

That on or about the 21st day of September 1996, in the City of Angeles, Philippines, and within the jurisdiction of thisHonorable Court, the above-named accused, did then and there willfully, unlawfully and feloniously have in his possessionand under his control two (2) plastic bags containing Methamphetamine Hydrochloride (SHABU) weighing more or lesstwo (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. 96-5132

That on or about the 21st day of September 1996, in the City of Angeles, Philippines, and within the jurisdiction of thisHonorable Court, the above-named accused, did then and there willfully, unlawfully and feloniously have in his possessionand under his control twenty (20) pieces of live .22 cal. ammunitions, without first having obtained a license or permit topossess or carry the same.

Accused-appellant pleaded "not guilty" on arraignment.1awphi1.nét 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 besynthesized as follows:

On September 21, 1996, at around 10:00 in the evening, SPO2 Mario Nulud and PO2 Emmeraldo Nunag received areport from their confidential informant that accused-appellant was about to deliver drugs that night at the Thunder InnHotel in Balibago, Angeles City. The informer further reported that accused-appellant distributes illegal drugs in differentkaraoke 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, P02Emmeraldo Nunag, SP01 Fernando Go, and some civilian assets, with SPO2 Mario Nulud, as team investigator. Thegroup of SPO2 Nulud, PO2 Nunag and the civilian informer positioned themselves across McArthur Highway near Bali HaiRestaurant, 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 parkednear the entrance of the Thunder Inn Hotel. After accused-appellant alighted from the car carrying a sealed Zest-O juicebox, 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 backpocket. Forthwith, SPO2 Nulud subjected him to a body search which yielded twenty (20) pieces of live .22 caliber firearmbullets from his left back pocket. When SPO2 Nunag peeked into the contents of the Zest-O box, he saw that it containeda crystalline substance. SPO2 Nulud instantly confiscated the small transparent plastic bag, the Zest-O juice box, thetwenty (20) pieces of .22 caliber firearm bullets and the car used by accused-appellant. Afterwards, SPO2 Nulud and theother police operatives who arrived at the scene brought the confiscated items to the office of Col. Guttierez at the PNPHeadquarters in Camp Pepito, Angeles City.3

When Col. Gutierrez opened the sealed Zest-O juice box, he found 2 big plastic bags containing crystalline substancesThe initial field test conducted by SPO2 Danilo Cruz at the PNP Headquarters revealed that the siezed items containedshabu.4 Thereafter, SPO2 Nulud together with accused-appellant brought these items for further laboratory examination tothe Crime Laboratory at Camp Olivas, San Fernando, Pampanga. After due testing, forensic chemist S/Insp. Daisy Babo

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concluded that the crystalline substances yielded positive results for shabu. The small plastic bag weighed 13.815 gramswhile 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 toManila. 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 manapproach and examine the inside of his car. When he called the attention of the onlooker, the man immediately pulled outa .45 caliber gun and made him face his car with raised hands. The man later on identified himself as a policeman. Duringthe course of the arrest, the policeman took out his wallet and instructed him to open his car. He refused, so thepoliceman took his car keys and proceeded to search his car. At this time, the police officer’s companions arrived at thescene in two cars. PO2 Nulud, who just arrived at the scene, pulled him away from his car in a nearby bank, while theothers searched his car.1awphi1.nét

Thereafter, he was brought to the Salakot Police Station and was held inside a bathroom for about fifteen minutes untiCol. Guttierez arrived, who ordered his men to call the media. In the presence of reporters, Col. Guttierez opened the boxand 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 InnHotel.7

On September 15, 1998 the Regional Trial Court of Angeles City, Branch 59, rendered a decision,8 the dispositive portionof 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 thecrime 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 ofreclusion 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 THEGUILT 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 inthe light of the testimony of SPO2 Nulud that prior to his arrest he has been under surveillance for two years, there wastherefore no compelling reason for the haste within which the arresting officers sought to arrest and search him without awarrant; 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 inadmissiblein evidence since they were obtained in violation of his constitutional rights against unreasonable search and seizures andarrest.



























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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 wilnot 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 theutmost 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 showingthat the trial judge overlooked, misunderstood, or misapplied some fact or circumstance of weight and substance thatwould have affected the case.11

In the case at bar, there appears on record some facts of weight and substance that have been overlookedmisapprehended, or misapplied by the trial court which casts doubt on the guilt of accused-appellant. An appeal in acriminal case opens the whole case for review and this includes the review of the penalty and indemnity imposed by thetrial court.12 We are clothed with ample authority to review matters, even those not raised on appeal, if we find that theirconsideration is necessary in arriving at a just disposition of the case. Every circumstance in favor of the accused shall beconsidered.13 This is in keeping with the constitutional mandate that every accused shall be presumed innocent unless hisguilt 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 beingcommitted by the accused and he was caught in flagrante delicto. Thus, the search made upon his personal effects x x xallow 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 personaaffects (sic) of the accused, however, under the circumstances of the case, there was sufficient probable cause for saidofficers 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 theThunder Inn Hotel and its vicinities. The police officer had to act quickly and there was no more time to secure a searchwarrant. 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 twodifferent 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 lawfularrest, 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 lawfuarrest. These two types of warrantless searches differ in terms of the requisite quantum of proof before they may bevalidly 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, thelegality of the arrest is questioned in a large majority of these cases, e.g., whether an arrest was merely used as a pretextfor conducting a search. In this instance, the law requires that there first be arrest before a search can be made —theprocess cannot be reversed. At bottom, assuming a valid arrest, the arresting officer may search the person of thearrestee and the area within which the latter may reach for a weapon or for evidence to destroy, and seize any money orproperty found which was used in the commission of the crime, or the fruit of the crime, or that which may be used asevidence, or which might furnish the arrestee with the means of escaping or committing violence.

x x x x x x x x x













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We now proceed to the justification for and allowable scope of a "stop-and-frisk" as a "limited protective search of outerclothing 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 inlight of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed andpresently dangerous, where in the course of investigating this behavior he identifies himself as a policeman and makesreasonable 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 searchof the outer clothing of such persons in an attempt to discover weapons which might be used to assault him. Such asearch 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 neverthelessholds that mere suspicion or a hunch will not validate a "stop-and-frisk". A genuine reason must exist, in light of the policeofficer’s experience and surrounding conditions, to warrant the belief that the person detained has weapons concealedabout him. Finally, a "stop-and-frisk" serves a two-fold interest: (1) the general interest of effective crime prevention anddetection, which underlies the recognition that a police officer may, under appropriate circumstances and in anappropriate manner, approach a person for purposes of investigating possible criminal behavior even without probablecause; and (2) the more pressing interest of safety and self-preservation which permit the police officer to take steps toassure himself that the person with whom he deals is not armed with a deadly weapon that could unexpectedly and fatallybe 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 warrantlessarrest 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 orhas just committed an offense in the presence of the arresting officer. Emphasis should be laid on the fact that the lawrequires that the search be incidental to a lawful arrest. Therefore it is beyond cavil that a lawful arrest must precede thesearch of a person and his belongings.17 Accordingly, for this exception to apply two elements must concur: (1) the personto be arrested must execute an overt act indicating that he has just committed, is actually committing, or is attempting tocommit 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-appellantarrived 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 actin a suspicious manner. For all intents and purposes, there was no overt manifestation that accused-appellant has justcommitted, 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 SPO2Nulud "hurriedly accosted"19 accused-appellant and later on "introduced themselves as police officers."20 Accusedappellant was arrested before the alleged drop-off of shabu was done. Probable cause in this case was more imaginedthan real. Thus, there could have been no in flagrante delicto arrest preceding the search, in light of the lack of an overtphysical act on the part of accused-appellant that he had committed a crime, was committing a crime or was going tocommit a crime. As applied to in flagrante delicto arrests, it has been held that "reliable information" alone, absent anyovert act indicative of a felonious enterprise in the presence and within the view of the arresting officers, is not sufficient toconstitute probable cause that would justify an in flagrante delicto arrest .21 Hence, in People v. Aminudin,22 we ruled tha"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 nooutward indication that called for his arrest. To all appearances, he was like any of the other passengers innocentlydisembarking from the vessel. It was only when the informer pointed to him as the carrier of the marijuana that hesuddenly became suspect and so subject to apprehension" (Emphasis supplied).

The reliance of the prosecution in People v. Tangliben23 to justify the police’s actions is misplaced. In the said case, basedon the information supplied by informers, police officers conducted a surveillance at the Victory Liner Terminal compoundin San Fernando, Pampanga against persons who may commit misdemeanors and also on those who may be engaged inthe traffic of dangerous drugs. At 9:30 in the evening, the policemen noticed a person carrying a red travelling bag whowas acting suspiciously. They confronted him and requested him to open his bag but he refused. He acceded later onwhen the policemen identified themselves. Inside the bag were marijuana leaves wrapped in a plastic wrapper. The policeofficers only knew of the activities of Tangliben on the night of his arrest.

































130

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 theirinformant has been telling them about the activities of accused-appellant for two years prior to his actual arrest onSeptember 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 pusherreckoning 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 thischinese drug pusher have been engaged pushing drugs here in Angeles City, you did not think of applying for asearch 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, isthat 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 Corollacar 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 youraffidavit?

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?



131

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 drugpusher.

Q. So you have been tailing this accused for quite a long time that you are very sure that what was brought byhim 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 isuntenable.

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 policeofficer to stop a citizen on the street, interrogate him, and pat him for weapon(s)25 or contraband. The police officer shouldproperly introduce himself and make initial inquiries, approach and restrain a person who manifests unusual andsuspicious conduct, in order to check the latter’s outer clothing for possibly concealed weapons.26 The apprehendingpolice officer must have a genuine reason, in accordance with the police officer’s experience and the surroundingconditions, 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, thepolicemen chanced upon the accused who had reddish eyes, walking in a swaying manner, and who appeared to be highon 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 ofthe accused and his companions, the fact that his companions fled when they saw the policemen, and the fact that thepeace 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 itemsfound in his possession. The apprehending police operative failed to make any initial inquiry into accused- appellant’sbusiness 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 procedureoutlined by jurisprudence and the law. There was, therefore, no genuine reasonable ground for the immediacy ofaccused-appellant’s arrest.

Obviously, the acts of the police operatives wholly depended on the information given to them by their confidentiainformant. Accordingly, before and during that time of the arrest, the arresting officers had no personal knowledge thaaccused-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 andconsequent search would still not be deemed a valid "stop-and frisk". For a valid "stop-and-frisk" the search and seizuremust precede the arrest, which is not so in this case. Besides, as we have earlier emphasized, the information about the
















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illegal activities of accused-appellant was not unknown to the apprehending officers. Hence, the search and seizure of theprohibited 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 possessionFirst, there was no valid intrusion. Second, the evidence, i.e., the plastic bags found in the Zest-O juice box whichcontained crystalline substances later on identified as methamphetamine hydrochloride (shabu) and the 20 rounds of .22caliber 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 onascertain that the crystalline substance was shabu. There was no clear showing that the sealed Zest-O juice boxaccused-appellant carried contained prohibited drugs. Neither were the small plastic bags which allegedly containedcrystalline substance and the 20 rounds of .22 caliber ammunition visible. These prohibited substances were not in plainview 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 acustoms search. It cannot even fall under exigent and emergency circumstances, for the evidence at hand is bereft of anysuch showing.1a\^/phi1.net

All told, the absence of ill-motive on the part of the arresting team cannot simply validate, much more cure, the illegality ofthe arrest and consequent warrantless search of accused-appellant. Neither can the presumption of regularity operformance 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’sconviction because, first, the presumption is precisely just that – a mere presumption. Once challenged by evidence, as inthis case, xxx [it] cannot be regarded as binding truth. Second, the presumption of regularity in the performance of officiafunctions cannot preponderate over the presumption of innocence that prevails if not overthrown by proof beyondreasonable doubt.

Furthermore, we entertain doubts whether the items allegedly seized from accused-appellant were the very same itemspresented at the trial of this case. The record shows that the initial field test where the items seized were identified asshabu, was only conducted at the PNP headquarters of Angeles City.33 The items were therefore not marked at the placewhere they were taken. In People v. Casimiro,34 we struck down with disbelief the reliability of the identity of theconfiscated 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 ofthe crime, but only at the narcotics office. There is thus reasonable doubt as to whether the item allegedly seized fromaccused-appellant is the same brick of marijuana marked by the policemen in their headquarters and given by them to thecrime laboratory.

The government’s drive against illegal drugs needs the support of every citizen. But it should not undermine thefundamental rights of every citizen as enshrined in the Constitution. The constitutional guarantee against warrantlessarrests and unreasonable searches and seizures cannot be so carelessly disregarded as overzealous police officers aresometimes 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 hemust, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its ownlaws, 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 CriminaCases 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 doubtConsequently, he is ordered forthwith released from custody, unless he is being lawfully held for another crime.

SO ORDERED.




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133

G.R. No. 113447 October 9, 1997

ALAIN MANALILI y DIZON, petitioner,vs.COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, respondents.

PANGANIBAN, J .:

When dealing with a rapidly unfolding and potentially criminal situation in the city streets where unarguably there is notime 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 respectand 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 thereversal 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 FiscaE. 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 thisHonorable Court, the above-named accused without any authority of law, did then and there wilfully, unlawfullyand feloniously have in his custody, possession and control crushed marijuana residue, which is a prohibited drugand 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 Courtof Caloocan City, Branch 124, acting as a Special Criminal Court, rendered on May 19, 1989 a decision 5 convictingappellant 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 beyondreasonable doubt of violation of Section 8, Article II, of Republic Act No. 6425, as amended (Illegal Possession ofMarijuana residue), and hereby sentences (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 8dated

May 31, 1989. On April 19, 1993, Respondent Court 9

promulgated its assailed Decision, denying the appeal and affirmingthe trial court: 10

ACCORDINGLY, the decision appealed from dated May 19, 1989 is hereby AFFIRMED in all respects. Costsagainst 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



134

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 KalookanCity Police Station were conducting a surveillance along A. Mabini street, Kalookan City, in front of the KalookanCity 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. Thesurveillance was being made because of information that drug addicts were roaming the area in front of theKalookan City Cemetery.

Upon reaching the Kalookan City Cemetery, the policemen alighted from their vehicle. They then chanced upon amale person in front of the cemetery who appeared high on drugs. The male person was observed to havereddish eyes and to be walking in a swaying manner. When this male person tried to avoid the policemen, thelatter approached him and introduced themselves as police officers. The policemen then asked the male personwhat he was holding in his hands. The male person tried to resist. Pat Romeo Espiritu asked the male person ifhe could see what said male person had in his hands. The latter showed the wallet and allowed Pat. RomeoEspiritu to examine the same. Pat. Espiritu took the wallet and examined it. He found suspected crushedmarijuana 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 wasturned over to Cpl. Wilfredo Tamondong for investigation. Pat. Espiritu also turned over to Cpl. Tamondong theconfiscated wallet and its suspected marijuana contents. The man turned out to be the accused ALAIN MANALILy DIZON.

Upon receipt of the confiscated suspected marijuana residue from Pat. Espiritu, Cpl. Tamondong wrapped thesame with a white sheet of paper on which he wrote "Evidence "A" 4/11/88 Alain Manalili". The white sheet ofpaper 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 achemical 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 (Exhibi"D") to the National Bureau of Investigation (NBI), including the subject marijuana residue for chemical analysisThe 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 residueat 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 sheidentified. (Exhibi"E") 13 Mrs. Pascual referred to the subject specimen as "crushed marijuana leaves" in her Certification dated April11, 1988 (Exhibit "F"). 14 These crushed marijuana leaves gave positive results for marijuana, according to theCertificate.

Mrs. Pascual also conducted a chromatographic examination of the specimen. In this examination, she also foundthat the "crushed marijuana leaves" gave positive results for marijuana. She then prepared a Final Report of heexaminations (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 CplTamondong. Upon receipt thereof, Cpl. Tamondong prepared a referral slip addressed to the City Fiscal ofKalookan City. (Exhibit "C")



135

On rebuttal, Pat. Espiritu testified that appellant was not riding a tricycle but was walking in front of the cemetery when hewas 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 AMabini street near the Kalookan City Cemetery on the way to his boarding house. Three policemen ordered thedriver of the tricycle to stop because the tricycle driver and his lone passenger were under the influence ofmarijuana. The policemen brought the accused and the tricycle driver inside the Ford Fiera which the policemenwere riding in. The policemen then bodily searched the accused and the tricycle driver. At this point, the accusedasked the policemen why he was being searched and the policemen replied that he (accused) was carryingmarijuana. However, nothing was found on the persons of the accused and the driver. The policemen allowed thetricycle driver to go while they brought the accused to the police headquarters at Kalookan City where they saidthey would again search the accused.

On the way to the police headquarters, the accused saw a neighbor and signalled the latter to follow him. Theneighbor thus followed the accused to the Kalookan City Police Headquarters. Upon arrival thereat, the accusedwas 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 wasfound, except for some dirt and dust. This prompted the companion of the neighbor of the accused to tell thepolicemen to release the accused. The accused was led to a cell. The policemen later told the accused that theyfound 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 tothe Ford Fiera. The accused was told by the policemen to call his parents in order to "settle" the case. Thepolicemen who led the accused to the Ford Fiera were Pat. Lumabas, Pat. Espiritu and Cpl. Tamondong. PatLumabas was the policeman who told the accused to call his parents. The accused did not call his parents and hetold 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 FiscalThere, the accused told the Fiscal that no marijuana was found on his person but the Fiscal told the accused notto 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 stoppedby policemen and then bodily searched on April 11, 1988, testified. He said that the policemen found nothingeither 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 PoliceHeadquarters on April 11, 1988. He said that the police searched the accused who was made to take off his pantsat 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 wereallowed to ply in front of the Caloocan Cemetery. 17

The Rulings of the Trail and the Appellate Courts

The trial court convicted petitioner of illegal possession of marijuana residue largely on the strength of the arrestingofficers' testimony. Patrolmen Espiritu and Lumabas were "neutral and disinterested" witnesses, testifying only on whattranspired during the performance of their duties. Substantially they asserted that the appellant was found to be inpossession 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 neithertook any legal action against the allegedly erring policemen nor moved for a reinvestigation before the city fiscal ofKalookan City.



136

On appeal, Respondent Court found no proof that the decision of the trial court was based on speculations, surmises orconjectures. On the alleged "serious" discrepancies in the testimonies of the arresting officers, the appellate court ruledthat the said inconsistencies were insubstantial to impair the essential veracity of the narration. It further found petitioner'scontention — that he could not be convicted of illegal possession of marijuana residue — to be without merit, because theforensic 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 theguilt 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 theprosecution 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 thepurpose of extorting money.

V

The Court of Appeals erred in not acquitting the accused when the evidence presented isconsistent with both innocence and guilt.

VI

The Court of Appeals erred in admitting the evidence of the prosecution which are inadmissible inevidence.

Restated more concisely, petitioner questions (1) the admissibility of the evidence against him, (2) the credibility ofprosecution witnesses and the rejection by the trial and the appellate courts of the defense of extortion, and (3) thesufficiency of the prosecution evidence to sustain his conviction.

The Court's Ruling

The petition has no merit.

First Issue: Admissibility of the Evidence SeizedDuring a Stop-and-Frisk

Petitioner protests the admission of the marijuana leaves found in his possession, contending that they were products oan illegal search. The Solicitor General, in his Comment dated July 5, 1994, which was adopted as memorandum forrespondent, counters that the inadmissibility of the marijuana leaves was waived because petitioner never raised thisissue in the proceedings below nor did he object to their admissibility in evidence. He adds that, evenassuming arguendo that there was no waiver, the search was legal because it was incidental to a warrantless arrest underSection 5 (a), Rule 113 of the Rules of Court.



137

We disagree with petitioner and hold that the search was valid, being akin to a stop-and-frisk. In the landmark caseof Terry vs. Ohio, 18 a stop-and-frisk was defined as the vernacular designation of the right of a police officer to stop acitizen on the street, interrogate him, and pat him for weapon(s):

. . . (W)here a police officer observes an unusual conduct which leads him reasonably to conclude in light of hisexperience that criminal activity may be afoot and that the persons with whom he is dealing may be armed andpresently 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 hisreasonable fear for his own or others' safety, he is entitled for the protection of himself and others in the area toconduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons whichmight be used to assault him. Such a search is a reasonable search under the Fourth Amendment, and anyweapon 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 anddetection allows a police officer to approach a person, in appropriate circumstances and manner, for purposes ofinvestigating possible criminal behavior even though there is insufficient probable cause to make an actual arrest. Thiswas the legitimate investigative function which Officer McFadden discharged in that case, when he approached petitionerand his companion whom he observed to have hovered alternately about a street corner for an extended period of timewhile not waiting for anyone; paused to stare in the same store window roughly 24 times; and conferred with a thirdperson. 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 thelimited search was the more immediate interest of the police officer in taking steps to assure himself that the person withwhom 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 ofsearches 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 judicialwarrant; otherwise, such search and seizure is unconstitutional and subject to challenge. 20Section 2, Article III of the 1987Constitution, gives this guarantee:

Sec. 2. The right of the people to be secure in their persons, houses, papers, and effects against unreasonablesearches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant orwarrant of arrest shall issue except upon probable cause to be determined personally by the judge afterexamination under oath or affirmation of the complainant and the witnesses he may produce, and particularlydescribing 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 thepoisonous tree," falling under the exclusionary rule:

Sec. 3. . . .

(2) Any evidence obtained in violation of . . . 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 tothe rule against warrantless search and seizure, viz .: "(1) search incidental to a lawful arrest, (2) search of movingvehicles, (3) seizure in plain view, (4) customs search, and (5) waiver by the accused themselves of their right againstunreasonable search and seizure." 22 In People vs. Encinada, 23 the Court further explained that "[i]n these cases, thesearch and seizure may be made only with probable cause as the essential requirement. Although the term eludes exactdefinition, probable cause for a search is, at best, defined as a reasonable ground of suspicion, supported bycircumstances sufficiently strong in themselves to warrant a cautious man in the belief that the person accused is guilty ofthe offense with which he is charged; or the existence of such facts and circumstances which could lead a reasonablydiscreet and prudent man to believe that an offense has been committed and that the item(s), article(s) or object(s) soughtin connection with said offense or subject to seizure and destruction by law is in the place to be searched."



138

Stop-and-frisk has already been adopted as another exception to the general rule against a search without a warrantIn Posadas vs. Court of Appeals, 24 the Court held that there were many instances where a search and seizure could beeffected without necessarily being preceded by an arrest, one of which was stop-and-frisk. In said case, members of theIntegrated National Police of Davao stopped petitioner, who was carrying a buri bag and acting suspiciously. They foundinside petitioner's bag one .38-cal. revolver with two rounds of live ammunition, two live ammunitions for a .22-cal. gunand a tear gas grenade. In upholding the legality of the search, the Court said that to require the police officers to searchthe 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 todetermine his identity or to maintain the status quo while obtaining more information, rather than to simply shrug hisshoulders and allow a crime to occur.

In the case at hand, Patrolman Espiritu and his companions observed during their surveillance that appellant had red eyesand was wobbling like a drunk along the Caloocan City Cemetery, which according to police information was a popularhangout of drug addicts. From his experience as a member of the Anti-Narcotics Unit of the Caloocan City Police, suchsuspicious behavior was characteristic of drug addicts who were "high." The policemen therefore had sufficient reason tostop petitioner to investigate if he was actually high on drugs. During such investigation, they found marijuana inpetitioner's possession: 25

FISCAL RALAR:

Q And why were you conducting surveillance in front of the Caloocan Cemetery, SangandaanCaloocan City?

A Because there were some informations that some drug dependents were roaming around at AMabini 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 introduceourselves 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 ondrug? 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 hishands? 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



139

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 anyevidence 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. 26Otherwise, the Courts will indulge every reasonablepresumption against waiver of fundamental safeguards and will not deduce acquiescence from the failure to exercise thiselementary right. In the present case, however, petitioner is deemed to have waived such right for his failure to raise itsviolation before the trial court. In petitions under Rule 45, as distinguished from an ordinary appeal of criminal caseswhere the whole case is opened for review, the appeal is generally limited to the errors assigned by petitioner. Issues notraised 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 theopportunity to observe their demeanor and deportment as they testified before it. Unless substantial facts andcircumstances have been overlooked or misappreciated by the trial court which, if considered, would materially affect theresult 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 prosecutionwitnesses' testimonies, We do not find them substantial enough to impair the essential veracity of their narrationIn People vs. Avila, it was held that — "As long as the witnesses concur on the material points, slight differencesin 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 credenceon Pat. Espiritu's testimony is justified by tangible evidence on record. Despite Pat. Lumabas' contradictory testimony, thaof Espiritu is supported by the Joint Affidavit 29 signed by both arresting policemen. The question of whether the marijuanawas found inside petitioner's wallet or inside a plastic bag is immaterial, considering that petitioner did not denypossession of said substance. Failure to present the wallet in evidence did not negate that marijuana was found inpetitioner'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 isidentified to be a prohibited drug; (b) such possession is not authorized by law; and (c) the accused freely and consciouslypossessed the said drug. 31

The substance found in petitioner's possession was identified by NBI Forensic Chemist Aida Pascual to be crushedmarijuana leaves. Petitioner's lack of authority to possess these leaves was established. His awareness thereof wasundeniable, considering that petitioner was high on drugs when stopped by the policemen and that he resisted whenasked to show and identify the thing he was holding. Such behavior clearly shows that petitioner knew that he was holdingmarijuana 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 extortionangle in this case. Petitioner did not file any administrative or criminal case against the arresting officers or present anyevidence other than his bare claim. His argument that he feared for his life was lame and unbelievable, considering thathe was released on bail and continued to be on bail as early as April 26, 1988. 32Since then, he could have made the



140

charge in relative safety, as he was no longer in the custody of the police. His defense of frame-up, like alibi, is viewed bythis 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 sentencingpetitioner 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:

Sec. 1. Hereafter, in imposing a prison sentence for an offense punished by the Revised Penal Code, or itsamendments, the court shall sentence the accused to an indeterminate sentence the maximum term of whichshall be that which, in view of the attending circumstances, could be properly imposed under the rules of the saidCode, and the minimum which shall be within the range of the penalty next lower to that prescribed by the Codefor the offense; and if the offense is punished by any other law, the court shall sentence the accused to anindeterminate sentence, the maximum term of which shall not exceed the maximum fixed by said law and theminimum 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-imprisonmentto those convicted of treason; to those convicted of misprision of treason, rebellion, sedition or espionage; tothose 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 Executiveshall 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 Section5 hereof. (Emphasis supplied)

The Dangerous Drugs Law, R.A. 6425, as amended by B.P. 179, imposes the following penalty for illegal possession ofmarijuana:

Sec. 8. . . . .

The penalty of imprisonment ranging from six years and one day to twelve years and a fine ranging from sixthousand to twelve thousand pesos shall be imposed upon any person who, unless authorized by law, shal

possess or use Indian hemp.

Prescinding from the foregoing, the Court holds that the proper penalty is an indeterminate sentence of imprisonmentranging from six years and one day to twelve years. 34

WHEREFORE, the assailed Decision and Resolution are hereby AFFIRMED with MODIFICATION. Petitioner issentenced to suffer IMPRISONMENT of SIX (6) YEARS, as minimum, to TWELVE (12) YEARS, as maximum, and toPAY a FINE of SIX THOUSAND PESOS. Costs against petitioner.

SO ORDERED.



141

G.R. No. 91107 June 19, 1991

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,vs.MIKAEL MALMSTEDT, *defendant-appellant.

The Solicitor General for plaintiff-appellee.Romulo, Mabanta, Buenaventura, Sayoc & De los Angeles for defendant-appellant.

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, forviolation of Section 4, Art. II of Republic Act 6425, as amended, otherwise known as the Dangerous Drugs Act of 1972, asamended. 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 touristHe 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, hetook a bus to Sagada and stayed in that place for two (2) days.

At around 7:00 o'clock in the morning of 11 May 1989, accused went to the Nangonogan bus stop in Sagada to catch thefirst available trip to Baguio City. From Baguio City, accused planned to take a late afternoon trip to Angeles City, thenproceed to Manila to catch his flight out of the country, scheduled on 13 May 1989. From Sagada, accused took a Skylinebus 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 othe First Regional Command (NARCOM) stationed at Camp Dangwa, ordered his men to set up a temporary checkpointat Kilometer 14, Acop, Tublay, Mountain Province, for the purpose of checking all vehicles coming from the CordilleraRegion. The order to establish a checkpoint in the said area was prompted by persistent reports that vehicles coming fromSagada were transporting marijuana and other prohibited drugs. Moreover, information was received by the CommandingOfficer 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 thedesignated 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 Galutanboarded 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 wasthe 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 agun, the officer asked for accused's passport and other identification papers. When accused failed to comply, the officerrequired him to bring out whatever it was that was bulging on his waist. The bulging object turned out to be a pouch bagand when accused opened the same bag, as ordered, the officer noticed four (4) suspicious-looking objects wrapped inbrown packing tape, prompting the officer to open one of the wrapped objects. The wrapped objects turned out to containhashish, a derivative of marijuana.

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Thereafter, accused was invited outside the bus for questioning. But before he alighted from the bus, accused stopped toget 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. Feelingthe teddy bears, the officer noticed that there were bulges inside the same which did not feel like foam stuffing. It was onlyafter 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 furtheinvestigation. At the investigation room, the officers opened the teddy bears and they were found to also contain hashishRepresentative samples were taken from the hashish found among the personal effects of accused and the same werebrought 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 derivativeof 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 hispersonal 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 inSagada. He further claimed that the Australian couple intended to take the same bus with him but because there were nomore 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, hehanded to one of the officers his pouch bag which was hanging on his neck containing, among others, his passport, returnticket to Sweden and other papers. The officer in turn handed it to his companion who brought the bag outside the busWhen said officer came back, he charged the accused that there was hashish in the bag. He was told to get off the busand his picture was taken with the pouch bag placed around his neck. The trial court did not give credence to accused'sdefense.

The claim of the accused that the hashish was planted by the NARCOM officers, was belied by his failure to raise suchdefense at the earliest opportunity. When accused was investigated at the Provincial Fiscal's Office, he did not inform theFiscal or his lawyer that the hashish was planted by the NARCOM officers in his bag. It was only two (2) months after saidinvestigation when he told his lawyer about said claim, denying ownership of the two (2) travelling bags as well as havinghashish in his pouch bag.

In a decision dated 12 October 1989, the trial court found accused guilty beyond reasonable doubt for violation of theDangerous Drugs Act, specifically Section 4, Art. II of RA 6425, as amended.3 The dispositive portion of the decisionreads as follows:

WHEREFORE, finding the guilt of the accused Mikael Malmstedt established beyond reasonable doubt, this Courtfinds him GUILTY of violation of Section 4, Article 11 of Republic Act 6425, as amended, and hereby sentenceshim to suffer the penalty of life imprisonment and to pay a fine of Twenty Thousand Pesos (P20,000.00), withsubsidiary 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 thesearch of his personal effects was illegal because it was made without a search warrant and, therefore, the prohibiteddrugs 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 againsunreasonable searches and seizures.5 However, where the search is made pursuant to a lawful arrest, there is no need toobtain a search warrant. A lawful arrest without a warrant may be made by a peace officer or a private person under thefollowing circumstances.6



















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Sec. 5 Arrest without warrant ; when lawful . –– A peace officer or a private person may, without a warrant, arrest aperson:

(a) When, in his presence, the person to be arrested has committed is actually committing, or is attempting tocommit 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 heis serving final judgment or temporarily confined while his case is pending, or has escaped while being transferredfrom one confinement to another.

In cases falling under paragraphs (a) and (b) hereof, the person arrested without a warrant shall be forthwithdelivered 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 committedby the accused and he was caught in flagrante delicto. Thus, the search made upon his personal effects falls squarelyunder 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 thepersonal effects of accused, however, under the circumstances of the case, there was sufficient probable cause for saidofficers 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 prudentman to believe that an offense has been committed, and that the objects sought in connection with the offense are in theplace sought to be searched.8 The required probable cause that will justify a warrantless search and seizure is notdetermined 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 existenceof probable cause, where the smell of marijuana emanated from a plastic bag owned by the accused ,10or 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 transportingmarijuana and other prohibited drugs, their Commanding Officer also received information that a Caucasian coming fromSagada on that particular day had prohibited drugs in his possession. Said information was received by the CommandingOfficer 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 Caucasiantravelling from Sagada to Baguio City was carrying with him prohibited drugs, there was no time to obtain a searchwarrant. In the Tangliben case,13 the police authorities conducted a surveillance at the Victory Liner Terminal located atBgy. San Nicolas, San Fernando Pampanga, against persons engaged in the traffic of dangerous drugs, based oninformation supplied by some informers. Accused Tangliben who was acting suspiciously and pointed out by an informerwas 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 wasriding) and the passengers therein, and no extensive search was initially made. It was only when one of the officersnoticed a bulge on the waist of accused, during the course of the inspection, that accused was required to present hispassport. The failure of accused to present his identification papers, when ordered to do so, only managed to arouse thesuspicion of the officer that accused was trying to hide his identity. For is it not a regular norm for an innocent man, whohas 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 possessionplus the suspicious failure of the accused to produce his passport, taken together as a whole, led the NARCOM officers toreasonably believe that the accused was trying to hide something illegal from the authorities. From these circumstances































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arose a probable cause which justified the warrantless search that was made on the personal effects of the accused. Inother words, the acts of the NARCOM officers in requiring the accused to open his pouch bag and in opening one of thewrapped objects found inside said bag (which was discovered to contain hashish) as well as the two (2) travelling bagscontaining two (2) teddy bears with hashish stuffed inside them, were prompted by accused's own attempt to hide hisidentity by refusing to present his passport, and by the information received by the NARCOM that a Caucasian comingfrom Sagada had prohibited drugs in his possession. To deprive the NARCOM agents of the ability and facility to actaccordingly, 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. Costsagainst the accused-appellant.

SO ORDERED.

Melencio-Herrera, Paras, Feliciano, Bidin, Griño-Aquino, Medialdea, Regalado and Davide, Jr., JJ., concurSarmiento, J., is on leave.

Separate Opinions

NARVASA, J ., concurring and dissenting:

The ancient tradition that a man's home is his castle, safe from intrusion even by the king, has not only found its niche inall our charters, from 1935 to the present; it has also received unvarying recognition and acceptance in our case law .1 Thepresent Constitution2 declares that —

The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searchesand seizures of whatever nature and for any purpose, shall be inviolable, and no search warrant or warrant ofarrest shall issue except upon probable cause to be determined personally by the judge after examination underoath 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 purposein 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 hispersonal effects or belongings, or his residence except by virtue of a search warrant or on the occasion of a legitimatearrest.4

An arrest is legitimate, of course, if effected by virtue of a warrant of arrest. Even without a warrant, an arrest may also belawfully 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 tocommit an offense;

(b) When an offense has in fact just been committed, and he has personal knowledge of facts indicating that theperson to be arrested has committed it; and


In cases falling under paragraphs (a) and (b) hereof, the person arrested without a warrant shall be forthwithdelivered to the nearest police station or jail, and he shall be proceeded against in accordance with Rule 112,Section 7.

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In any of these instances of a lawful arrest, the person arrested "may be searched for dangerous weapons or anythingwhich may be used as proof of the commission of an offense, without a search warrant."6 And it has been held that thesearch may extend to the area "within his immediate control," i.e., the area from which said person arrested might gainpossession 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 amoving 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 Americanprecedent, Harris v. U.S.13

If, on the other, a person is searched without a warrant, or under circumstances other than those justifying an arreswithout warrant in accordance with law, supra, merely on suspicion that he is engaged in some felonious enterprise, andin order to discover if he has indeed committed a crime, it is not only the arrest which is illegal but also, the search on theoccasion thereof, as being "the fruit of the poisonous tree.14 In that event, any evidence taken, even if confirmatory of theinitial suspicion, is inadmissible "for any purpose in any proceeding."15 But the right against an unreasonable search andseizure 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. Howeverthe Court is divided as regards the ultimate conclusions which may properly be derived from the proven facts andconsequently, 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 thesoldiers had no warrant of arrest when they conducted a search of Malmstedt's person and the things in his possession atthe time. Indeed, the Court a quo acknowledged that the soldiers could "not be expected to be armed with a warrant orarrest nor a search warrant everytime they establish a temporary checkpoint . . . (and) no judge would issue them oneconsidering that searching questions have to be asked before a warrant could be issued." Equally plain is that prior to thesearch, a warrantless arrest of Malmstedt could not validly have been in accordance with the norms of the law. ForMalmstedt had not committed, nor was he actually committing or attempting to commit a crime, in the soldiers' presencenor did said soldiers have personal and competent knowledge that Malmstedt had in fact just committed a crime. All theyhad was a suspicion that Malmstedt might have some prohibited drug on him or in his bags; all they had was, in the wordsof the Trial Court, "the hope of intercepting any dangerous drug being transported," or, as the Office of the SolicitorGeneral asserts, "information that most of the buses coming . . . (from the Cordillera) were transporting marijuana andother 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 officerswere 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 thasince the PC officers had failed to procure a search warrant although they had sufficient time (two days) to do so andtherefore, the case presented no such urgency as to justify a warrantless search, the search of Aminnudin's person andbag, the seizure of the marijuana and his subsequent arrest were illegal; and the marijuana was inadmissible in evidencein 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 werereached. It is needful to devote a few words to them so that the relevant constitutional and legal propositions are nomisunderstood.

In People v. Claudio (decision promulgated on April 15, 1988),18 the accused boarded a "Victory Liner" passenger busgoing to Olongapo from Baguio City. She placed the plastic bag she was carrying at the back of the seat then occupied byObiña, an INP member "on Detached Service with the Anti-Narcotics Unit." This avowedly aroused Obiña's suspicion, andat the first opportunity, and without Claudio's knowledge, he surreptitiously looked into the plastic bag and noted that itcontained camote tops as well as a package, and that there emanated from the package the smell of marijuana withwhich he had become familiar on account of his work. So when the bus stopped at Sta. Rita, and Claudio alighted, Obiñaaccosted her, showed her his ID, identified himself as a policeman, and announced his intention to search her bag whichhe said contained marijuana because of the distinctive odor detected by him. Ignoring her plea — "Please go with me, leus settle this at home" — he brought her to the police headquarters., where examination of the package in Claudio's bagconfirmed his suspicion that it indeed contained marijuana. The Court held the warrantless arrest under the circumstancesto be lawful, the search justified, and the evidence thus discovered admissible in evidence against the accused.























































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In People v. Tangliben (decision promulgated on April 6, 1990),19 two police officers and a barangay tanod wereconducting a "surveillance mission" at the Victory Liner Terminal at San Nicolas, San Fernando, Pampanga, "aimed notonly against persons who may commit misdemeanors . . . (there) but also on persons who may be engaging in the trafficof dangerous drugs based on information supplied by informers; . . . they noticed a person carrying a red travelling bag . .who was acting suspiciously;" they asked him to open the bag; the person did so only after they identified themselves aspeace officers; found in the bag were marijuana leaves wrapped in plastic weighing one kilogram, more or less; theperson 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 Actof 1972 (RA 6425), as amended. Upon these facts it was ruled, citing Claudio, supra, that there was a valid warrantlessarrest and a proper warrantless search incident thereto.

The facts in Tangliben were pronounced to be different from those in People v. Aminnudin, supra. "In contrastto Aminnudin where the Court perceived no urgency as to preclude the application for and obtention of a search warrant, itwas 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 quicklyThere was not enough time to secure a search warrant . . . To require search warrants during on-the-spotapprehensions of drug pushers, illegal possessors of firearms, jueteng collectors, smugglers of contrabandgoods, robber, 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 asearch 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 wasconsidered valid.

Two other decisions presented substantially similar circumstance instances: Posadas v. C.A., et al ., decided on August 21990,20 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 whenhe was accosted by the two, who identified themselves as police officers, he suddenly fled. He was pursued, overtakenand, 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 gasgrenade. He was prosecuted for illegal possession of firearms and ammunition and convicted after trial. This Courtaffirmed 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 citedwith approval the ruling of the U.S. Federal Supreme Court in John W. Terry v. State of Ohio,22 a 1968 case, which theSolicitor 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 NarcoticsCommand at Sayangan, Atok, Benguet, to monitor, inspect and scrutinize vehicles on the highway going towards BaguioCity. This was done because of a confidential report by informers that Maspil and another person, Bagking, would betransporting a large quantity of marijuana to Baguio City. In fact, the informers were with the policemen manning thecheckpoint. As expected, at about 2 o'clock in the early morning of November 1, 1986, a jeepney approached thecheckpoint, 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 whaappeared to be marijuana leaves. The policemen thereupon placed Maspil and Bagking under arrest, and confiscated theleaves which, upon scientific examination, were verified to be marijuana leaves. The Court upheld the validity of thesearch thus conducted, as being incidental to a lawful warrantless arrest,23 and declared that, as in Tangliben, supraMaspil and Bagking had been caught in flagrante delicto transporting prohibited drugs at the time of their arrest. Againthe Court took occasion to distinguish the case from Aminnudi n24 in which, as aforestated, it appeared that the policeofficers were aware of Aminnudin's identity, his projected criminal enterprise and the vessel on which he would bearriving, and, equally as importantly, had sufficient time and opportunity to obtain a search warrant. In the case of Maspiand Bagking, the Court found that the officers concerned had no exact description of the vehicle the former would beusing to transport marijuana, and no inkling of the definite time of the suspects' arrival, and pointed out that a jeepney onthe 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































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The most recent decision treating of warrantless search and seizure appears to be People v. Lo Ho Wing; et al ., G.R. No88017, 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 ChingHuat. Tia accompanied Peter Lo to Guangzhou, China, where he saw him and other person 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 metat the airport by Lim. As they were leaving the airport in separate vehicles, they were intercepted by officers andoperatives of the Narcotics Command (NARCOM), who had earlier been tipped off by Tia, and placed under arrest. As

search of the luggage brought in by Tia and Peter Lo, loaded on the group's vehicles, quickly disclosed the six (6) tin canscontaining fifty-six (56) bags of white crystalline powder which, upon analysis, was identified as metamphetamine . Tia, Loand Lim were indicted for violation of the Dangerous Drugs Act of 1972. Tia was discharged as state witness. Lo and Limwere subsequently convicted and sentenced to life imprisonment. One of the questions raised by them in this Court onappeal was whether the warrantless search of their vehicles and personal effects was legal. The Court, citingManipon, Jrv. Sandiganbayan, 143 SCRA 267 (1986),26 held legal the search of the appellants' moving vehicles and the seizuretherefrom of the dangerous drug, considering that there was intelligence information, including clandestine reports by aplanted spy actually participating in the activity, that the appellants were bringing prohibited drugs into the country; that therequirement of obtaining a search warrant "borders on the impossible in the case of smuggling effected by the use of amoving vehicle that can transport contraband from one place to another with impunity," and "it is not practicable to securea warrant because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must besought.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 arrestingwas in fact in possession of marijuana; he had personally seen that her bag contained not only vegetables but also apackage emitting the odor of marijuana. In Tangliben, the person arrested and searched was acting suspiciously, and hadbeen 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 andsearched was acting suspiciously, too, and when accosted had attempted to flee from the police officers. Andin Maspil and Lo Ho Wing, there was definite information of the precise identity of the persons engaged in transportingprohibited 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 awarrantless search and seizure, there is, as earlier pointed out, a regrettable divergence of views among the members ofthe Court.

Contrary to the conclusion reached by the majority, I believe that the appellant should be absolved on reasonable doubtThere was in this case no confidential report from, or positive identification by an informer; no attempt to flee; no bag orpackage emitting tell-tale odors; no other reasonably persuasive indications that Malmstedt was at the time in process ofperpetrating the offense for which he was subsequently prosecuted. Hence, when the soldiers searched Malmstedt'spouch and the bags in his possession, they were simply "fishing" for evidence. It matters not that the search disclosed thatthe bags contained prohibited substances, confirming their initial information and suspicion. The search was not made byvirtue of a warrant or as an incident of a lawful warrantless arrest, i.e., under circumstances sufficient to engender areasonable belief that some crime was being or about to be committed, or adjust been committed. There was nointelligent 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 belongingsmay licitly be made. The process cannot be reversed, i.e., a search be first undertaken, and then an arrest effected, onthe strength of the evidence yielded by the search. An arrest made in that case would be unlawful, and the searchundertaken as an incident of such an unlawful arrest, also unlawful.

The fact that when investigated at the headquarters of the Narcotic Command at Camp Dangwa, La Trinidad, Malmstedthad, it is said, willingly admitted that there were was hashish inside the "teddy bears" in the luggage found in hispossession — an admission subsequently confirmed by laboratory examination — does not help the cause of theprosecution one bit. Nothing in the record even remotely suggests that Malmstedt was accorded the rights guaranteed bythe Constitution to all persons under custodial investigation.28 He was not informed, prior to being interrogated, that hehad the "right to remain silent and to have competent and independent counsel preferably of his own choice," and that ifhe could not afford the services of counsel, he would be provided with one; not does it appear at all that he waived thoserights "in writing and in the presence of counsel." The soldiers and the police officers simply went ahead with theinvestigation of Malmstedt, without counsel. The admissions elicited from Malmstedt under these circumstances, as theConstitution clearly states, are "inadmissible in evidence against him.29



















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The prohibited drugs supposedly discovered in Malmstedt's bags, having been taken in violation of the constitutional rightagainst unreasonable searches and seizures, are inadmissible against him "for any purpose in any proceeding." Alsopronounced as incompetent evidence against him are the admissions supposedly made by him without his first beingaccorded the constitutional rights of persons under custodial investigation. Without such object evidence and admissionsnothing 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 oits evidence and not on the weakness of the defense. The unfortunate fact is that although the existence of the hashish isan objective physical reality that cannot but be conceded, there is in law no evidence to demonstrate with any degree ofpersuasion, much less beyond reasonable doubt, that Malmstedt was engaged in a criminal activity. This is the paradoxcreated by the disregard of the applicable constitutional safeguards. The tangible benefit is that the hashish in questionhas 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 andmilitary authorities to deter and detect offenses, whether they be possession of and traffic in prohibited drugs, or someother. 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 fallunder suspicion of engaging in criminal acts. Disregard of those rights may not be justified by the objective of ferreting outand 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.

CRUZ, J ., dissenting:

I join Mr. Justice Andres R. Narvasa in his dissent, which I believe represents the correct application to the facts of thiscase of the provisions of the Bill of Rights and the Rules of Court on searches and seizures. It is consistent withmy ponencia in People v. Aminnudin, 163 SCRA 402, and also with Alih v. Castro, 151 SCRA 279, the latter being aunanimous 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 SCRA623.

I write this separate opinion merely to remark on an observation made during the deliberation on this case that somemembers of the Court seem to be coddling criminals instead of extending its protection to society, which deserves ourhigher concern. The inference is that because of our wrong priorities, criminals are being imprudently let free, to violateour 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, untihe is convicted by final judgment after a fair trial by a competent and impartial court. Until then, the Constitution bids us topresume 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 longas the suspect has been actually found in possession of a prohibited article That fact will retroactively validate theviolation of the Bill of Rights for after all, as they would rationalize, the suspect is a criminal. What matters to them is thefact 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 discreditedin Stonehill v. Diokno, 20 SCRA 383, even before it was definitely rejected by an express provision in the 1973







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Constitution. That provision, which has been retained in the present Constitution, again explicitly declares that anyevidence illegally obtained "shall be inadmissible for any purpose in any proceeding."

The fruit of the poisonous tree should not be allowed to poison our system of criminal justice. 1âwphi1 In the case at barthe search was made at a checkpoint established for the preposterous reason that the route was being used by marijuanadealers and on an individual who had something bulging at his waist that excited the soldier's suspicion. Was thatprobable 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 warrantlesssearch. 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 accusedwas carrying a prohibited drug. This is supposed to justify the soldier's suspicion. In other words, it was the fact of illegapossession that retroactively established the probable cause that validated the illegal search and seizure. It was the fruitof the poisonous tree that washed clean the tree itself.

In Olmstead v. U.S., 277 U.S. 438, Justice Holmes said sixty-four years ago:

. . . It is desirable that criminals should be detected, and to that end that all available evidence should beused.1avvphi1 It is also desirable that the government should not itself foster and pay for other crimes, when theyare 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 toprotestations of disapproval if it knowingly accepts and pays and announces that in the future it will pay for thefruits. We have to choose, and for my part I think it a less evil that some criminals should escape than that thegovernment should play an ignoble part.

If by deterring the government from playing "an ignoble part," I am "coddling criminals," I welcome the accusation andtake pride in it. I would rather err in favor of the accused who is impaled with outlawed evidence than exalt order at theprice of liberty.



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G.R. No. 128222 June 17, 1999

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,vs.CHUA HO SAN @ TSAY HO SAN, accused-appellant.

DAVIDE, JR., C.J.:

Chua Ho San @ Tsay Ho San (hereafter CHUA) prays for his acquitttal and the reversal of the judgment of 10 February1997 of the Regional Trial Court (RTC) of San Fernando, La Union, Branch 66, finding him guilty of transporting, withoutappropriate legal authority, the regulated substance methamphetamine hydrochloride, in violation of Section 15, 1 ArticleIII 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 judgement was brought to this Court forautomatic 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 Chiefof Police of the Bacnotan Police Station, of La Union began patrolling the Bacnotan coastline with his officers. Whilemonitoring the coastal area of Barangay Bulala on 29 March 1995, he intercepted a radio call at around 12:45 p.m. fromBarangay Captain Juan Almoite (hereafter ALMOITE) of Barangay Tammocalao requesting police assistance regardingan unfamiliar speedboat the latter had spotted. According to ALMOITE, the vessel looked different from the boatsordinarily used by fisherfolk of the area and was poised to dock at Tammocalao shores. CID and six of his men led by hisChief Investigator, SPO1 Reynoso Badua (hereafter BADUA), proceeded forthwith to Tammocalao beach and thereconferred with ALMOITE. CID then observed that the speedboat ferried a lone male passenger. As it was routine for CIDto deploy his men in strategic places when dealing with similar situations, he ordered his men to take up positions thirtymeters from the coastline. When the speedboat landed, the male passenger alighted, and using both hands, carried whatappeared a multicolored strawbag. He then walked towards the road. By this time, ALMOITE, CID and BADUA, the lattertwo conspicuous in their uniform and issued side-arms, became suspicious of the man as he suddenly changed directionand broke into a run upon seeing the approaching officers. BADUA, however, prevented the man from fleeing by holdingon to his right arm. Although CID introduced themselves as police officers, the man appeared impassive. Speaking inEnglish, CID then requested the man to open his bag, but he seem not to understand. CID thus tried speaking Tagalogthen 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 yieldedseveral transparent plastic packets containing yellowish crystalline substances. CID then gestured to the man to close thebag, which he did. As CID wished to proceed to the police station, he signaled the man to follow, but the latter did not tocomprehend. Hence, CID placed his arm around the shoulders of the man and escorted the latter to the policeheadquarters.

At the police station, CID surmised, after having observed the facial features of the man, that he was probably TaiwaneseCID then "recited and informed the man of his constitutional rights" to remain silent, to have the assistance of acounsel, etc . Eliciting no response from the man, CID ordered his men to find a resident of the area who spoke Chinese toact as an enterpreter. In the meantime, BADUA opened the bag and counted twenty-nine (29) plastic packets containingyellowish crystalline substance which he and CID suspected was shabu. The interpreter, Mr. Go Ping Guan, finallyarrived, through whom the man was "apprised of his constitutional rights." The police authorities were satisfied that theman 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.Dwith the name Chua Ho San printed thereon. CHUA's bag and its contents were sent to the PNP Crime Laboratory atCamp Diego Silang, Carlatan, San Fernando, La Union for laboratory examination. In the meantime, CHUA was detainedat the Bacnotan Police Station.1âwphi1.nêt

Later that same day, Police Chief Inspector and Forensic Chemist Theresa Ann Bugayong Cid of the Philippine NationalPolice, Region I, received a letter request 3 from CID — incidentally her husband — to conduct a laboratory examination oftwenty-nine (29) plastic packets placed inside a multicolored strawbag. In her Chemistry Report No. D-025-95, 4 shestated that her qualitative examination established the contents of the plastic packets, weighing 28.7 kilos, to be positiveof methamphetamine hydrochloride or shabu, a regulated drug.



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CHUA was initially charged with illegal possession of methaphetamine hydrochloride before the RTC which docketed thecase as Criminal Case No. 4037. However, pursuant to the recommendation of the Office of the Provincial Prosecutor, LaUnion, that the facts of the case could support an indictment for illegal transport of a regulated drug, the information wassubsequently amended to allege that CHUA "willfully, unlawfully and feloniously transpor(ted) 28.7 kilos o[m]ethamphetamine [h]ydrochloride (shabu) without the necessary permit or authority to transport the same" in violation ofSection 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 theamended 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 theDepartment of Foreign Affairs. However, it was only after directing the request to the Taipei Economic and Cultural Officein 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 culledchiefly from the testimony of CID, its first witness, and whose testimony, in turn, was substantially corroborated bywitnesses BADUA and ALMOITE.

Experts witness Theresa Ann Cid, confirmed the entries of her chemistry report in that the contents of the 29 plasticpackets 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 Taiwanand was employed in a shipbuilding and repairing company. On 21 March 1995, he was instructed by his employer ChoChu Rong (hereafter RONG) to board the latter's 35-tonner ship which would embark for Nan Au Port, Mainland Chinawhere they would buy fish. Upon arrival at their destination, RONG left the ship, came back without the fish, but with twobags, the contents of which he never divulged to CHUA. RONG then showed to CHUA a document purportedly grantingthem authority to fish on Philippine waters. So they sailed towards the Philippines and reached Dagupan, Pangasinan on29 March 1995. At around 10:30 a.m., they disembarked on a small speedboat with the two bags RONG brought with himfrom China. While, sailing, RONG made several phone calls using his mobile phone. CHUA heard RONG asked theperson on the other side of the line if he could see the speedboat they were riding. Apparently, the person on shore couldnot 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 thereafterpointed out to him that one bag was missing much to RONG's dismay when he learned of it. When a crowd started to milaround them, the police arrived. CHUA then realized that RONG was nowhere to be found. The police immediatelyapproached CHUA, and with nary any spoken word, only gestures and hand movements, they escorted him to theprecinct where he was handcuffed and tied to a chair. Later, the police, led by an officer who CHUA guessed as the Chieof Police arrived with the motor engine of the speedboat and a bag. They presented the bag to him, opened it, inspectedand weighed the contents, then proclaimed them as methaphetamine hydrochloride.

CHUA denounced the prosecution's story as a distortion of the truth. He denied he was ever favored with an interpreter orinformed of his "constitutional rights," particularly of his right to counsel. Consequently, his arrest was tainted with illegalityand the methamphetamine hydrochloride found in the bag should have been regarded inadmissible as evidence. He alsomaintained that CID never graced the occasion of his setting foot for the first time at Tammocalao beach. BADUAcertainly 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 exerciseddominion over the same.

Elmer Parong, (hereafter PARONG) a Sangguniang Bayan member, recalled that on the date in question, he arrived atthe beach with the police. He saw CHUA standing with a bag beside him. He also remembered hearing from the peoplecongregating at the beach that CHUA arrived with a companion and a certain policeman Anneb had chased the latter'scar. He additionally claimed that when the crowd became unruly, the police decided to bring CHUA to policeheadquarters. There, the mayor took charge of the situation — he opened CHUA's bag with the assistance of the policehe called for a forensic chemist surnamed CID to take a sample of the contents of the bag, and he ordered his officials tofind an interpreter. Throughout the proceedings, photographers were busy taking pictures to document the event.



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Last to testify was Arsenio CRAIG, a farmer and resident of Tammocalao who narrated that he was standing with CHUAon the beach when two men and a lady arrived. They were about to get a bag situated near CHUA when they detectedthe arrival of the local police. They quickly disappeared. CRAIG then noticed ALMOITE and PARONG at the beach butnot CID.

In a decision promulgated on 10 February 1997, the RTC found that the prosecution successfully discharged its burden ofproving 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 flagrantedelicto arrest, hence it allowed the admission of the methamphetamine hydrochloride as corpus delicti . The RTC alsonoted the futility of informing CHUA of his constitutional rights to remain silent, and to have competent and independentcounsel 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 thendisregarded the inconsistencies and contradictions in the testimonies of the prosecution witnesses as these referred tominor details which did not impair the credibility of the witnesses or tarnish the credence conferred on the testimonies thusdelivered.

The RTC also believed that CHUA conspired not only with his alleged employer RONG and the Captain of the 35-tonnervessel in the illegal trade of prohibited drugs on Philippine shores, but with several other members of an organizedsyndicate 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 satisfactoryevidence that the accused had conspired and acted in concert with one Cho Chu Rong, not to mentionChen Ho Fa, the Skipper of the 35-tonner ship they used in coming to the Country from China andTaiwan, this Court finds the accused Chua Ho San @ Tsay Ho San guilty beyond reasonable doubt of theoffense of Violation of Sec. 15, Art. III of R.A. No. 6425, as amended by R.A. No. 7659 as charged in theInformation, and considering the provisions of Sec. 20 of R.A. No. 7659 that the maximum penalty shalbe imposed if the quantity sold/possessed/transported is "200 grams or more" in the case of Shabu, andconsidering, further that the quantity involved in this case is 28.7 kilograms which is far beyond the weightceiling specified in said Act, coupled with the findings of conspiracy or that accused is a member of anorganized syndicated crime group, this Court, having no other recourse but to impose the maximumpenalty to accused, this Court hereby sentences the said accused Chua Ho San @ Tsay Ho San to dieby 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 toimmediately form an investigating Committee to be composed by [sic ] men of unimpeachable integritywho will conduct an exhaustive investigation regarding this case to determine whether there wasnegligence or conspiracy in the escape of Cho Chu Rong and the two (2) or three (3) persons whoapproached the accused in the seashore of Tammocalao, Bacnotan, La Union, and attempted to take theremaining bag from accused, as well as the whereabouts of the other bag; and to furnish this Court acopy of the report/result of the said investigation in order to show compliance herewith sixty (60) daysfrom receipt hereof.

The confiscated 28.7 kilograms of Methaphetamine Hydrochloride or Shabu is ordered turned overimmediately 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-Dagaoperations 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 ofmethamphetamine hydrochloride since they were indubitably "forbidden fruits;" (2) granting weight and credence to thetestimonies of prosecution witnesses despite glaring inconsistencies on material points; and in (3) appreciating conspiracybetween him and an organized syndicate in the illicit commerce of prohibited drugs since this was not alleged in theinformation.



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The Solicitor General traverses CHUA's contentions by asserting that: (1) the search was licitly conducted despite theabsence of search and seizure warrants as circumstances immediately preceding to and comtemporaneous with thesearch necessitated and validated the police action; and (2) that there was an effective and valid waiver of CHUA's rightagainst unreasonable searches and seizures since he consented to the search.

We reverse the RTC.

Enshrined in the Constitution is the inviolable right to privacy home and person. It explicitly ordains that people have theright to be secure in their persons, houses, papers and effects against unreasonable searches and seizures of whatevernature and for any purpose. 7 Inseparable, and not merely corollary or incidental to said right and equally hallowed in andby the Constitution, is the exclusionary principle which decrees that any evidence obtained in violation of said right isinadmissible for any purpose in any proceedings. 8

The Cosntitutional proscription against unreasonable searches and seizures does not, of course, forestall reasonablesearches 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. 9Verily, the rule is, the Constitutionbars State intrusions to a person's body, personal effects or residence except if conducted by virtue of a valid of a validsearch warrant issued in compliance with the procedure outlined on the Constitution and reiterated in the Rules of Court;"otherwise such search and seizure become "unreasonable" within the meaning of the aforementioned constitutionaprovision." 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 movingvehicles, (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 seizurepursuan to an equally valid warrantless arrest, for, while as a rule, an arrest is considered legitimate if effected with a validwararnt of arrest, the Rules of Court recognize permissible warrantless arrests, to wit: (1) arrests in flagrante delicto, (2arrests 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 factsof the case at bar constitute a valid exemption from the warrant requirement. Expectedly and quite understandably, theprosecution and the defense painted extremely divergent versions of the incident. But this Court is certain that CHUA wasarrested and his bag searched without the benefit of a warrant.

In cases of in fragrante 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 facts 14 or as recent case law 15 adverts topersonal knowledge of facts or circumstances convincingly indicative or constitutive of probable cause. The term probablecause had been understood to mean a reasonable ground of suspicion supported by circumstances sufficiently strong inthemselves to warrant a cautious man's belief that the person accused is guilty of the offense with which he ischarged. 16 Specifically with respect to arrests, it is such facts and circumstances which would lead a reasonably discreetand prudent man to believe that an offense has been committed by the person sought to bearrested. 17 In People v. Montilla, 18 the Court acknowledged that "the evidentiary measure for the propriety of filingcriminal charges, and correlatively, for effecting warrantless arrest, has been reduced and liberalized." Noting that theprevious statutory and jurisprudential evidentiary standard was " prima facie evidence" and that it had been dubiouslyequated 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 ofthe Rules of Court which provides in Rule 112 thereof that the quantum of evidence required inpreliminary investigation is such evidence as suffices to "engender as well founded belief" as to the fact ofthe commission of the crime and the respondent's probable guilt thereof. It has the same meaning as therelated phraseology used in other parts of the same Rule, that is, that the investigating fiscal "finds causeto hold the respondent for trial," or where "a probable cause exists." It should, therefore, be in that sensewherein the right to effect a warrantless arrest should be considered as legally authorized." (emphasissupplied) 19

Guided by these principles, this Court finds that there are no facts on record reasonably suggestive or demonstrative ofCHUA's participation in on going criminal enterprise that could have spurred police officers from conducting the obtrusivesearch. The RTC never took the pains of pointing to such facts, but predicated mainly its decision on the finding that was



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"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 wasacting suspiciously, on the spot identification by an informant that accused was transporting prohibitive drug, and theurgency of the situation) constitutive of probable cause impelled police officers from effecting an in flagrante delicto arrestIn the case at bar, the Solicitor General proposes that the following details are suggestive of probable cause — persistenreports of rampant smuggling of firearm and other contraband articles, CHUA's watercraft differing in appearance from theusual 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 policeauthorities, and the apparent ease by which CHUA can return to and navigate his speedboat with immediate dispatchtowards 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 packageemanating the pungent odor of marijuana or other prohibited drug, 20 confidential report and/or positive identification byinformers of courier(s) of prohibited drug and/or the time and place where they will transport/deliver thesame, 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 aTammocalao beach bearing prohibited drug on the date in question. CHUA was not identified as a drug courier by a policeinformer or agent. The fact that the vessel that ferried him to shore bore no resemblance to the fishing boats of the areadid not automatically mark him as in the process of perpetrating an offense. And despite claims by CID and BADUA thatCHUA 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 sholder?

A: We were then very near him about three meters away from the male person carryingthe 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 andwhen Maj. Cid went near him, he spoke in Tagalong, English and Ilocano which accuseddid 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 theaccused.

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



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CHUA carrying a multicolored strawbag. These acts did not convey any impression that he illegally entered Philippineshores. Neither were these overt manifestations of an ongoing felonious activity nor of CHUA's criminal behevior asclearly 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 notdoing anything wrong?

A No, sir, that is our objective, to approach the person and if ever or whatever assistancethat we can give we will give. 25

The search cannot therefore be denominated as incidental to an arrest. While a contemporaneous search of a personarrested may be effected to deliver dangerous weapons or proofs or implements used in the commission of the crime andwhich search may extend to the area within his immediate control where he might gain possession of a weapon orevidence 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 incidentalsearch, the legality of the arrest is questioned in a large majority of these cases, e.g., whether an arreswas merely used as a pretext for conducting a search. In this instance, the law requires that there be firsta 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 arrestdid not fall under the exemptions allowed by the Rules of Court 28 as already shown. Fom all indications, thesearch was nothing but a fishing expedition. It is worth mentioning here that after introducing themselves, thepolice officcers immediately inquired about the contents of the bag. What else could have impelled the officersfrom displaying such inordinate interest in the bag but to ferret out evidence and discover if a felony had indeedbeen committed by CHUA — in effect to "retroactively establish probable cause and validate an illegal search andseizure."

The State then attempted to persuade this Court that there was a consented search, a legitimate waiver of theconstitutional guarantee against obtrusive searches. It is fundamental, however, that to constitute a waiver, it must firstappear that the right exists; secondly, that the person involved had knowledge, actual or constructive, of the existence ofsuch a right; and lastly, that said person had an actual intention to relinquish the right. 29 CHUA never exhibited that heknew, actually or constructively of his right against unreasonable searches or that he intentionally conceded the sameThis can be inferred from the manner by which the search performed, thus:

Q Together with your Chief Investigator, what was the first thing that you did when youapproached 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.

xxx xxx xxx

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?



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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 signlanguage of opening the bag mr. (sic ) witness?

A I pointed to the zipper of the bag and then made an action like this sir.

xxx xxx xxx

SHERIFF:

The witness demonstrating (sic ) by pointing to the straw bag and then manifesting a signto open the zipper of the straw bag moving his right hand from left to right or from theopening 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 youto 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 ourroutine 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?



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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 alreadyintroduced themselves to CHUA in three languages, but he remained completely deadpan. The police hence concludedthat CHUA failed to comprehend the three languages. When CHUA failed to respond again to the police's request to openthe bag, they resorted to what they called "sign language." They claimed that CHUA finally understood their hand motionsand gestures. This Court disagrees. If CHUA could not understand what was orally articulated to him, how could heunderstand the police's "sign language." More importantly, it cannot logically be inferred from his alleged cognizance ofthe "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 thesecases, the police officers' request to search personnel effects was orally articulated to the accused and in such languagethat left no room for doubt that the latter fully understood what was requested. In some instances, the accused evenverbally 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 subtance. But this is a trifling matter. If evidenceobtained 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 apoisonous trees 32 how much more of "forbidden fruits" which did not confirm any initial suspicion of criminal enterprise asin this case — because the police admitted that they never harbored any initial suspicion. Casting aside the regulatedsubstance as evidence, the remaining evidence on record are insufficient, feeble and ineffectual to sustain CHUA'sconviction.

Indeed, the likelihood of CHUA having actually transported methamphetamine hydrochloride cannot be quickly dispelledBut the constitutional guarantee against unreasonable searches and seizures cannot be so carelessly disregarded, asoverzealous police officers are sometimes wont to do. Fealty to the Constitution and the rights it guarantees should beparamount in their minds, otherwise their good intentions will remain as such simply because they have blundered. "Thereare those who say that . . . 'the criminal is to go free because the constable has blundered.'. . . In some cases this wilundoubtedly be the result. But . . . 'there is another consideration — the imperative of judicial integrity . . . The criminagoes 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 posecution witnesses, this Court considers them triviaas they refer to insignificant details which will not affect the outcome of the case. On a passing note, this Court calls theattention of the trial court regarding its erroneous appreciation of conspiracy. This aggravating circumstance is withoutquestion unsupported by the records. Conspiracy was not included in the indictment nor raised in the pleadings orproceedings of the trial court. It is also fundamental that conspiracy must be proven just like any other criminal accusationthat 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 inCriminal Case No. 4037 is hereby REVERSED and SET ASIDE and accused-appellant CHUA HO SAN @ TSAY HOSAN is hereby ACQUITTED of the crime charged, the evidence not being sufficient to establish his guilt beyondreasonable doubt.



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G.R. No. 120431 April 1, 1998

RODOLFO ESPANO, accused-petitioner,vs.COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, respondents.

ROMERO, J .:

This is a petition for review of the decision of the Court of Appeals in CA-G.R. CR No. 13976 dated January 161995, 1 which affirmed in toto the judgment of the Regional Trial Court of Manila, Branch 1, convincing petitioner RodolfoEspano for violation of Article II, Section 8 of Republic Act No. 6425, as amended, otherwise known as the DangerousDrugs Act.

Petitioner was charged under the following information:

That on or about July 14, 1991, in the City of Manila, Philippines, the said accused not being authorized by law topossess or use any prohibited drug, did then and there willfully, unlawfully and knowingly have in his possession

and under his custody and control twelve (12) plastic cellophane (bags) containing crushed flowering tops,marijuana weighing 5.5 grams which is a prohibited drug.

Contrary to law. 2

The evidence for the prosecution, based on the testimony of Pat. Romeo Pagilagan, shows that on July 14, 1991, at about12:30 a.m., he and other police officers, namely, Pat. Wilfredo Aquino, Simplicio Rivera, and Erlindo Lumboy of theWestern Police District (WPD), Narcotics Division went to Zamora and Pandacan Streets, Manila to confirm reports ofdrug pushing in the area. They saw petitioner selling "something" to another person. After the alleged buyer left, theyapproached petitioner, identified themselves as policemen, and frisked him. The search yielded two plastic cellophane teabags of marijuana. When asked if he had more marijuana, he replied that there was more in his house. The policemenwent to his residence where they found ten more cellophane tea bags of marijuana. Petitioner was brought to the policeheadquarters where he was charged with possession of prohibited drugs. On July 24, 1991, petitioner posted bail 3 and

the trial court issued his order of release on July 29, 1991. 4

Annabelle Alip, forensic chemist of the WPD Criminal Investigation Laboratory Section, testified that the articles sent toher by Pat. Wilfredo Aquino regarding the apprehension of a certain Rodolfo Espano for examination tested positive fomarijuana, with a total weight of 5.5 grams.

By way of defense, petitioner testified that on said evening, he was sleeping in his house and was awakened only whenthe policemen handcuffed him. He alleged that the policemen were looking for his brother-in-law Lauro, and when theycould not find the latter, he was instead brought to the police station for investigation and later indicted for possession ofprohibited drugs. His wife Myrna corroborated his story.

The trial court rejected petitioner's, defense as a "mere afterthought" and found the version of the prosecution "morecredible and trustworthy."

Thus, on August 14, 1992, the trial court rendered a decision, convicting petitioner of the crime charged, the dispositiveportion of which reads:

WHEREFORE there being proof beyond reasonable doubt, the court finds the accused Rodolfo Espano y Valeriaguilty of the crime of violation of Section 8, Article II, in relation to Section 2 (e-L) (I) of Republic Act No. 6425 asamended by Batas Pambansa Blg. 179, and pursuant to law hereby sentences him to suffer imprisonment of six(6) years and one (1) day to twelve (12) years and to pay a fine of P6,000.00 with subsidiary imprisonment incase of default plus costs.

The marijuana is declared forfeited in favor of government and shall be turned over to the Dangerous DrugsBoard without delay.



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SO ORDERED. 5

Petitioner appealed the decision to the Court of Appeals. The appellate court, however, affirmed the decision of the triacourt in toto.

Hence, this petition.

Petitioner contends that the trial and appellate courts erred in convicting him on the basis of the following: (a) the pieces oevidence seized were inadmissible; (b) the superiority of his constitutional right to be presumed innocent over the doctrineof presumption of regularity, (c) he was denied the constitutional right of confrontation and to compulsory process; and (d)his conviction was based on evidence which was irrelevant and not properly identified.

After a careful examination of the records of the case, this Court finds no compelling reason sufficient to reverse thedecisions of the trial and appellate courts.

First, it is a well settled doctrine that findings of trial courts on the credibility of witnesses deserve a high degree ofrespect. Having observed the deportment of witnesses during the trial, the trial judge is in a better position to determinethe issue of credibility and, thus, his findings will not be disturbed during appeal in the absence of any clear showing thahe had overlooked, misunderstood or misapplied some facts or circumstances of weight and substance which could havealtered the conviction of the appellants. 6

In this case, the findings of the trial court that the prosecution witnesses were more credible than those of the defensemust stand. Petitioner failed to show that Pat. Pagilagan, in testifying against him, was motivated by reasons other thanhis duty to curb drug abuse and had any intent to falsely impute to him such a serious crime as possession of prohibiteddrugs. In the absence of such ill motive, the presumption of regularity in the performance of his official duty must prevail.

In People v . Velasco, 7 this Court reiterated the doctrine of presumption of regularity in the performance of official dutywhich provides:

. . . Appellant failed to establish that Pat. Godoy and the other members of the buy-bust team are policemenengaged in mulcting or other unscrupulous activities who were motivated either by the desire to extort money orexact personal vengeance, or by sheer whim and caprice, when they entrapped her. And in the absence of proof

of any intent on the part of the police authorities to falsely impute such a serious crime against appellant, as in thiscase, the presumption of regularity in the performance of official duty, . . . , must prevail over the self-serving anduncorroborated claim of appellant that she had been framed. 8

Furthermore, the defense set up by petitioner does not deserve any consideration. He simply contended that he was in hishouse sleeping at the time of the incident. This Court has consistently held that alibi is the weakest of all defenses; and forit to prosper, the accused has the burden of proving that he was not at the scene of the crime at the time of itscommission and that it was physically impossible for him to be there. Moreover, the "claim of a 'frame-up', like alibi, is adefense that has been invariably viewed by the Court with disfavor for it can just as easily be concocted but difficult toprove, and is a common and standard line of defense in most prosecutions arising from violations of the Dangerous Drugs Act." 9 No clear and convincing evidence was presented by petitioner to prove his defense of alibi.

Second, petitioner contends that the prosecution's failure to present the alleged informant in court cast a reasonable

doubt which warrants his acquittal. This is again without merit, since failure of the prosecution to produce the informant incourt is of no moment especially when he is not even the best witness to establish the fact that a buy-bust operation hadindeed been conducted. In this case, Pat. Pagilagan, one of the policemen who apprehended petitioner, testified on theactual incident of July 14, 1991, and identified him as the one they caught in possession of prohibited drugs. Thus,

We find that the prosecution had satisfactorily proved its case against appellants. There is no compelling reasonfor us to overturn the finding of the trial court that the testimony of Sgt. Gamboa, the lone witness for theprosecution, was straightforward spontaneous and convincing. The testimony of a sole witness, if credible andpositive and satisfies the court beyond reasonable doubt, is sufficient to convict. 10

Thus on the basis of Pat. Pagilagan's testimony, the prosecution was able to prove that petitioner indeed committed thecrime charged; consequently, the finding of conviction was proper.



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circumstances, the imposable penalty shall be prision correccional in its medium period. Applying the IndeterminateSentence Law, the maximum penalty shall be taken from the medium period of prision correccional , which is two (2years, four (4) months and one (1) day to four (4) years and two (2) months, while the minimum shall be taken from thepenalty next lower in degree, which is one (1) month and one (1) day to six (6) months of arresto mayor .

WHEREFORE, the instant petition is hereby DENIED. The decision of the Court of Appeals in C.A.-G.R. CR No. 13976dated January 16, 1995 is AFFIRMED with the MODIFICATION that petitioner Rodolfo Espano is sentenced to suffer an

indeterminate penalty of TWO (2) months and ONE (1) day of arresto mayor , as minimum to TWO (2) years, FOUR (4)months and ONE (1) day of prision correccional , as maximum.

SO ORDERED.



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G.R. No. 80806 October 5, 1989

LEO PITA doing business under the name and style of PINOY PLAYBOY, petitioner,vs.THE COURT OF APPEALS, RAMON BAGATSING, and NARCISO CABRERA, respondents.

William C. Arceno for petitioner.

Casibang, Perello and De Dios for private respondent.

SARMIENTO, J.:

The petitioner, publisher of Pinoy Playboy , a "men's magazine", seeks the review of the decision of the Court of Appeals, 1 rejecting his appeal from the decision of the Regional Trial Court, dismissing his complaint for injunctive relief.He invokes, in particular, the guaranty against unreasonable searches and seizures of the Constitution, as well as itsprohibition against deprivation of property without due process of law. There is no controversy as to the facts. We quote:

On December 1 and 3, 1983, pursuing an Anti-Smut Campaign initiated by the Mayor of the City ofManila, Ramon D. Bagatsing, elements of the Special Anti-Narcotics Group, Auxilliary Services Bureau,Western Police District, INP of the Metropolitan Police Force of Manila, seized and confiscated fromdealers, distributors, newsstand owners and peddlers along Manila sidewalks, magazines, publicationsand other reading materials believed to be obscene, pornographic and indecent and later burned theseized materials in public at the University belt along C.M. Recto Avenue, Manila, in the presence oMayor Bagatsing and several officers and members of various student organizations.

Among the publications seized, and later burned, was "Pinoy Playboy" magazines published and co-edited by plaintiff Leo Pita.

On December 7, 1983, plaintiff filed a case for injunction with prayer for issuance of the writ of preliminaryinjunction against Mayor Bagatsing and Narcisco Cabrera, as superintendent of Western Police District of

the City of Manila, seeking to enjoin and/or restrain said defendants and their agents from confiscatingplaintiffs magazines or from otherwise preventing the sale or circulation thereof claiming that themagazine is a decent, artistic and educational magazine which is not per seobscene, and that thepublication is protected by the Constitutional guarantees of freedom of speech and of the press.

By order dated December 8, 1 983 the Court set the hearing on the petition for preliminary injunction onDecember 14,1983 and ordered the defendants to show cause not later than December 13, 1983 why thewrit prayed for should not be granted.

On December 12, 1983, plaintiff filed an Urgent Motion for issuance of a temporary restraining orderagainst indiscriminate seizure, confiscation and burning of plaintiff's "Pinoy Playboy" Magazines, pendinghearing on the petition for preliminary injunction in view of Mayor Bagatsing's pronouncement to continuethe Anti-Smut Campaign. The Court granted the temporary restraining order on December 14, 1983.

In his Answer and Opposition filed on December 27,1983 defendant Mayor Bagatsing admitted theconfiscation and burning of obscence reading materials on December 1 and 3, 1983, but claimed that thesaid materials were voluntarily surrendered by the vendors to the police authorities, and that the saidconfiscation and seizure was (sic) undertaken pursuant to P.D. No. 960, as amended by P.D. No. 969which amended Article 201 of the Revised Penal Code. In opposing the plaintiffs application for a writ ofpreliminary injunction, defendant pointed out that in that anti- smut campaign conducted on December 1and 3, 1983, the materials confiscated belonged to the magazine stand owners and peddlers whovoluntarily surrendered their reading materials, and that the plaintiffs establishment was not raided.

The other defendant, WPD Superintendent, Narcisco Cabrera, filed no answer.



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On January 5,1984, plaintiff filed his Memorandum in support of the issuance of the writ of preliminaryinjunction, raising the issue as to "whether or not the defendants and/or their agents can without a courtorder confiscate or seize plaintiffs magazine before any judicial finding is made on whether said magazineis obscene or not".

The restraining order issued on December 14,1983 having lapsed on January 3,1984, the plaintiff filed anurgent motion for issuance of another restraining order, which was opposed by defendant on the ground

that issuance of a second restraining order would violate the Resolution of the Supreme Court datedJanuary 11, 1983, providing for the Interim Rules Relative to the Implementation of Batas Pambansa Blg.129, which provides that a temporary restraining order shall be effective only for twenty days from date ofits issuance.

On January 9, 1984 defendant filed his Comment and/or Rejoinder Memorandum in support of hisopposition to the issuance of a writ of preliminary injunction.

On January 11, 1984, the trial court issued an Order setting the case for hearing on January 16, 1984 "forthe parties to adduce evidence on the question of whether the publication 'Pinoy Playboy Magazinealleged (sic) seized, confiscated and/or burned by the defendants, are obscence per se or not".

On January 16, 1984, the Court issued an order granting plaintiffs motion to be given three days "to file a

reply to defendants' opposition dated January 9, 1984, serving a copy thereof to the counsel for thedefendants, who may file a rejoinder within the same period from receipt, after which the issue ofPreliminary Injunction shall be resolved".

Plaintiff's supplemental Memorandum was filed on January 18, 1984. Defendant filed his Comment onplaintiff s supplemental Memorandum on January 20, 1984, and plaintiff filed his "Reply-Memorandum" todefendants' Comment on January 25, 1984.

On February 3, 1984, the trial court promulgated the Order appealed from denying the motion for a writ ofpreliminary injunction, and dismissing the case for lack of merit. 2

The Appellate Court dismissed the appeal upon the grounds, among other things, as follows:

We cannot quarrel with the basic postulate suggested by appellant that seizure of allegedly obscenepublications or materials deserves close scrutiny because of the constitutional guarantee protecting theright to express oneself in print (Sec. 9, Art. IV), and the protection afforded by the constitution againstunreasonable searches and seizure (Sec. 3, Art.IV). It must be equally conceded, however, that freedomof the press is not without restraint as the state has the right to protect society from pornographicliterature that is offensive to public morals, as indeed we have laws punishing the author, publishers andsellers of obscene publications (Sec. I , Art. 201, Revised Penal Code, as amended by P.D. No. 960 andP.D. No. 969). Also well settled is the rule that the right against unreasonable searches and seizuresrecognizes certain exceptions, as when there is consent to the search or seizure, (People vs. Malesugui63 Phil. 22) or search is an incident to an arrest, (People vs. Veloso, 48 Phil. 169; Alvero vs. Dizon, 76Phil. 637) or is conducted in a vehicle or movable structure (See Papa vs. Magno, 22 SCRA 857). 3

The petitioner now ascribes to the respondent court the following errors:

1. The Court of Appeals erred in affirming the decision of the trial court and, in effect, holding that thepolice officers could without any court warrant or order seize and confiscate petitioner's magazines on thebasis simply of their determination that they are obscene.

2. The Court of Appeals erred in affirming the decision of the trial court and, in effect, holding that the triacourt could dismiss the case on its merits without any hearing thereon when what was submitted to it forresolution was merely the application of petitioner for the writ of preliminary injunction. 4

The Court states at the outset that it is not the first time that it is being asked to pronounce what "obscene" means or whatmakes for an obscene or pornographic literature. Early on, in People vs. Kottinger , 5 the Court laid down the test, in



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determining the existence of obscenity, as follows: "whether the tendency of the matter charged as obscene, is to depraveor corrupt those whose minds are open to such immoral influences and into whose hands a publication or other articlecharged as being obscene may fall." 6 "Another test," so Kottinger further declares, "is that which shocks the ordinary andcommon sense of men as an indecency. " 7 Kottinger hastened to say, however, that "[w]hether a picture is obscene orindecent must depend upon the circumstances of the case, 8 and that ultimately, the question is to be decided by the"judgment of the aggregate sense of the community reached by it." 9

Yet Kottinger , in its effort to arrive at a "conclusive" definition, succeeded merely in generalizing a problem that has grownincreasingly complex over the years. Precisely, the question is: When does a publication have a corrupting tendency, orwhen can it be said to be offensive to human sensibilities? And obviously, it is to beg the question to say that a piece ofliterature has a corrupting influence because it is obscene, and vice-versa.

Apparently, Kottinger was aware of its own uncertainty because in the same breath, it would leave the final say to ahypothetical "community standard" — whatever that is — and that the question must supposedly be judged from case tocase.

About three decades later, this Court promulgated People v. Go Pin, 10 a prosecution under Article 201 of the RevisedPenal Code. Go Pin, was also even hazier:

...We agree with counsel for appellant in part. If such pictures, sculptures and paintings are shown in ar

exhibit and art galleries for the cause of art, to be viewed and appreciated by people interested in art,there would be no offense committed. However, the pictures here in question were used not exactly forart's sake but rather for commercial purposes. In other words, the supposed artistic qualities of saidpictures were being commercialized so that the cause of art was of secondary or minor importance. Gainand profit would appear to have been the main, if not the exclusive consideration in their exhibition; and itwould not be surprising if the persons who went to see those pictures and paid entrance fees for theprivilege of doing so, were not exactly artists and persons interested in art and who generally go to artexhibitions and galleries to satisfy and improve their artistic tastes, but rather people desirous of satisfyingtheir morbid curiosity and taste, and lust, and for love for excitement, including the youth who because oftheir immaturity are not in a position to resist and shield themselves from the ill and perverting effects ofthese pictures. 11

xxx xxx xxx

As the Court declared, the issue is a complicated one, in which the fine lines have neither been drawn nor divided. It iseasier said than done to say, indeed, that if "the pictures here in question were used not exactly for art's sake but ratherfor commercial purposes," 12 the pictures are not entitled to any constitutional protection.

It was People v. Padan y Alova , 13 however, that introduced to Philippine jurisprudence the "redeeming" element thashould accompany the work, to save it from a valid prosecution. We quote:

...We have had occasion to consider offenses like the exhibition of still or moving pictures of women in thenude, which we have condemned for obscenity and as offensive to morals. In those cases, one might yetclaim that there was involved the element of art; that connoisseurs of the same, and painters andsculptors might find inspiration in the showing of pictures in the nude, or the human body exhibited in

sheer nakedness, as models in tableaux vivants. But an actual exhibition of the sexual act, preceded byacts of lasciviousness, can have no redeeming feature. In it, there is no room for art. One can see nothingin it but clear and unmitigated obscenity, indecency, and an offense to public morals, inspiring andcausing as it does, nothing but lust and lewdness, and exerting a corrupting influence specially on theyouth of the land. ... 14

Padan y Alova, like Go Pin, however, raised more questions than answers. For one thing, if the exhibition was attendedby "artists and persons interested in art and who generally go to art exhibitions and galleries to satisfy and improve theirartistic tastes," 15 could the same legitimately lay claim to "art"? For another, suppose that the exhibition was so presentedthat "connoisseurs of [art], and painters and sculptors might find inspiration," 16 in it, would it cease to be a case oobscenity?



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Padan y Alova, like Go Pin also leaves too much latitude for judicial arbitrament, which has permitted an ad lib of Ideasand "two-cents worths" among judges as to what is obscene and what is art.

In a much later decision, Gonzalez v. Kalaw Katigbak , 17 the Court, following trends in the United States, adopted the test"Whether to the average person, applying contemporary standards, the dominant theme of the material taken as a wholeappeals to prurient interest." 18 Kalaw-Katigbak represented a marked departure from Kottinger in the sense that imeasured obscenity in terms of the "dominant theme" of the work, rather than isolated passages, which were central

toKottinger (although both cases are agreed that "contemporary community standards" are the final arbiters of what is"obscene"). Kalaw-Katigbak undertook moreover to make the determination of obscenity essentially a judicial questionand as a consequence, to temper the wide discretion Kottinger had given unto law enforcers.

It is significant that in the United States, constitutional law on obscenity continues to journey from development todevelopment, which, states one authoritative commentator (with ample sarcasm), has been as "unstable as it isunintelligible." 19

Memoirs v. Massachusettes, 20 a 1966 decision, which characterized obscenity as one "utterly without any redeemingsocial value," 21 marked yet another development.

The latest word, however, is Miller v. California, 22 which expressly abandoned Massachusettes, and established "basicguidelines," 23 to wit: "(a) whether 'the average person, applying contemporary standards' would find the work, taken as a

whole, appeals to the prurient interest . . .; (b) whether the work depicts or describes, in a patently offensive way, sexualconduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary,artistic, political, or scientific value." 24

(A year later, the American Supreme Court decided Hamling v. United States 25 which repeated Miller, and Jenkins vGeorgia, 26 yet another reiteration of Miller. Jenkins, curiously, acquitted the producers of the motion picture, CarnaKnowledge, in the absence of "genitals" portrayed on screen, although the film highlighted contemporary Americansexuality.)

The lack of uniformity in American jurisprudence as to what constitutes "obscenity" has been attributed to the reluctanceof the courts to recognize the constitutional dimension of the problem . 27 Apparently, the courts have assumed tha"obscenity" is not included in the guaranty of free speech, an assumption that, as we averred, has allowed a climate ofopinions among magistrates predicated upon arbitrary, if vague theories of what is acceptable to society. And "[t]here islittle likelihood," says Tribe, "that this development has reached a state of rest, or that it will ever do so until the Courrecognizes that obscene speech is speech nonetheless, although it is subject — as in all speech — to regulation in theinterests of [society as a whole] — but not in the interest of a uniform vision of how human sexuality should be regardedand portrayed." 28

In the case at bar, there is no challenge on the right of the State, in the legitimate exercise of police power, to suppresssmut provided it is smut. For obvious reasons, smut is not smut simply because one insists it is smut. So is it equallyevident that individual tastes develop, adapt to wide-ranging influences, and keep in step with the rapid advance ofcivilization. What shocked our forebears, say, five decades ago, is not necessarily repulsive to the present generationJames Joyce and D.H. Lawrence were censored in the thirties yet their works are considered important literaturetoday. 29 Goya's La Maja desnuda was once banned from public exhibition but now adorns the world's most prestigiousmuseums.

But neither should we say that "obscenity" is a bare (no pun intended) matter of opinion. As we said earlier, it is thedivergent perceptions of men and women that have probably compounded the problem rather than resolved it.

What the Court is impressing, plainly and simply, is that the question is not, and has not been, an easy one to answer, asit is far from being a settled matter. We share Tribe's disappointment over the discouraging trend in American decisionallaw on obscenity as well as his pessimism on whether or not an "acceptable" solution is in sight.

In the final analysis perhaps, the task that confronts us is less heroic than rushing to a "perfect" definition of "obscenity", ifthat is possible, as evolving standards for proper police conduct faced with the problem, which, after all, is the plaintspecifically raised in the petition.



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(c) The person aggrieved by the forfeiture action of the Chief of Constabulary may, within fifteen (15) daysafter his receipt of a copy of the decision, appeal the matter to the Secretary of National Defense forreview. The decision of the Secretary of National Defense shall be final and unappealable. (Sec. 2, PDNo, 960 as amended by PD No. 969.)

Sec. 4. Additional Penalties. — Additional penalties shall be imposed as follows:

1. In case the offender is a government official or employee who allows the violations of Section I hereofthe penalty as provided herein shall be imposed in the maximum period and, in addition, the accessorypenalties provided for in the Revised Penal Code, as amended, shall likewise be imposed . 40

Under the Constitution, on the other hand:

SEC. 3. The right of the people to be secure in their persons, houses, papers, and effects againstunreasonable searches and seizures of whatever nature and for any purpose shall not be violated, andno 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 oraffirmation of the complainant and the witnesses he may produce, and particularly describing the place tobe searched, and the persons or things to be seized.

It is basic that searches and seizures may be done only through a judicial warrant, otherwise, they become unreasonableand subject to challenge. In Burgos v. Chief of Staff, AFP , 43 We counter-minded the orders of the Regional Trial Courtauthorizing the search of the premises of We Forum and Metropolitan Mail , two Metro Manila dailies, by reason of adefective warrant. We have greater reason here to reprobate the questioned raid, in the complete absence of a warrantvalid or invalid. The fact that the instant case involves an obscenity rap makes it no different from Burgos, a political casebecause, and as we have indicated, speech is speech, whether political or "obscene".

The Court is not ruling out warrantless searches, as the Rules of Court (1964 rev.) (the Rules then prevailing), provide:

SEC. 12. Search without warrant of personarrested. — A person charged with an offense may besearched for dangerous weapons or anything which may be used as proof of the commission of theoffense. 44

but as the provision itself suggests, the search must have been an incident to a lawful arrest, and the arrest must be onaccount of a crime committed. Here, no party has been charged, nor are such charges being readied against any party,under Article 201, as amended, of the Revised Penal Code.

We reject outright the argument that "[t]here is no constitutional nor legal provision which would free the accused of alcriminal responsibility because there had been no warrant," 45 and that "violation of penal law [must] be punished." 46 Fostarters, there is no "accused" here to speak of, who ought to be "punished". Second, to say that the respondent Mayorcould have validly ordered the raid (as a result of an anti-smut campaign) without a lawful search warrant because, in hisopinion, "violation of penal laws" has been committed, is to make the respondent Mayor judge, jury, and executioner rolledinto one. And precisely, this is the very complaint of the petitioner.

We make this resume.

1. The authorities must apply for the issuance of a search warrant from a judge, if in their opinion, anobscenity rap is in order;

2. The authorities must convince the court that the materials sought to be seized are "obscene", and posea clear and present danger of an evil substantive enough to warrant State interference and action;

3. The judge must determine whether or not the same are indeed "obscene:" the question is to beresolved on a case-to-case basis and on His Honor's sound discretion.

4. If, in the opinion of the court, probable cause exists, it may issue the search warrant prayed for;



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5. The proper suit is then brought in the court under Article 201 of the Revised Penal Code;

6. Any conviction is subject to appeal. The appellate court may assess whether or not the propertiesseized are indeed "obscene".

These do not foreclose, however, defenses under the Constitution or applicable statutes, or remedies against abuse ofofficial power under the Civil Code" 47 or the Revised Penal code . 48

WHEREFORE, the petition is GRANTED. The decision of the respondent court is REVERSED and SET ASIDE. Itappearing, however, that the magazines subject of the search and seizure ave been destroyed, the Court declines togrant affirmative relief. To that extent, the case is moot and academic.

SO ORDERED.



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G.R. No. L-25434 July 25, 1975

HONORABLE ARSENIO N. ROLDAN, JR., in his capacity as Acting Commissioner, Philippine FisheriesCommission, and THE PHILIPPINE NAVY, petitioners,vs.HONORABLE FRANCISCO ARCA, as Presiding Judge of the Court of First Instance of Manila (Branch 1) andMORABE, DE GUZMAN & COMPANY, respondents.

Office of the Solicitor General Arturo A. Alafriz and Solicitor Augusto M. Amores for petitioners.

J. C. Yuseco and A.R. Narvasa for private respondent.

MAKASIAR, J.:

A petition for certiorari and prohibition with preliminary injunction to restrain respondent Judge from enforcing his orderdated October 18, 1965, and the writ of preliminary mandatory injunction thereunder issued.

On April 3, 1964, respondent company filed with the Court of First Instance of Manila a civil case docketed as No. 56701against petitioner Fisheries Commissioner Arsenio N. Roldan, Jr., for the recovery of fishing vessel Tony Lex VI (one oftwo fishing boats in question) which had been seized and impounded by petitioner Fisheries Commissioner through thePhilippine Navy.

On April 10, 1964, respondent company prayed for a writ of preliminary mandatory injunction with respondent court, butsaid prayer was, however, denied.

On April 28, 1964, the Court of First Instance of Manila set aside its order of April 10, 1964 and granted respondentcompany's motion for reconsideration praying for preliminary mandatory injunction. Thus, respondent company tookPossession of the vessel Tony Lex VI from herein petitioners by virtue of the abovesaid writ.

On December 10, 1964, the Court of First Instance of Manila dismissed Civil Case No. 56701 for failure of thereinpetitioner (respondent company herein) to prosecute as well as for failure of therein defendants (petitioners herein)toappear on the scheduled date of hearing. The vessel, Tony Lex VI or Srta. Winnie however, remained in the possessionof respondent company.

On July 20, 1965, petitioner Fisheries Commissioner requested the Philippine Navy to apprehend vessels Tony Lex VIand Tony Lex III, also respectively called Srta. Winnie and Srta. Agnes, for alleged violations of some provisions of theFisheries Act and the rules and regulations promulgated thereunder.

On August 5 or 6, 1965, the two fishing boats were actually seized for illegal fishing with dynamite. Fish caught withdynamite and sticks of dynamite were then found aboard the two vessels.

On August 18, 1965, the Fisheries Commissioner requested the Palawan Provincial Fiscal to file criminal charges against

the crew members of the fishing vessels.

On September 30, 1965, there were filed in the court of First Instance of Palawan a couple of informations, one againstthe crew members of Tony Lex III, and another against the crew members of Tony Lex VI — both for violations of Act No4003, as amended by Commonwealth Acts Nos. 462, 659 and 1088, i.e., for illegal fishing with the use of dynamite. Onthe same day, the Fiscal filed an ex parte motion to hold the boats in custody as instruments and therefore evidence ofthe crime (p. 54, rec.), and cabled the Fisheries Commissioner to detain the vessels (p. 56, rec.).

On October 2 and 4, likewise, the Court of First Instance of Palawan ordered the Philippine Navy to take the boats incustody.



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On October 2, 1965, respondent company filed a complaint with application for preliminary mandatory injunction,docketed as Civil Case No. 62799 with the Court of First Instance of Manila against herein petitioners. Among others, itwas alleged that at the time of the seizure of the fishing boats in issue, the same were engaged in legitimate fishingoperations off the coast of Palawan; that by virtue of the offer of compromise dated September 13, 1965 by respondentcompany to the Secretary of Agriculture and Natural Resources, the numerous violations of the Fishery Laws, if any, bythe crew members of the vessels were settled.

On October 9, 1965, petitioners, represented by the Solicitor General, opposed the above-mentioned complaint, allegingamong others, that: (1) the issuance of the writ would disrupt the status quo of the parties and would render nugatory anydecision of the respondent court favorable to the defendant; (2) that the vessels, being instruments of a crime in criminacases Nos. 3416 and 3417 filed with the Court of First Instance of Palawan, the release of the vessels sans thecorresponding order from the above-mentioned court would deprive the same of its authority to dispose of the vessels inthe criminal cases and the Provincial Fiscal would not be able to utilize said vessels as evidence in the prosecution of saidcases; (3) that as petitioners herein were in possession of one of the vessels in point, they cannot now be deprived of thelegal custody thereof by reason of the dismissal of Civil Case No. 56701; (4) that petitioner Fisheries Commissioner hasthe power to seize and detain the vessels pursuant to Section 5 of Republic Act No. 3215 in relation to Sections 903 and2210 of the Revised Tariff and Customs Code; (5) that respondents herein have not exhausted administrative remediesbefore coming to court; (6) that the compromise agreement approved by the Secretary of Agriculture and NaturaResources and indorsed to the Fisheries Commissioner is never a bar to the prosecution of the crime perpetrated by thecrew members of the vessels belonging to respondent company.

And again, on October 15, 1965, herein petitioners filed their memorandum praying for the denial of the application forpreliminary mandatory injunction. On the same day, October 15, 1965, herein petitioners filed an urgent motion to submiadditional documentary evidence.

On October 18, 1965, herein petitioners, as defendants in said Civil Case No. 62799, filed their answer to the complaintwith affirmative defenses, reiterating the grounds in their opposition to the issuance of a writ of preliminary mandatoryinjunction and adding that herein private respondent admitted committing the last violation when it offered in its letterdated September 21, 1965 to the Acting Commissioner of Fisheries, to compromise said last violation (Exh. 12, pp. 60-61rec.).

On said day, October 18, 1965, the respondent Judge issued the challenged order granting the issuance of the writ ofpreliminary mandatory injunction and issued the preliminary writ upon the filing by private respondent of a bond of

P5,000.00 for the release of the two vessels(pp. 95-102, rec.).

On October 19, 1965, herein petitioners filed a motion for reconsideration of the order issuing the preliminary writ onOctober 18, 1965 on the ground, among others, that on October 18, 1965 the Philippine Navy received from the PalawanCourt of First Instance two orders dated October 2 and 4, 1965 requiring the Philippine Navy to hold the fishing boats incustody and directing that the said vessels should not be released until further orders from the Court, and that the bond ofP5,000.00 is grossly insufficient to cover the Government's losses in case the two vessels, which are worth P495,000.00are placed beyond the reach of the Government, thus frustrating their forfeiture as instruments of the crime (pp. 103-109rec.).1äwphï1.ñët

On November 23, 1965, respondent Judge denied the said motion for reconsideration (p. 110, rec.).

WE rule that the respondent Judge of the Manila Court of First Instance acted without jurisdiction and with grave abuse odiscretion when he issued on October 18, 1965 the order directing the issuance of a writ of preliminary mandatoryinjunction and when he refused to reconsider the same.

I

When the respondent Judge issued the challenged order on October 18, 1965 and the writ of preliminary mandatoryinjunction pursuant thereto, the fishing vessels were already under the jurisdiction of the Court of First Instance ofPalawan by virtue of its orders of October 2 and 4, 1965, upon motion of the Provincial Fiscal (pp. 54, 55, rec.), directingthe Philippine Navy to detain (pp. 108, 109, rec.) said vessels, which are subject to forfeiture as instruments of the crimeto be utilized as evidence in Criminal Cases Nos. 3416 and 3417 for illegal fishing pending in said court (pp. 54-55, rec.)The said vessels were seized while engaging in prohibited fishing within the territorial waters of Palawan (pp. 45, 48,-53,rec.) and hence within the jurisdiction of the Court of First Instance of Palawan, in obedience to the rule that "the place



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Section 4 of Republic Act No. 3512 approved on March 20, 1963 empowers the Fisheries Commissioner to carry out theprovisions of the Fisheries Act, as amended, and all rules and regulations promulgated thereunder, to make searches andseizures personally or through his duly authorized representatives in accordance with the Rules of Court, of"explosives such as ... dynamites and the like ...; including fishery products, fishing equipment, tackle and other things thaare subject to seizure under existing fishery laws"; and "to effectively implement the enforcement of existing fishery lawson illegal fishing."

Paragraph 5 of Section 4 of the same Republic Act 3512 likewise transferred to and vested in the Philippine FisheriesCommission "all the powers, functions and duties heretofore exercised by the Bureau of Customs, Philippine Navy andPhilippine Constabulary over fishing vessels and fishery matters ..."

Section 12 of the Fisheries Act, otherwise known as Republic Act No. 4003, as amended, prohibits fishing with dynamitesor other explosives which is penalized by Section 76 thereof "by a fine of not less than P1,500.00 nor more thanP5,000.00, and by imprisonment for not less than one (1) year and six (6) months nor more than five (5) years, aside fromthe confiscation and forfeiture of all explosives, boats, tackles, apparel, furniture, and other apparatus used in fishing inviolation of said Section 12 of this Act." Section 78 of the same Fisheries Law provides that "in case of a second offensethe vessel, together with its tackle, apparel, furniture and stores shall be forfeited to the Government."

The second paragraph of Section 12 also provides that "the possession and/or finding, of dynamite, blasting caps andother explosives in any fishing boat shall constitute a presumption that the said dynamite and/or blasting capsand

explosives are being used for fishing purposes in violation of this Section, and that the possession or discovery in anyfishing boat or fish caught or killed by the use of dynamite or other explosives, under expert testimony, shall constitute apresumption that the owner, if present in the fishing boat, or the fishing crew have been fishing with dynamite or otherexplosives." (Emphasis supplied).

Under Section 78 of the Fisheries Act, as amended, any person, association or corporation fishing in deep sea fisherywithout the corresponding license prescribed in Sections 17 to 22 Article V of the Fisheries Act or any other order orregulation deriving force from its provisions, "shall be punished for each offense by a fine of not more than P5,000.00, orimprisonment, for not more than one year, or both, in the discretion of the Court;Provided , That in case of an associationor corporation, the President or manager shall be directly responsible for the acts of his employees or laborers if it isproven that the latter acted with his knowledge; otherwise the responsibility shall extend only as far as fine isconcerned: Provided, further , That in the absence of a known owner of the vessel, the master, patron or person in chargeof such vessel shall be responsible for any violation of this Act: and Provided, finally, That in case of a second offense

the vessel together with its tackle, apparel, furniture and stores shall be forfeited to the Government" (Emphasis supplied)

Under Section 13 of Executive Order No. 389 of December 23, 1950, reorganizing the Armed Forces of the Philippines,the Philippine Navy has the function, among others, "to assist the proper governmental agencies in the enforcement oflaws and regulations pertaining to ... fishing ..." (46 OG 5905, 5911).

Section 2210 of the Tariff and Customs Code, as amended by PD No. 34 of October 27, 1972, authorized any official orperson exercising police authority under the provisions of the Code, to search and seize any vessel or air craft as well asany trunk, package, bag or envelope on board and to search any person on board for any breach or violation of thecustoms and tariff laws.

When the Philippine Navy, upon request of the Fisheries Commissioner, apprehended on August 5 or 6, 1965 the fishingboats Tony Lex III and Tony Lex VI, otherwise known respectively as Srta. Agnes and Srta. Winnie, these vessels werefound to be without the necessary license in violation of Section 903 of the Tariff and Customs Code and therefore subjectto seizure under Section 2210 of the same Code, and illegally fishing with explosives and without fishing license requiredby Sections 17 and 18 of the Fisheries Law (pp. 46-47, rec.).1äwphï1.ñët

The operation of the fishing boat Tony Lex III was suspended pursuant to the order dated January 28, 1964 issued by theCommissioner of Fisheries pending the final determination of the case against it for illegal fishing with explosives onJanuary 21, 1964 (p. 34, rec.) and remained suspended until its apprehension on August 5 or 6, 1965 (p. 46, rec.).

For illegal fishing with explosives on March 23, 1963, the renewal of the fishing boat license of Tony Lex VI wassuspended for one year from the time said boat was moored at Pier 14 at North Harbor, Manila, without prejudice to theinstitution of a criminal case against its owner and/or operator, pursuant to the order dated May 19, 1964 issued by the



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Commissioner of Fisheries (pp. 35-36, rec.), the motion for reconsideration of which order was denied by theCommissioner of Fisheries in an order dated August 17, 1964 (pp. 41-42, rec.).

For illegal fishing with dynamite on March 28, 1963, the operation of Tony Lex VI was suspended by the Commissioner ofFisheries in an order dated April 1, 1963 (p. 62, rec.).

For illegal fishing again with explosives on April 25, 1963, the fishing boat Tony Lex VI together with its tackle, apparel,

furniture and all other apparatus used in fishing was ordered confiscated and forfeited in favor of the Government and afine in the amount of P5,000.00 was imposed on its owners-operators, without prejudice to the filing of the necessarycriminal action, pursuant to the order of June 2, 1964 of the Commissioner of Fisheries(pp. 37-38, rec.).

Again, for comitting the same violation on June 19, 1963, a fine in the amount of P5,000.00 was imposed on the ownersoperators of fishing boat Tony Lex VI pursuant to the order of June 4, 1964 issued by the Commissioner of Fisheries (pp.39-40, rec.)..

It appears, therefore, that since January 28, 1964, the fishing boat Tony Lex III was suspended from operating and wasordered moored at Pier 14, North Harbor, Manila (pp. 34, 46-47, rec.); and that the fishing vessel Tony Lex VI wassuspended for one year from May 24, 1964 and was actually ordered forfeited to the Government pursuant to the order ofJune 2, 1964 for repeated violations of Section 12 of the Fisheries Act (pp. 37- 38. rec.). 1äwphï1.ñët As a matter of factwhen apprehended on August 5 or 6, 1965, both vessels were found to be without any license or permit for coastwise

trade or for fishing and unlawfully fishing with explosives, for which reason their owners and crew were accordinglyindicted by the Provincial Fiscal of Palawan for illegal fishing with dynamite and without the requisite license (pp. 48-53,rec.).

As heretofore intimated, the two fishing boats were apprehended on numerous occasions for fishing with dynamite fromMarch 28, 1963 to March 11, 1964, which violations private respondent, as owner-operator, sought to compromise byoffering to pay a fine of P21,000.00 for all said prior violations.

Such previous violations of Sections 12, 17 and 18 of the Fisheries Act committed by the two fishing boats, Tony Lex IIIand Tony Lex VI, from March 28, 1963 until August 5 or 6, 1965, rendered the said vessels subject to forfeiture underSections 76 and 78 of the Fisheries Act, as amended.

Search and seizure without search warrant of vessels and air crafts for violations of the customs laws have been thetraditional exception to the constitutional requirement of a search warrant, because the vessel can be quickly moved outof the locality or jurisdiction in which the search warrant must be sought before such warrant could be secured; hence it isnot practicable to require a search warrant before such search or seizure can be constitutionally effected (Papa vs. Mago,L-27360, Feb. 28, 1968, 22 SCRA 857, 871-74; Magoncia vs. Palacio, 80 Phil. 770, 774; Caroll vs. U.S. 267, pp. 132,149, 158; Justice Fernando, The Bill of Rights, 1972 ed., p. 225; Gonzales, Philippine Constitutional Law, 1966 ed., p300).

The same exception should apply to seizures of fishing vessels breaching our fishery laws. They are usually equippedwith powerful motors that enable them to elude pursuing ships of the Philippine Navy or Coast Guard.

Another exception to the constitutional requirement of a search warrant for a valid search and seizure, is a search orseizure as an incident to a lawful arrest (Alvero vs. Dizon, 76 Phil. 637; Justice Fernando, The Bill of Rights, 1972 ed., p.

224). Under our Rules of Court, a police officer or a private individual may, without a warrant, arrest a person (a) who hascommitted, is actually committing or is about to commit an offense in his presence; (b) who is reasonably believed to havecommitted an offense which has been actually committed; or (c) who is a prisoner who has escaped from confinementwhile serving a final judgment or from temporary detention during the pendency of his case or while being transferred fromone confinement to another (Sec. 6, Rule 113, Revised Rules of Court). In the case at bar, the members of the crew of thetwo vessels were caught in flagrante illegally fishing with dynamite and without the requisite license. Thus theirapprehension without a warrant of arrest while committing a crime is lawful. Consequently, the seizure of the vessel, itsequipment and dynamites therein was equally valid as an incident to a lawful arrest.

The alleged compromise approved by the Secretary of Agriculture and Natural Resources on September 13, 1965 (pp63-64, 158-159, rec.) cannot be invoked by the respondents because the said compromise referred to about thirtyviolations of the fisheries law committed by the private respondent from March 28, 1963 to March 11, 1964. The violations



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by the two vessels of private respondent by reason of which these vessels were apprehended and detained by thePhilippine Navy upon request of the Commissioner of Fisheries, were committed on August 5 or 6, 1965.

Moreover, the power to compromise would exist only before a criminal prosecution is instituted; otherwise the DepartmentSecretary or any of his sub-alterns can render criminal prosecutions for violations of the fisheries law a mere mockery. It isnot in the public interest nor is it good policy to sustain the viewpoint that the Department Secretary can compromisecriminal cases involving public, not private, offenses after the indictment had been instituted in court. The fishing vessels

together with all their equipment and the dynamites found therein are not only evidence of the crime of illegal fishing butalso subject to forfeiture in favor of the Government as instruments of the crime (Art. 45, Revised Penal Code, Sec. 78, Act No. 4003, as amended). Section 80(j) of Act No. 4003, as amended, precludes such a compromise the moment theFisheries Commissioner decides to prosecute the criminal action in accordance with Sections 76 and 78 of the otherpenal provisions of the fisheries law. Furthermore, any compromise shall be upon the recommendation of the FisheriesCommission (Section 80[i], Act No. 4003), which did not recommend such a compromise for the violation on August 5 or6, 1965 of Section 12 in relation to Sections 76 and 78 of Act No. 4003, as amended. On the contrary, the FisheriesCommissioner requested the Provincial Fiscal to institute the criminal cases (pp. 43-45, rec.) and the Provincial Fiscafiled the corresponding informations docketed as Criminal Cases Nos. 3416 and 3417 on September 30, 1965 against theowners and the members of the crew of the vessels (pp. 48-53, rec.).

It should be noted that in the first indorsement dated September 13, 1965 of the Secretary of Agriculture and NaturalResources approving the compromise fine of P21,000.00 for the various violations committed previous to August 5 or 6,

1965 (pp. 34-42, 47, 58-64, 149-155, 158-159, rec.), the Department Secretary "believes that the offer made by thecompany was an implied admission of violations of said provisions of the Fisheries Law and regulations, ..." (pp. 63, 158,rec.). The said approval was granted after the private respondent filed a motion for reconsideration of the indorsementdated March 5, 1965 of the Secretary of Agriculture and Natural Resources disapproving the offer by private respondento pay the fine by way of compromise.

There can be no dispute that the term fishing boat (employed in the second paragraph of Section 12 of the Fisheries Acapplies to the vessels Tony Lex III and Tony Lex VI. Even private respondent refers to said fishing boats as fishingvessels "engaged in fishing operations" or "in commercial fishing" in paragraph IV of its complaint in Civil Case No. 62799(p. 18, rec.), as well as in its various communications to the Fisheries Commissioner (pp. 60-61, 65, 82rec.).1äwphï1.ñët The two fishing vessels Tony Lex III and Tony Lex VI likewise fall under the term vessel used inSections 17, 76 and 78, as well as the term boats utilized in the second paragraph of Section 76 of the Fisheries Act.They can also fall under the term fishing equipment employed in Section 4 of Republic Act No. 3512; because a fishing

equipment is never complete and cannot be effectively used in off-shore or deep-sea fishing without the fishing boat orfishing vessel itself. And these two vessels of private respondent certainly come under the term fishing vessels employedin paragraph 5 of Section 4 of the same Republic Act 3512 creating the Fisheries Commission.

Hence, no useful purpose can be served in trying to distinguish between boat and vessel with reference to Tony Lex IIand Tony Lex VI. As a matter of fact, the accepted definition of vessel includes "every description of water craft, large orsmall, used or capable of being used as a means of transportation on water" (Cope versus Vallete, etc., 199 U.S. 625;U.S. vs. Holmes, 104 Fed. 884; Charles Barnes Co. vs. One Dredge Boat, 169 Fed. 895; and Yu Con vs. Ipil, 41 Phil780).

The word boat in its ordinary sense, means any water craft (Monongahela River Construction, etc. vs. Hardsaw, 77 NE363, 365). The fishing boats Tony Lex III and Tony Lex VI are likewise vessels within the meaning of the term vessel usedin Sections 903 and 2210 of the Tariff and Customs Code.

WHEREFORE, THE PETITION IS HEREBY GRANTED AND THE ORDER OF RESPONDENT JUDGE DATEDOCTOBER 18, 1965, THE WRIT OF PRELIMINARY MANDATORY INJUNCTION ISSUED THEREUNDER AND THEORDER DATED NOVEMBER 23, 1965, ARE HEREBY SET ASIDE AS NULL AND VOID, WITH COSTS AGAINSTPRIVATE RESPONDENT.



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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.

Ricardo C. Valmonte for himself and his co-petitioners.

PADILLA, J .:

This is a petition for prohibition with preliminary injunction and/or temporary restraining order, seeking the declaration ofcheckpoints in Valenzuela, Metro Manila or elsewhere, as unconstitutional and the dismantling and banning of the sameor, in the alternative, to direct the respondents to formulate guidelines in the implementation of checkpoints, for theprotection of the people.

Petitioner Ricardo C. Valmonte sues in his capacity as citizen of the Republic, taxpayer, member of the Integrated Bar o

the Philippines (IBP), and resident of Valenzuela, Metro Manila; while petitioner Union of Lawyers and Advocates forPeople'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 ofInstruction 02/87 of the Philippine General Headquarters, AFP, with the mission of conducting security operations withinits area of responsibility and peripheral areas, for the purpose of establishing an effective territorial defense, maintainingpeace and order, and providing an atmosphere conducive to the social, economic and political development of theNational Capital Region. 1 As part of its duty to maintain peace and order, the NCRDC installed checkpoints in variousparts 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 thecheckpoints, considering that their cars and vehicles are being subjected to regular searches and check-ups, especially atnight or at dawn, without the benefit of a search warrant and/or court order. Their alleged fear for their safety increasedwhen, at dawn of 9 July 1988, Benjamin Parpon, a supply officer of the Municipality of Valenzuela, Bulacan, was gunneddown 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 inspire ofwarning shots fired in the air. Petitioner Valmonte also claims that, on several occasions, he had gone thru thesecheckpoints 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/orseizures without search warrant or court order in violation of the Constitution; 2 and, instances have occurred where acitizen, while not killed, had been harassed.

Petitioners' concern for their safety and apprehension at being harassed by the military manning the checkpoints are notsufficient grounds to declare the checkpoints as per se illegal. No proof has been presented before the Court to show thatin the course of their routine checks, the military indeed committed specific violations of petitioners' right against unlawfusearch and seizure or other rights.

In a case filed by the same petitioner organization, Union of Lawyers and Advocates for People's Right (ULAP) vsIntegrated National Police, 3 it was held that individual petitioners who do not allege that any of their rights were violatedare 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 whoserights have been infringed, 4 or threatened to be infringed. What constitutes a reasonable or unreasonable search and



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seizure in any particular case is purely a judicial question, determinable from a consideration of the circumstancesinvolved. 5

Petitioner Valmonte's general allegation to the effect that he had been stopped and searched without a search warrant bythe military manning the checkpoints, without more, i.e., without stating the details of the incidents which amount to aviolation of his right against unlawful search and seizure, is not sufficient to enable the Court to determine whether therewas 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 tobe 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 fairgrounds, 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 securitymeasure to enable the NCRDC to pursue its mission of establishing effective territorial defense and maintaining peaceand order for the benefit of the public. Checkpoints may also be regarded as measures to thwart plots to destabilize thegovernment, in the interest of public security. In this connection, the Court may take judicial notice of the shift to urbancenters and their suburbs of the insurgency movement, so clearly reflected in the increased killings in cities of police andmilitary men by NPA "sparrow units," not to mention the abundance of unlicensed firearms and the alarming rise inlawlessness 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 abnormaltimes. Between the inherent right of the state to protect its existence and promote public welfare and an individual's rightagainst 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 thatall governmental power is susceptible of abuse. But, at the cost of occasional inconvenience, discomfort and evenirritation to the citizen, the checkpoints during these abnormal times, when conducted within reasonable limits, are part ofthe 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 andrefinement of the rules in the conduct of the police and military manning the checkpoints was ordered by the NationaCapital 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, Griño-Aquino,Medialdea and Regalado, JJ., concur.



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G.R. No. 136292 January 15, 2002

RUDY CABALLES y TAIÑO, petitioner,vs.COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, respondents.

PUNO, J .:

This is an appeal by certiorari from the decision1 of respondent Court of Appeals dated September 15, 1998 whichaffirmed the judgment rendered by the Regional Trial Court of Santa Cruz, Laguna, finding herein petitioner, RudyCaballes y Taiño, guilty beyond reasonable doubt of the crime of theft, and the resolution 2 dated November 9, 1998 whichdenied petitioner's motion for reconsideration.

In an Information3 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 Provinceof Laguna, and within the jurisdiction of this Honorable Court, the above-named accused, with intent of gain, andwithout the knowledge and consent of the owner thereof, the NATIONAL POWER CORPORATION, did then andthere 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 theaforesaid 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 inBarangay 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 paleand nervous.

With appellant's consent, the police officers checked the cargo and they discovered bundles of 3.08 mmaluminum/galvanized conductor wires exclusively owned by National Power Corporation (NPC). The conductorwires weighed 700 kilos and valued at P55, 244.45. Noceja asked appellant where the wires came from andappellant 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 StationDanilo Cabale took pictures of the appellant and the jeep loaded with the wires which were turned over to thePolice 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 PagsanjanLaguna; 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 RestyFernandez who requested him to transport in his jeepney conductor wires which were in Cavinti, Laguna. He toldResty 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 somethingunlawful was going to happen. Sgt. Callos advised him to proceed with the loading of the wires and that theformer 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 wereold so the cable wires were loaded in appellant's jeep and covered with kakawati leaves. The loading was doneby about five (5) masked men. He was promised P1,000.00 for the job. Upon crossing a bridge, the two vehiclesseparated but in his case, he was intercepted by Sgt. Noceja and Pat. De Castro. When they discovered thecables, he told the police officers that the cables were loaded in his jeep by the owner, Resty Fernandez. But

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despite his explanation, he was ordered to proceed to police headquarters where he was interrogated. The policeofficers did not believe him and instead locked him up in jail for a week. "4

On April 27, 1993, the court a quo rendered judgment5 the dispositive portion of which reads:

"WHEREFORE, finding the accused guilty beyond reasonable doubt of the crime of Theft of propertyworthP55,244.45, 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, asmaximum, to indemnify the complainant National Power Corporation in the amount of P55, 244.45, and to pay thecosts."

On appeal, the Court of Appeals affirmed the judgment of conviction but deleted the award for damages on the groundthat the stolen materials were recovered and modified the penalty imposed, to wit:

"WHEREFORE, the appealed decision is hereby AFFIRMED with the modification that appellant RUDYCABALLES is found guilty beyond reasonable doubt as principal in theft, defined and penalized under Articles308 and 309, par. 1, Revised Penal Code, and there being no modifying circumstances, he is hereby meted anindeterminate penalty of Four (4) years, Nine (9) months and Eleven (11) days of prision correccional , asminimum term, to Eight (8) years, Eight (8) months and one (1) day of prision mayor, as maximum term. No civilindemnity 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 vehicleand seized the wires found therein without a search warrant and when samples of the wires and references tothem 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 entrapmentoperation 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 reasonabledoubt 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 thepolice 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 arreston the ground that no warrant was issued to that effect. The Court cannot again sustain such view. In the case ofPeople v. Lo Ho [Wing], G.R. No. 88017, January 21, 1991, it has been held that 'considering that before awarrant can be obtained, the place, things and persons to be searched must be described to the satisfaction ofthe issuing judge - a requirement which borders on the impossible in the case of smuggling effected by the use ofa moving vehicle that can transport contraband from one place to another with impunity, a warrantless search of amoving 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 arrestedand searched for the evidence and tokens of his crime without a warrant, would be to leave society, to a largeextent, at the mercy of the shrewdest, the most expert, and the most depraved of criminals, facilitating theirescape in many instances' (Ibid.). In Umil v. Ramos, 187 SCRA 311, and People vs. Ortiz, 191 SCRA 836, theSupreme 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 theaccused 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



















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search and seizure. He insists that, contrary to the findings of the trial court as adopted by the appellate court, he did notgive any consent, express or implied, to the search of the vehicle. Perforce, any evidence obtained in violation of his rightagainst 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 againstunreasonable 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 unreasonablesearches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant orwarrant of arrest shall issue except upon probable cause to be determined personally by the judge afterexamination under oath or affirmation of the complainant and the witnesses he may produce, and particularlydescribing 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 violationof 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 Courtand by prevailing jurisprudence;8 (2) seizure of evidence in plain view;9 (3) search of moving vehicles;10 (4) consentedwarrantless 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 becomplied with. In the exceptional events where warrant is not necessary to effect a valid search or seizure, or when thelatter cannot be performed except without a warrant, what constitutes a reasonable or unreasonable search or seizure ispurely a judicial question, determinable from the uniqueness of the circumstances involved, including the purpose of thesearch or seizure, the presence or absence of probable cause, the manner in which the search and seizure was madethe 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 bya search warrant. The main issue is whether the evidence taken from the warrantless search is admissible against theappellant. Without said evidence, the prosecution cannot prove the guilt of the appellant beyond reasonabledoubt.1âwphi1.nêt

I. Search of moving vehicle

Highly regulated by the government, the vehicle's inherent mobility reduces expectation of privacy especially when itstransit in public thoroughfares furnishes a highly reasonable suspicion amounting to probable cause that the occupantcommitted a criminal activity.15 Thus, the rules governing search and seizure have over the years been steadily liberalizedwhenever a moving vehicle is the object of the search on the basis of practicality. This is so considering that before awarrant could be obtained, the place, things and persons to be searched must be described to the satisfaction of theissuing judge — a requirement which borders on the impossible in the case of smuggling effected by the use of a movingvehicle that can transport contraband from one place to another with impunity. We might add that a warrantless search ofa moving vehicle is justified on the ground that it is not practicable to secure a warrant because the vehicle can be quicklymoved 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 madeat 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 conducindiscriminate searches without warrants if made within the interior of the territory and in the absence of probablecause.18 Still and all, the important thing is that there was probable cause to conduct the warrantless search, which muststill be present in such a case.

Although the term eludes exact definition, probable cause signifies a reasonable ground of suspicion supported bycircumstances sufficiently strong in themselves to warrant a cautious man's belief that the person accused is guilty of theoffense with which he is charged; or the existence of such facts and circumstances which could lead a reasonablydiscreet and prudent man to believe that an offense has been committed and that the items, articles or objects sought inconnection with said offense or subject to seizure and destruction by law is in the place to be searched.19 The required



















































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probable cause that will justify a warrantless search and seizure is not determined by a fixed formula but is resolvedaccording 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 checkpointswhich has been declared to be not illegal per se,21 for as long as it is warranted by the exigencies of public order 22 andconducted in a way least intrusive to motorists.23 A checkpoint may either be a mere routine inspection or it may involvean extensive search.

Routine inspections are not regarded as violative of an individual's right against unreasonable search. The search which isnormally permissible in this instance is limited to the following instances: (1) where the officer merely draws aside thecurtain of a vacant vehicle which is parked on the public fair grounds;24 (2) simply looks into a vehicle;25 (3) flashes a lightherein without opening the car's doors;26 (4) where the occupants are not subjected to a physical or body search;27 (5where the inspection of the vehicles is limited to a visual search or visual inspection;28 and (6) where the routine check isconducted 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 visuasearch or visual inspection of herein petitioner's vehicle. They had to reach inside the vehicle, lift the kakawati leaves andlook 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 intothe vehicle. . . [W]e are aware of no case holding that an officer did not conduct a search when he physicallyintruded 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 thevehicle. . . In doing so, his inspection went beyond that portion of the vehicle which may be viewed from outsidethe vehicle by either inquisitive passersby or diligent police officers, and into the area protected by the Fourthamendment, 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 beconstitutionally permissible only if the officers conducting the search have reasonable or probable cause to believe, beforethe search, that either the motorist is a law-offender or they will find the instrumentality or evidence pertaining to a crime inthe vehicle to be searched.31

This Court has in the past found probable cause to conduct without a judicial warrant an extensive search of movingvehicles in situations where (1) there had emanated from a package the distinctive smell of marijuana; (2) agents of theNarcotics Command ("Narcom") of the Philippine National Police ("PNP") had received a confidential report frominformers that a sizeable volume of marijuana would be transported along the route where the search was conducted; (3Narcom agents had received information that a Caucasian coming from Sagada, Mountain Province, had in hispossession prohibited drugs and when the Narcom agents confronted the accused Caucasian, because of a conspicuousbulge 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 theaccused would be transporting marijuana;32 (5) the accused who were riding a jeepney were stopped and searched bypolicemen who had earlier received confidential reports that said accused would transport a large quantity of marijuanaand (6) where the moving vehicle was stopped and searched on the basis of intelligence information and clandestinereports by a deep penetration agent or spy - one who participated in the drug smuggling activities of the syndicate towhich 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 patrobecame suspicious when they saw that the back of the vehicle was covered with kakawati leaves which, according tothem, was unusual and uncommon.

Pat. Alex de Castro recounted the incident as follows:

"ATTY. SANTOS



























































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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 whenwe spotted a suspicious jeepney so we stopped the jeepney and searched the load of the jeepney and we foundout (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 becamesuspicious 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 withkakawati 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 appearancefrom the usual fishing boats that commonly cruise over the Bacnotan seas coupled with the suspicious behavior of theaccused 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 inappearance from the usual fishing boats that commonly cruise over the Bacnotan seas, CHUA's illegal entry intothe Philippines x x x, CHUA's suspicious behavior, i.e., he attempted to flee when he saw the police authoritiesand the apparent ease by which CHUA can return to and navigate his speedboat with immediate dispatchtowards 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 orpackage emanating the pungent odor of marijuana or other prohibited drug, confidential report and/or positiveidentification by informers of courier of prohibited drug and/or the time and place where they will transport/deliverthe same, suspicious demeanor or behavior, and suspicious bulge in the waist - accepted by this Court assufficient to justify a warrantless arrest exists in this case. There was no classified information that a foreignerwould 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 noresemblance to the fishing boats of the area did not automatically mark him as in the process ofperpetrating 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 petitionerwas carrying stolen cable wires in his vehicle which could otherwise have sustained their suspicion. Our jurisprudence isreplete with cases where tipped information has become a sufficient probable cause to effect a warrantless search andseizure.37 Unfortunately, none exists in this case.

II. Plain view doctrine



















182

It cannot likewise be said that the cable wires found in petitioner's vehicle were in plain view, making its warrantlessseizure valid.

Jurisprudence is to the effect that an object is in plain view if the object itself is plainly exposed to sight. Where the objecseized 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 contentsare 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 isdeemed in plain view. It must be immediately apparent to the police that the items that they observe may be evidence of acrime, 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 insacks39 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 askpetitioner what was loaded in his vehicle. In such a case, it has been held that the object is not in plain view which couldhave 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 tohow 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 withinthe purview of the constitutional guarantee.

Doubtless, the constitutional immunity against unreasonable searches and seizures is a personal right which may bewaived. The consent must be voluntary in order to validate an otherwise illegal detention and search, i.e., the consent isunequivocal, specific, and intelligently given, uncontaminated by any duress or coercion.41 Hence, consent to a search isnot to be lightly inferred, but must be shown by clear and convincing evidence.42 The question whether a consent to asearch was in fact voluntary is a question of fact to be determined from the totality of all the circumstances .43 Relevant tothis determination are the following characteristics of the person giving consent and the environment in which consent isgiven: (1) the age of the defendant; (2) whether he was in a public or secluded location; (3) whether he objected to thesearch 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 policequestioning; (8) the environment in which the questioning took place; and (9) the possibly vulnerable subjective state ofthe person consenting.46 It is the State which has the burden of proving, by clear and positive testimony, that thenecessary 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 thevehicle contained aluminum wires, sir.











































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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 becamesuspicious 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 sawthe 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" (s ic ), 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 thesecases, the police officers' request to search personnel effects was orally articulated to the accused and in such languagethat left no room for doubt that the latter fully understood what was requested. In some instance, the accused evenverbally 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

theappellants who were riding in a taxi were stopped by two policemen who asked permission to search the vehicle and theappellants 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 tohide and had done nothing wrong. In People vs. Cuizon,52 the accused admitted that they signed a written permissionstating that they freely consented to the search of their luggage by the NBI agents to determine if they were carryingshabu. In People vs. Montilla,53 it was held that the accused spontaneously performed affirmative acts of volition byhimself opening the bag without being forced or intimidated to do so, which acts should properly be construed as a clearwaiver of his right. In People vs. Omaweng,54 the police officers asked the accused if they could see the contents of hisbag to which the accused said "you can see the contents but those are only clothings." Then the policemen asked if theycould open and see it, and accused answered "you can see it." The Court said there was a valid consentedsearch.1âwphi1.nêt

In case of consented searches or waiver of the constitutional guarantee against obtrusive searches, it is fundamental thatto constitute a waiver, it must first appear that (1) the right exists; (2) that the person involved had knowledge, eitheractual or constructive, of the existence of such right; and (3) the said person had an actual intention to relinquish theright.55

In the case at bar, the evidence is lacking that the petitioner intentionally surrendered his right against unreasonablesearches. The manner by which the two police officers allegedly obtained the consent of petitioner for them to conduct thesearch leaves much to be desired. When petitioner's vehicle was flagged down, Sgt. Noceja approached petitionerand "told him I will look at the contents of his vehicle and he answered in the positive." We are hard put to believethat by uttering those words, the police officers were asking or requesting for permission that they be allowed to searchthe vehicle of petitioner. For all intents and purposes, they wereinforming, nay, imposing upon herein petitioner thathey will search his vehicle. The "consent" given under intimidating or coercive circumstances is no consent within thepurview of the constitutional guaranty. In addition, in cases where this Court upheld the validity of consented search, it wil



































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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, thestatements of the police officers were not asking for his consent; they were declaring to him that they will look insidehis vehicle. Besides, it is doubtful whether permission was actually requested and granted because when Sgt. Noceja wasasked during his direct examination what he did when the vehicle of petitioner stopped, he answered that he removed thecover of the vehicle and saw the aluminum wires. It was only after he was asked a clarificatory question that he addedthat 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 wasthat 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 searchIn People vs. Barros,57 appellant Barros, who was carrying a carton box, boarded a bus where two policemen wereriding. The policemen inspected the carton and found marijuana inside. When asked who owned the box, appellantdenied ownership of the box and failed to object to the search. The Court there struck down the warrantless search asillegal and held that the accused is not to be presumed to have waived the unlawful search conducted simply because hefailed 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 thecitizens in the position of either contesting an officer's authority by force, or waiving his constitutional rights; butinstead 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'sconviction. His guilt can only be established without violating the constitutional right of the accused against unreasonablesearch and seizure.

WHEREFORE, the impugned decision is REVERSED and SET ASIDE, and accused Rudy Caballes is herebyACQUITTED of the crime charged. Cost de oficio.

SO ORDERED.















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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.

PUNO, J .:

Before us is an appeal from the Decision dated November 19, 1998 of the Regional Trial Court, Branch 65, Tarlac Cityfinding appellant Agpanga Libnao and her co-accused Rosita Nunga guilty of violating Article II, Section 4 of R.A. No6425, otherwise known as the Dangerous Drugs Act of 1972.1 For their conviction, each was sentenced to suffer animprisonment 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 conspiringconfederating 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 transparenplastic weighing approximately eight (8) kilos, which is in violation of Section 4, Article II of RA 6425, otherwiseknown 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 PhilippineNational Police (PNP) stationed in Tarlac, Tarlac began conducting surveillance operation on suspected drug dealers inthe area. They learned from their asset that a certain woman from Tajiri, Tarlac and a companion from Baguio City weretransporting 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 abriefing in connection with a tip which his office received that the two drug pushers, riding in a tricycle, would be making adelivery that night. An hour later, the Police Alert Team installed a checkpoint in Barangay Salapungan to apprehend thesuspects. Witness SPO1 Marlon Gamotea, PO3 Florante Ferrer and SPO3 Roberto Aquino were assigned to man thecheckpoint.

At about 1:00 o’clock in the morning of the following day, SPO1 Gamotea and PO3 Ferrer flagged down a passingtricycle. It had two female passengers seated inside, who were later identified as the appellant Agpanga Libnao and herco-accused Rosita Nunga.3 In front of them was a black bag. Suspicious of the black bag and the two’s uneasy behaviorwhen asked about its ownership and content, the officers invited them to Kabayan Center No.2 located at the samebarangay. 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 asthe barangay captain arrived, the black bag was opened in the presence of the appellant, her co-accused and personneof the center. Found inside it were eight bricks of leaves sealed in plastic bags and covered with newspaper. The leaveswere suspected to be marijuana.

To determine who owns the bag and its contents, SPO3 Antonio interrogated the two. Rosita Nunga stated that it wasowned by the appellant. The latter, in turn, disputed this allegation. Thereafter, they were made to sign a confiscationreceipt without the assistance of any counsel, as they were not informed of their right to have one. During the course ofthe investigation, not even close relatives of theirs were present.



186

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 weremarijuana leaves weighing eight kilos.4

For their part, both accused denied the accusation against them. Rosita Nunga testified that in the evening of October19,1996, she went to buy medicine for her ailing child at a pharmacy near the Tarlac Provincial Hospital. The child wassuffering 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 acheckpoint in Barangay Salapungan. She was taken aback when the officer invited her to the Kabayan Center. It wasthere that she was confronted with the black bag allegedly containing eight bricks of marijuana leaves. She disputedowning the bag and knowing its contents. She also denied sitting beside the appellant in the passenger’s seat inside thetricycle, 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 submittedin 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 andarrested 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 reclusionperpetua 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 accusedagainst 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 custodiainvestigation 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 theprosecution’s witnesses which inconsistencies cast doubt and make incredible the contention and version of theprosecution.

4. The Honorable Court gravely abused its discretion when it appreciated and considered the documentary andobject 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 thatat the time she was apprehended by the police officers, she was not committing any offense but was merely riding atricycle. In the same manner, she impugns the search made on her belongings as illegal as it was done without a validwarrant or under circumstances when warrantless search is permissible. Consequently, any evidence obtained therein isinadmissible against her.

These arguments fail to impress. The general rule is that a search may be conducted by law enforcers only on thestrength 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 searchesand seizures of whatever nature and for any purpose shall be inviolable, and no search warrant and warrant ofarrest shall issue except upon probable cause to be determined personally by the judge after examination under



187

oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place tobe 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 validlyissued search warrant or warrant of arrest. Thus, the fundamental protection accorded by the search and seizure clause isthat 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 seizureis not absolute. There are certain familiar exceptions to the rule, one of which relates to search of movingvehicles.9 Warrantless search and seizure of moving vehicles are allowed in recognition of the impracticability of securinga warrant under said circumstances as the vehicle can be quickly moved out of the locality or jurisdiction in which thewarrant may be sought.10 Peace officers in such cases, however, are limited to routine checks where the examination ofthe vehicle is limited to visual inspection.11 When a vehicle is stopped and subjected to an extensive search, such wouldbe constitutionally permissible only if the officers made it upon probable cause, i.e., upon a belief, reasonably arising ouof circumstances known to the seizing officer, that an automobile or other vehicle contains as item, article or object whichby 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 accusedwho was observed to be acting suspiciously;14 (c) where the accused who were riding a jeepney were stopped andsearched by policemen who had earlier received confidential reports that said accused would transport a quantity ofmarijuana;15 (d) where Narcom agents had received information that a Caucasian coming from Sagada, MountainProvince had in his possession prohibited drugs and when the Narcom agents confronted the accused Caucasianbecause of a conspicuous bulge in his waistline, he failed to present his passport and other identification papers whenrequested to do so;16 (f) where the moving vehicle was stopped and searched on the basis of intelligence information andclandestine reports by a deep penetration agent or spy -- one who participated in the drug smuggling activities of thesyndicate to which the accused belong -- that said accused were bringing prohibited drugs into the country;17 (g) wherethe arresting officers had received a confidential information that the accused, whose identity as a drug distributor wasestablished in a previous test-buy operation, would be boarding MV Dona Virginia and probably carrying shabu withhim;18 (h) where police officers received an information that the accused, who was carrying a suspicious-looking grayluggage bag, would transport marijuana in a bag to Manila; 19 and (i) where the appearance of the accused and the colo

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 hadbeen conducting surveillance operation for three months in the area. The surveillance yielded the information that once amonth, appellant and her co-accused Rosita Nunga transport drugs in big bulks. At 10:00 pm of October 19, 1996, thepolice received a tip that the two will be transporting drugs that night riding a tricycle. Surely, the two were interceptedthree 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, thewarrantless 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 deliveryor transporting prohibited drugs in violation of Article II, Section 4 of R.A. No. 6425. Under the Rules of Court, one of theinstances 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, arresta person:

(a) When in his presence, the person to be arrested has committed, is actually committing, or is attemptingto commit an offense;

(b) When an offense has in fact just been committed, and he has probable cause to believe based on personalknowledge of facts or circumstances that the person to be arrested has committed it; and



188


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. Henceshe 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. Indetermining the guilt of the appellant and her co-accused, the trial court based its decision on the testimonies ofprosecution 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 becausethey were not assisted by a counsel. Confronted with this same issue, this court finds the postulate to rest ongood authority and will therefore reiterate its inadmissibility.

Since the prosecution had not presented any extrajudicial confession extracted from both accused as evidence oftheir guilt, the court finds it needless to discuss any answer given by both accused as a result of the policeinterrogation while in their custody. By force of necessity, therefore, the only issue to be resolved by thecourt 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 theprosecution despite the latter’s failure to formally offer them. Absent any formal offer, she argues that they again must bedeemed inadmissible.

The contention is untenable. Evidence not formally offered can be considered by the court as long as they have beenproperly identified by testimony duly recorded and they have themselves been incorporated in the records of thecase.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 thecase because witnesses properly identified those exhibits, and their testimonies are recorded.25 Furthermore, appellant’scounsel 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 inconsistencybetween the testimony of SPO1 Marlon Gamotea, who said that it was SPO2 Antonio who opened the black bagcontaining the marijuana; and that of SPO2 Antonio, who declared that the bag was already open when he arrived at theKabayan Center. She then focuses on the police officers’ failure to remember the family name of the driver of the tricyclewhere 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 tomaterial points regarding the basic elements of the crime. They are inconsequential that they do not affect the credibility othe 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 principaoccurrence.27 The identity of the person who opened the bag is clearly immaterial to the guilt of the appellant. Besides, itis to be expected that the testimony of witnesses regarding the same incident may be inconsistent in some aspectsbecause 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 tricycledriver for the reason that it was unnecessary for them to do so. It was not shown that the driver was in complicity with theappellant 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. Whenpolice officers have no motive to testify falsely against the accused, courts are inclined to uphold this presumption. 29 In



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this case, no evidence has been presented to suggest any improper motive on the part of the police enforcers in arrestingthe appellant.

Against the credible positive testimonies of the prosecution witnesses, appellant’s defense of denial and alibi cannotstand. The defense of denial and alibi has been invariably viewed by the courts with disfavor for it can just as easily beconcocted and is a common and standard defense ploy in most cases involving violation of the Dangerous Drugs Act. 30 Ihas 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 theaffiant. Hence, we reject her defense.

IN VIEW WHEREOF, the instant appeal is DENIED. The decision of the trial court finding appellant guilty beyondreasonable doubt of the offense of violation of Article II, Section 4 of R.A. No. 6425 in relation to R.A. No. 7659, andsentencing her to an imprisonment of reclusion perpetua and to pay a fine of two million pesos is hereby AFFIRMED.

SO ORDERED.



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G.R. No. 96177 January 27, 1993

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,vs.MARI MUSA y HANTATALU, accused-appellant.


Pablo L. Murillo for accused-appellant.

ROMERO, J .:

The appellant, Mari Musa, seeks, in this appeal, the reversal of the decision, dated August 31, 1990, 1 of the RegionaTrial Court (RTC) of Zamboanga City, Branch XII, finding him guilty of selling marijuana in violation of Article II, Section 4of Republic Act No. 6425, as amended, otherwise known as the Dangerous Drugs Act of 1972.

The information filed on December 15, 1989 against the appellant reads:

That on or about December 14, 1989, in the City of Zamboanga, Philippines, and within the jurisdiction ofthis Honorable Court, theabove-named accused, not being authorized by law, did then and there, wilfully, unlawfully andfeloniously sell to one SGT. AMADO ANI, two (2) wrappers containing dried marijuana leaves, knowingthe same to be a prohibited drug.

CONTRARY TO LAW. 2

Upon his arraignment on January 11, 1990, the appellant pleaded not guilty. 3

At the trial, the prosecution presented three (3) witnesses, namely: (1) Sgt. Amado Ani, Jr. of the 9th Narcotics Command(NARCOM) of Zamboanga City, who acted as poseur-buyer in the buy-bust operation made against the appellant; (2)T/Sgt. Jesus Belarga, also of the 9th Narcotics Command of Zamboanga City, who was the NARCOM team leader of thebuy-bust operation; and (3) Athena Elisa P. Anderson, the Document Examiner and Forensic Chemist of PC-INP CrimeLaboratory of Regional Command (RECOM) 9. The evidence of the prosecution was summarized by the trial court asfollows:

Prosecution evidence shows that in the morning of December 13, 1989, T/Sgt. Jesus Belarga, leader of aNARCOTICS COMMAND (NARCOM) team based at Calarian, Zamboanga City, instructed Sgt. Amado Ani to conduct surveillance and test buy on a certain Mari Musa of Suterville, Zamboanga CityInformation received from civilian informer was that this Mari Musa was engaged in selling marijuana insaid place. So Sgt. Amado Ani, another NARCOM agent, proceeded to Suterville, in company with aNARCOM civilian informer, to the house of Mari Musa to which house the civilian informer had guidedhim. The same civilian informer had also described to him the appearance of Mari Musa. Amado Ani wasable to buy one newspaper-wrapped dried marijuana (Exh. "E") for P10.00. Sgt. Ani returned to theNARCOM office and turned over the newspaper-wrapped marijuana to T/Sgt. Jesus Belarga. SgtBelarga inspected the stuff turned over to him and found it to be marijuana.

The next day, December 14, 1989, about 1:30 P.M., a buy-bust was planned. Sgt. Amado Ani wasassigned as the poseur buyer for which purpose he was given P20.00 (with SN GA955883) by Belarga.Thebuy-bust money had been taken by T/Sgt. Jesus Belarga from M/Sgt. Noh Sali Mihasun, Chief ofInvestigation Section, and for which Belarga signed a receipt (Exh. "L" & "L-l" ) The team under Sgt.Foncargas was assigned as back-up security. A pre-arranged signal was arranged consisting of Sgt. Ani'sraising his right hand, after he had succeeded to buy the marijuana. The two NARCOM teams proceededto the target site in two civilian vehicles. Belarga's team was composed of Sgt. Belarga, team leader, Sgt. Amado Ani, poseur buyer, Sgt. Lego and Sgt. Biong.



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Arriving at the target site, Sgt. Ani proceeded to the house of Mari Musa, while the rest of the NARCOMgroup positioned themselves at strategic places about 90 to 100 meters from Mari Musa's house. T/Sgt.Belarga could see what went on between Ani and suspect Mari Musa from where he was. Aniapproached Mari Musa, who came out of his house, and asked Ani what he wanted. Ani said he wantedsome more stuff. Ani gave Mari Musa the P20.00 marked money. After receiving the money, Mari Musawent back to his house and came back and gave Amado Ani two newspaper wrappers containing driedmarijuana. Ani opened the two wrappers and inspected the contents. Convinced that the contents were

marijuana, Ani walked back towards his companions and raised his right hand. The two NARCOM teamsriding the two civilian vehicles, sped towards Sgt. Ani. Ani joined Belarga's team and returned to thehouse.

At the time Sgt. Ani first approached Mari Musa, there were four persons inside his house: Mari Musaanother boy, and two women, one of whom Ani and Belarga later came to know to be Mari Musa's wifeThe second time, Ani with the NARCOM team returned to Mari Musa's house, the woman, who was laterknown as Mari Musa's wife, slipped away from the house. Sgt. Belarga frisked Mari Musa but could notfind the P20.00 marked money with him. Mari Musa was then asked where the P20.00 was and he toldthe NARCOM team he has given the money to his wife (who had slipped away). Sgt. Belarga also founda plastic bag containing dried marijuana inside it somewhere in the kitchen. Mari Musa was then placedunder arrest and brought to the NARCOM office. At Suterville, Sgt. Ani turned over to Sgt. Belarga thetwo newspaper-wrapped marijuana he had earlier bought from Mari Musa (Exhs. "C" & "D").

In the NARCOM office, Mari Musa first gave his name as Hussin Musa. Later on, Mari Musa gave his truename — Mari Musa. T/Sgt. Jesus Belarga turned over the two newspaper-wrapped marijuana (bought atthe buy-bust), the one newspaper-wrapped marijuana (bought at the test-buy) and the plastic bagcontaining more marijuana (which had been taken by Sgt. Lego inside the kitchen of Mari Musa) to thePC Crime Laboratory, Zamboanga City, for laboratory examination. The turnover of the marijuanaspecimen to the PC Crime Laboratory was by way of a letter-request, dated December 14, 1989 (Exh."B"), which was stamped "RECEIVED" by the PC Crime Laboratory (Exh. "B-1") on the same day.

Mrs. Athena Elisa P. Anderson, the Forensic Chemist of the PC Crime Laboratory, examined themarijuana specimens subjecting the same to her three tests. All submitted specimens she examined gavepositive results for the presence of marijuana. Mrs. Anderson reported the results of her examination inher Chemistry Report D-100-89, dated December 14, 1989, (Exh. "J", "J-1", "J-2", "J-3", "J-4" and "J-5")

Mrs. Anderson identified in court the two newspaper wrapped marijuana bought at thebuy-bust on December 14, 1989, through her initial and the weight of each specimen written with red inkon each wrapper (Exhs. "C-1" and "D-1"). She also identified the one newspaper-wrapped marijuanabought at the test-buy on December 13, 1989, through her markings (Exh. "E-1"). Mrs. Anderson alsoidentified her Chemistry Report (Exh. "J" & sub-markings.)

T. Sgt. Belarga identified the two buy-bust newspaper wrapped marijuana through his initial, the words"buy-bust" and the words "December 14, 1989, 2:45 P.M." (written on Exhs. "C" and "D"). Belarga alsoidentified the receipt of the P20 marked money (with SN GA955883) (Exh. "L"), dated December 141989, and his signature thereon (Exh"L-1"). He also identified the letter-request, dated December 14, 1989, addressed to the PC CrimeLaboratory (Exh. "B") and his signature thereon (Exh. "B-2") and the stamp of the PC Crime Laboratorymarked "RECEIVED" (Exh. "B-1"). 4

For the defense, the following testified as witnesses: (1) the accused-appellant Mari H. Musa; and (2) Ahara R. Musa, hiswife. The trial court summarized the version of the defense, thus:

[O]n December 14, 1989, at about 1:30 in the afternoon, Mari Musa was in his house at SutervilleZamboanga City. With him were his wife, Ahara Musa, known as Ara, his one-year old child, a womanmanicurist, and a male cousin named Abdul Musa. About 1:30 that afternoon, while he was beingmanicured at one hand, his wife was inside the one room of their house, putting their child to sleep. ThreeNARCOM agents, who introduced themselves as NARCOM agents, dressed in civilian clothes, got insideMari Musa's house whose door was open. The NARCOM agents did not ask permission to enter thehouse but simply announced that they were NARCOM agents. The NARCOM agents searched MarMusa's house and Mari Musa asked them if they had a search warrant. The NARCOM agents were just



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After the exchange, Sgt. Ani approached the other NARCOM agents and made the pre-arranged signal of raising his righhand. 15 The NARCOM agents, accompanied by Sgt. Ani, went inside the house and made the arrest. The agentssearched the appellant and unable to find the marked money, they asked him where it was. The appellant said that hegave it to his wife. 16

The Court, after a careful reading of the record, finds the testimony of Sgt. Ani regarding the buy-bust operation, whichresulted in the apprehension, prosecution and subsequent conviction of the appellant, to be direct, lucid and forthright

Being totally untainted by contradictions in any of the material points, it deserves credence.

The contention that the appellant could not have transacted with Sgt. Ani because they do not know each other is withoutmerit. The day before thebuy-bust operation, Sgt. Ani conducted a test-buy and he successfully bought a wrapper of marijuana from the appellant.Through this previous transaction, Sgt. Ani was able to gain the appellant's confidence for the latter to sell more marijuanato Sgt. Ani the following day, during the buy-bust operation. Moreover, the Court has held that what matters is not anexisting familiarity between the buyer and the seller, for quite often, the parties to the transaction may be strangers, buttheir agreement and the acts constituting the sale and delivery of the marijuana. 17

The appellant, again to cast doubt on the credibility of Sgt. Ani, argues that it was impossible for the appellant to sellmarijuana while his wife, cousin and manicurist were present. But the place of the commission of the crime of sellingprohibited drugs has been held to be not crucial 18 and the presence of other people apart from the buyer and seller wil

not necessarily prevent the consummation of the illegal sale. As the Court observed in People v. Paco, 19 these factorsmay sometimes camouflage the commission of the crime. In the instant case, the fact that the other people inside theappellant's house are known to the appellant may have given him some assurance that these people will not report him tothe authorities.

The appellant, besides assailing Sgt. Ani's credibility, also questions the credibility of T/Sgt. Belarga. The appellantsubmits that since T/Sgt. Belarga admitted that he was about 90 meters away from Sgt. Ani and the appellant, he couldnot have possibly witnessed the sale. The appellant invokes People v Ale 20 where the Court observed that from a distance of 10-15 meters, a policeman cannot distinguish between marijuanacigarette from ordinary ones by the type of rolling done on the cigarette sticks. And since T/Sgt. Belarga allegedly did notsee the sale, the appellant contends that the uncorroborated testimony of Sgt. Ani can not stand as basis for hisconviction.

People v. Ale does not apply here because the policeman in that case testified that he and his companion were certainthat the appellant therein handed marijuana cigarettes to the poseur-buyer based on the appearance of the cigarettesticks. The Court rejected this claim, stating that:

This Court cannot give full credit to the testimonies of the prosecution witnesses marked as they are withcontradictions and tainted with inaccuracies.

Biñan testified that they were able to tell that the four cigarettes were marijuana cigarettes becauseaccording to him, the rolling of ordinary cigarettes are different from those of marijuana cigarettes. (tsn,November 13, 1984, p. 10).

It is however, incredible to believe that they could discern the type of rolling done on those cigarettes from

the distance where they were observing the alleged sale of more or less 10 to 15 meters.

21

In the case at bar, however, T/Sgt. Belarga did not positively claim that he saw the appellant hand over marijuana to Sgt. Ani. What he said was that there was an exchange of certain articles between the two. The relevant portion of T/SgtBelarga's testimony reads: 22

Q Now, do you remember whether Sgt. Ani was able to reach the house of Mari Musa?

A Yes, ma'am.

Q After reaching Mari Musa, did you see what happened (sic)?



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A Yes, ma'am.

Q Could you please tell us?

A From our vehicle the stainless owner type jeep where Sgt. Lego, Sgt. Biong wereboarded, I saw that Sgt. Ani proceeded to the house near the road and he was met byone person and later known as Mari Musa who was at the time wearing short pants and

later on I saw that Sgt. Ani handed something to him, thereafter received by Mari Musaand went inside the house and came back later and handed something to Sgt. Ani.

Contrary to the contention of the appellant, it was not impossible for T/Sgt. Belarga to have seen, from a distance of 90-100 meters, Sgt. Ani hand to the appellant "something" and for the latter to give to the former "something."

Notwithstanding the fact that T/Sgt. Belarga could not have been certain that what Sgt. Ani received from the appellantwas marijuana because of the distance, his testimony, nevertheless, corroborated the direct evidence, which the Courearlier ruled to be convincing, presented by Sgt. Ani on the following material points: (1) T/Sgt. Belarga instructed Sgt. Anito conduct a surveillance and test-buy operation on the appellant at Suterville, Zamboanga City on December 131989; 23 (2) later that same day, Sgt. Ani went back to their office and reported a successful operation and turned over toT/Sgt. Belarga one wrapper of marijuana; 24 (3) T/Sgt. Belarga then organized a team to conduct a buy-bust operation thefollowing day; 25 (4) on December 14, 1989, T/Sgt. Belarga led a team of NARCOM agents who went to Suterville,

Zamboanga City; 26 (5) T/Sgt. Belarga gave a P20.00 marked bill to Sgt. Ani which was to be used in the buy-busoperation; 27 (6) upon the arrival of the NARCOM agents in Suterville, Zamboanga City, Sgt. Ani proceeded to the houseof the appellant while some agents stayed in the vehicles and others positioned themselves in strategic places; 28 theappellant met Sgt. Ani and an exchange of articles took place. 29

The corroborative testimony of T/Sgt. Belarga strengthens the direct evidence given by Sgt. Ani. Additionally, the Courthas ruled that the fact that the police officers who accompanied the poseur-buyer were unable to see exactly what theappellant gave the poseur-buyer because of their distance or position will not be fatal to the prosecution's case 30 providedthere exists other evidence, direct or circumstantial, e.g., the testimony of the poseur-buyer, which is sufficient to provethe consummation of the sale of the prohibited drug

The appellant next assails the seizure and admission as evidence of a plastic bag containing marijuana which theNARCOM agents found in the appellant's kitchen. It appears that after Sgt. Ani gave the pre-arranged signal to the otherNARCOM agents, the latter moved in and arrested the appellant inside the house. They searched him to retrieve themarked money but didn't find it. Upon being questioned, the appellant said that he gave the marked money to hiswife. 31 Thereafter, T/Sgt. Belarga and Sgt. Lego went to the kitchen and noticed what T/Sgt. Belarga described as a"cellophane colored white and stripe hanging at the corner of the kitchen." 32 They asked the appellant about its contentsbut failing to get a response, they opened it and found dried marijuana leaves. At the trial, the appellant questioned theadmissibility of the plastic bag and the marijuana it contains but the trial court issued an Order ruling that these areadmissible in evidence. 33

Built into the Constitution are guarantees on the freedom of every individual against unreasonable searches and seizuresby providing in Article III, Section 2, the following:

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 warrantor warrant of arrest shall issue except upon probable cause to be determined personally by the judgeafter examination under oath or affirmation of the complainant and the witness he may produce, andparticularly describing the place to be searched and the persons or things to be seized.

Furthermore, the Constitution, in conformity with the doctrine laid down in Stonehill v. Diokno, 34 declares inadmissibleany evidence obtained in violation of the freedom from unreasonable searches and seizures. 35

While a valid search warrant is generally necessary before a search and seizure may be effected, exceptions to this ruleare recognized. Thus, in Alvero v. Dizon, 36 the Court stated that. "[t]he most important exception to the necessity for asearch warrant is the right of search and seizure as an incident to a lawful arrest." 37



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Rule 126, Section 12 of the Rules of Court expressly authorizes a warrantless search and seizure incident to a lawfularrest, thus:

Sec. 12. Search incident to lawful arrest . — A person lawfully arrested may be searched for dangerousweapons or anything which may be used as proof of the commission of an offense, without a searchwarrant.

There is no doubt that the warrantless search incidental to a lawful arrest authorizes the arresting officer to make a searchupon the person of the person arrested. As early as 1909, the Court has ruled that "[a]n officer making an arrest may takefrom the person arrested any money or property found upon his person which was used in the commission of the crime orwas the fruit of the crime or which might furnish the prisoner with the means of committingviolence or of escaping, or which may be used as evidence in the trial of the cause . . . " 38 Hence, in a buy-bust operationconducted to entrap a drug-pusher, the law enforcement agents may seize the marked money found on the personof the pusher immediately after the arrest even without arrest and search warrants. 39

In the case at bar, the NARCOM agents searched the person of the appellant after arresting him in his house but foundnothing. They then searched the entire house and, in the kitchen, found and seized a plastic bag hanging in a corner.

The warrantless search and seizure, as an incident to a suspect's lawful arrest, may extend beyond the person of the onearrested to include the premises or surroundings under his immediate control. 40 Objects in the "plain view" of an officer

who has the right to be in the position to have that view are subject to seizure and may be presented as evidence. 41

In Ker v. California 42 police officers, without securing a search warrant but having information that the defendant husbandwas selling marijuana from his apartment, obtained from the building manager a passkey to defendants' apartment, andentered it. There they found the defendant husband in the living room. The defendant wife emerged from the kitchen, andone of the officers, after identifying himself, observed through the open doorway of the kitchen, a small scale atop thekitchen sink, upon which lay a brick-shaped package containing green leafy substance which he recognized as marijuanaThe package of marijuana was used as evidence in prosecuting defendants for violation of the Narcotic Law. Theadmissibility of the package was challenged before the U.S. Supreme Court, which held, after observing that it was notunreasonable for the officer to walk to the doorway of the adjacent kitchen on seeing the defendant wife emergetherefrom, that "the discovery of the brick of marijuana did not constitute a search, since the officer merely saw what wasplaced before him in full view. 43 The U.S. Supreme Court ruled that the warrantless seizure of the marijuana was legal onthe basis of the "plain view" doctrine and upheld the admissibility of the seized drugs as part of the prosecution's

evidence. 44

The "plain view" doctrine may not, however, be used to launch unbridled searches and indiscriminate seizures nor toextend a general exploratory search made solely to find evidence of defendant's guilt. The "plain view" doctrine is usuallyapplied where a police officer is not searching for evidence against the accused, but nonetheless inadvertently comesacross an incriminating object. 45 Furthermore, the U.S. Supreme Court stated the following limitations on the applicationof the doctrine:

What the "plain view" cases have in common is that the police officer in each of them had a prior justification for anintrusion in the course of which he came inadvertently across a piece of evidence incriminating the accused. The doctrineserves to supplement the prior justification — whether it be a warrant for another object, hot pursuit, search incident tolawful arrest, or some other legitimate reason for being present unconnected with a search directed against the accused— and permits the warrantless seizure. Of course, the extension of the original justification is legitimate only where it isimmediately apparent to the police that they have evidence before them; the "plain view" doctrine may not be used toextend a general exploratory search from one object to another until something incriminating at last emerges. 46

It has also been suggested that even if an object is observed in "plain view," the "plain view" doctrine will not justify theseizure of the object where the incriminating nature of the object is not apparent from the "plain view" of theobject. 47 Stated differently, it must be immediately apparent to the police that the items that they observe may beevidence of a crime, contraband, or otherwise subject to seizure.

In the instant case, the appellant was arrested and his person searched in the living room. Failing to retrieve the markedmoney which they hoped to find, the NARCOM agents searched the whole house and found the plastic bag in the kitchenThe plastic bag was, therefore, not within their "plain view" when they arrested the appellant as to justify its seizure. TheNARCOM agents had to move from one portion of the house to another before they sighted the plastic bag. Unlike Ker vs



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California, where the police officer had reason to walk to the doorway of the adjacent kitchen and from which position hesaw the marijuana, the NARCOM agents in this case went from room to room with the obvious intention of fishing formore evidence.

Moreover, when the NARCOM agents saw the plastic bag hanging in one corner of the kitchen, they had no clue as to itscontents. They had to ask the appellant what the bag contained. When the appellant refused to respond, they opened itand 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 notforcibly opened it. Even assuming then, that the NARCOM agents inadvertently came across the plastic bag because itwas within their "plain view," what may be said to be the object in their "plain view" was just the plastic bag and not themarijuana. 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 distinctiveconfiguration, its transprarency, or otherwise, that its contents are obvious to an observer. 48

We, therefore, hold that under the circumstances of the case, the "plain view" doctrine does not apply and the marijuanacontained in the plastic bag was seized illegally and cannot be presented in evidence pursuant to Article III, Section 3(2)of the Constitution.

The exclusion of this particular evidence does not, however, diminish, in any way, the damaging effect of the other piecesof evidence presented by the prosecution to prove that the appellant sold marijuana, in violation of Article II, Section 4 of

the Dangerous Drugs Act of 1972. We hold that by virtue of the testimonies of Sgt. Ani and T/Sgt. Belarga and the twowrappings of marijuana sold by the appellant to Sgt. Ani, among other pieces of evidence, the guilt of the appellant of thecrime charged has been proved beyond reasonable doubt.

WHEREFORE, the appeal is DISMISSED and the judgment of the Regional Trial Court AFFIRMED.

SO ORDERED.



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G.R No. 134056 July 6, 2000

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,vs.ROBERT FIGUEROA and BEATRICE VALERIO, accused.ROBERT FIGUEROA, accused-appellant.

D E C I S I O N

DAVIDE, JR., C.J.:

Accused-appellant ROBERT FIGUEROA (hereafter OBET) appeals from the 18 May 1998 Decision1 of the Regional TriaCourt of Parañaque City, Branch 259, in Criminal Case No. 97-306, convicting him of violation of Section 14-A2 , Article IIof R.A. No. 6425, otherwise known as the Dangerous Drugs Act of 1972, as amended by RA. No. 7659. His co-accusedBeatrice Valerio (hereafter Betty) was acquitted.

OBET and Betty were indicted under an information, dated 2 April 1997, whose accusatory portion reads as follows:

That on 16 February 1997 and for sometime prior thereto in Parañaque City and within the jurisdiction of this Honorable

Court, the above-named accused without authority of law, conspiring, confederating and helping one another, did thenand there, wilfully, unlawfully and feloniously manufacture, produce, prepare or process methamphetamine hydrochlorideor shabu, a regulated drug amounting to a 2.4 liters, directly by means of chemical synthesis.

CONTRARY TO LAW.3

When arraigned OBET and Betty each entered a plea of not guilty.4 Trial on the merits then ensued.

The witnesses presented by the prosecution were NBI Forensic Chemist Mary Ann T. Aranas, NBI Special Investigator IIPio M. Palencia (hereafter PALENCIA), and NBI Intelligence Agent II Martin Soriano (hereafter SORIANO).

PALENCIA testified that on 15 February 1997, he was in the office of SORIANO at Project 6, Quezon City, when theyreceived a call from their informant, a woman, who reported that a certain OBET was allegedly engaged in large-scaledrug trafficking in Makati City. PALENCIA and SORIANO forthwith instructed their informant to establish contact withOBET for a buy-bust operation. After several hours, the informant reported that OBET was already waiting for her at No.1485 Soliman Street, Makati City, with instructions for her to come alone as soon as she was ready with P150,000.PALENCIA then caused the dusting of fluorescent powder over ten pieces of authentic P100 bills as buy-bust money andgave them to the informant.5

On board a taxi, PALENCIA, SORIANO and their informant proceeded to the rendezvous area. They arrived at half pastwelve o'clock in the early morning of 16 February 1997. As the gate was already open, the informant entered thepremises, while PALENCIA and SORIANO discreetly crawled and positioned themselves near the gate of the houseStrategically positioned, PALENCIA overheard OBET ask the informant whether she had the money. PALENCIA then sawthe informant hand over the money to OBET. While counting the money, OBET sensed the presence of other people inthe area. OBET, who was in possession of a .45 caliber pistol, fired it twice toward the direction of PALENCIA, whilehurrying towards the house. OBET then held hostage his mistress, Estrella Brilliantes, and her two children for the nex

three hours until the arrival of one Major Roberto Reyes to whom OBET surrendered. PALENCIA and SORIANO broughtOBET, his firearm and the recovered buy-bust money to the WPD Headquarters for recording purposes and, thereafter, tothe NBI Headquarters.6

At the NBI Headquarters, PALENCIA and SORIANO methodically interrogated OBET about the source of his shabuOBET eventually volunteered that his source was a certain Betty of 263 El Grande Street, B.F. Homes, Parañaque City.PALENCIA and SORIANO took OBET to Betty's house as a follow-up operation. They arrived at around 6:00 a.m. of thesame day, 16 February 1997. As OBET called Betty earlier to tell her that he was arriving, Betty already had the gateopened for them. After parking, PALENCIA saw Betty waiting for them. Upon seeing OBET in handcuffs, Betty asked whahappened. OBET replied that he was just caught in a buy-bust operation. PALENCIA and SORIANO then tried toconvince Betty to surrender the shabu that OBET insisted was hidden inside the house. As Betty persistently denied theexistence of the shabu, PALENCIA told OBET to confer with Betty. After a while, OBET proceeded to the kitchen of the

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guesthouse located outside the main house, followed by Betty. OBET then promptly pointed to what he termed as liquidshabu inside a white pail along with other drug paraphernalia, such as a beaker spray. PALENCIA and SORIANO seizedthe items.7

Thereafter, PALENCIA requested a laboratory examination of all the seized items and an ultraviolet light examination overthe persons of OBET, Betty and a certain Eva Baluyot.8 PALENCIA claimed that based on the certification issued by theForensic Chemistry Division of the NBI, all the items seized from Betty's residence were positive for methamphetamine

hydrochloride except specimen no.7; while from among the persons subjected to ultraviolet light examination, only OBETwas found positive for fluorescent powder .9

On cross-examination, PALENCIA admitted that he and SORIANO conducted the search without a search warrant, butwith the consent of Betty.10 He also admitted that he did not actually see OBET or Betty in the act of manufacturingshabu.11

NBI Intelligence Agent II SORIANO corroborated PALENCIA's testimony. He likewise admitted that the custodiainvestigation of OBET, during which he divulged Betty as the source of shabu, was conducted in the absence of anycounsel. SORIANO also confirmed PALENCIA's testimony that they were not armed with a search warrant, but that theyconducted the follow-up operation at Betty's house under the hot pursuit theory.12 He further maintained that OBET, afterconferring with Betty, uttered, "Ako na nga, ako na nga" (I will do it, I will do it). OBET then proceeded to the dirty kitchen,pointed to the refrigerator and had it moved. Thereafter, SORIANO saw a plastic pail containing liquid with floating brown

substances.

SORIANO admitted that he and PALENCIA neither witnessed OBET and Betty manufacture shabu in the mannerdescribed in Section 2(j) of the Dangerous Drugs Act13 ; nor did they possess evidence, independent of the items they hadseized, that OBET and Betty were engaged in the labeling or manufacturing of shabu.14

Forensic Chemist Mary Ann T. Aranas testified that on 16 February 1997, she conducted a laboratory examination for thepresence of any prohibited or regulated drug on eleven different specimens (Exhibits "B"-"L").15 The result of theexamination disclosed that all the specimens except specimen no. 7 (Exhibit "H") were positive for methamphetaminehydrochloride.16 She further observed that specimen no. 8 (Exhibit I- I-2), the brown liquid with floating solid flakescontained in a plastic pail, was positive for epedrine,17 a substance used in the manufacture of methamphetaminehydrochloride. She opined that this crude form of shabu would have to undergo chemical processes, like extraction,crystallization, distillation, before it could be finally converted into shabu's crystalline form. She also conducted a

fluorescent powder examination over the persons of OBET and Betty. Only OBET gave a positive result .18

On the other hand, OBET testified that while he was watching television on the night of 15 February 1997, he heard thedoorbell rang. Upon seeing Eva Baluyot, his childhood friend, he opened the door for her. Inside the house, Eva handedhim a bundle of money and stated that she was buying shabu from him. OBET emphatically told Eva that he was notengaged in such illegal trade and returned the money. OBET then accompanied Eva out of the house. At the garage,OBET noticed someone peeping from the dark; so he told Eva to go back inside the house with him. Eva ignored therequest. OBET thus left Eva at the garage and got his .45 caliber gun from his house. While he was locking the door, hishandgun accidentally fired off, as he forgot that it had already been cocked. This blast was followed by shouts of peopleoutside claiming that they were NBI men. Uncertain, OBET did not go out of the house but instead told the alleged NBImen to call the Makati Police, specifically Major Reyes. The NBI agents, however, persisted in convincing OBET to go ouof the house. He did get out of his house after three hours when he heard the voice of Major Reyes. OBET gave to MajorReyes his gun. The Makati Police and the NBI men thereafter conducted a joint search inside OBET's house which

however, yielded nothing. OBET was then brought to the Makati Police Headquarters where the incident was recordedThereafter, PALENCIA, SORIANO and another NBI man brought OBET to the house of Betty, his former live-in partner, aEl Grande Street, B.F. Homes, Parañaque City, upon the insistence and information of Eva Baluyot .19

Upon entering B.F. Homes, SORIANO instructed OBET to call and tell Betty that he was already near. The gate wasalready opened when they arrived, and the NBI men freely parked their car at the garage. Then, PALENCIA andSORIANO alighted from the car and entered Betty's house. OBET was left in the car under the charge of the third NBIman; hence, he knew nothing of what happened inside Betty's house.20

For her part, Betty admitted that she was romantically involved with OBET and had a child by him. She recalled that on 16February 1997, OBET called at around 6:00 a.m. and requested her to open the gate for him, as he was already near.She ran down to the garage and opened the gate. Since her car was parked halfway through the garage, she went to the



























































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main house to get her car keys to make way for OBET's car. But as she came out of the main house, OBET's car wasalready parked inside the garage. She noticed that OBET had two companions with long firearms. The two, whom Bettylater found out as NBI men PALENCIA and SORIANO, informed her that they had just come from a buy-bust operationand that OBET had led them to her house, as there were illegal chemicals kept in the premises. Shocked andamazed,she then asked for a search warrant, but the NBI men could not produce any.21

Betty further recalled that the NBI men claimed that they found contraband items near the dirty kitchen at a small

space behind the refrigerator where cases of softdrinks were stored. Betty denied any knowledge that there were illegalchemicals inside her house and that these were manufactured into shabu. She also denied knowing Eva Baluyot .22

On cross-examination, Betty disclaimed her alleged consent to the search of her house, for she specifically asked the NBImen for a search warrant. She asserted that she did not see the NBI men find the shabu paraphernalia because she wentup to the second floor of her house. She only saw that the NBI men were bringing several items out of her house .23

The trial court agreed with the prosecution's theory that the warrantless arrests of OBET and Betty were conducted withinthe purview of valid warrantless arrests enumerated in Section 5,24 Rule 113 of the Rules of Court. It then ruled as validthe consented warrantless search conducted at the house of Betty. Consequently, it found that the very items seized bythe NBI agents at the kitchen of Betty's guesthouse were admissible as thecorpus delicti of the violation of Section 14-A othe Dangerous Drugs Act. Thus, the trial court "believed" that the paraphernalia seized were indispensable to theprocessing or manufacturing of shabu into crystallized form. Although it conceded that the prosecution witnesses did not

actually see the crystallization processes, the trial court observed that the Dangerous Drug Act does not require that therebe actual manufacturing activities at the time of the seizure.

The trial court, however, acquitted Betty for failure of the prosecution to adduce evidence that she, in conspiracy withOBET, manufactured shabu without the requisite authority. It did not arrive at a similar conclusion as far as OBET wasconcerned, but declared that based on the evidence on record, OBET's guilt of the crime charged was proved beyondreasonable doubt. Thus, in the decision of 18 May 1998 the trial court decreed as follows:

WHEREFORE, finding the evidence insufficient to warrant the conviction of accused Beatrice Valerio y del Rosario forViolation of Sec. 14-a of Article III of R.A. 6425 as amended by R.A. 7659, this court pronounces her NOT GUILTY andconsidering that she is detained at the NBI the NBI is directed to immediately release her from custody unless there besome reasons for her detention. Finding, however, accused Robert Figueroa GUILTY as charged [of] the same offense inthe absence of any mitigating or aggravating circumstances, this Court hereby sentences him to suffer the penalty o

Reclusion Perpetua and to pay a fine of P500,000.00 and to suffer the accessory penalties provided by law, specifically Art. VI [sic] of the Revised Penal Code.

The Clerk of Court is directed to prepare the Mittimus for the immediate transfer of Robert Figueroa to the Bureau oCorrections in Muntinlupa City.

SO ORDERED.

Unsatisfied with the verdict, OBET appealed the decision to us. He principally premises his prayer for acquittal on thefailure of the State to show by convincing evidence that shortly prior to or during custodial investigation, he was apprisedof his constitutional rights to remain silent, to have a competent and independent counsel preferably of his own choice,and to be informed of such rights. He asserts that he did not waive those rights. Thus, whatever admissions were

allegedly extracted from him are inadmissible in evidence. Even assuming that his extrajudicial statements wereadmissible, Betty's acquittal would work in his favor because the indictment is based on conspiracy. In a conspiracy, theact of one is the act of all. Therefore, the acts imputed to him were also the acts of Betty, and vice versa. Since the triacourt considered insufficient for conviction the acts of Betty, then he, too, should be acquitted.

In the Appellee's Brief, the Office of the Solicitor General (OSG) maintains that not all warrantless searches and seizuresare illegal. For one, a warrantless search and seizure is not unreasonable and offensive to the Constitution if consent isshown. In this case, the prosecution convincingly proved that Betty consented to the search of her house. With herconsent, Betty validly waived her constitutional right against unreasonable searches and seizure. Consequently, the itemsseized in her house by virtue of the consented search are admissible in evidence against her and OBET.

The OSG also contends that the acquittal of Betty does not per se work to absolve OBET of the crime charged. Betty'sbelievable disavowal of the location of the paraphernalia and other circumstances on record reasonably indicative of her



















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innocence cannot redound in favor of OBET. The latter apparently knew the exact location of the hidden paraphernalia.By such disclosure, it is not far-fetched to conclude that OBET had been actually engaged in the manufacture of shabu.

We first resolve the question of whether Betty's acquittal would benefit OBET.

We disagree with the theory of OBET that in an indictment based on conspiracy, the acquittal of a conspirator likewiseabsolves a co-conspirator from criminal liability. Indeed, the rule is well-settled that once a conspiracy is established, the

act of one is the act of all, and each of the conspirators is liable for the crimes committed by the other conspirators .25 Ifollows then that if the prosecution fails to prove conspiracy, the alleged conspirators should be held individuallyresponsible for their own respective acts. Accordingly, OBET's criminal liability in this case must be judged on the basis ofhis own acts as established by the quantum of proof required in criminal cases.

We should then determine whether the prosecution was able to establish beyond reasonable doubt OBET's guilt forunauthorized manufacture of shabu, a regulated drug.

After a meticulous review of the records and of the evidence adduced by the parties in this case, we find that whatPALENCIA and SORIANO did left much to be desired, thereby resulting in a bungled prosecution of the case. Theevidence for the prosecution miserably failed to prove OBET's guilt of the offense charged.

The buy-bust operation was a failure because no shabu or other regulated or prohibited drug was found in OBET's personand residence. No evidence was adduced to show that OBET handed shabu over to the informant. Yet, he was placed incustody. For what offense he was held in custody does not, initially, appear very clear on the record.

It was established that OBET fired two shots toward the direction of PALENCIA and SORIANO and held hostage hismistress and her two children. Yet he was not placed under custodial investigation for such crimes as grave threats,coercion, illegal possession of firearms, or crimes other than that with which he was charged.

On the contrary, OBET was held in custody and investigated or interrogated about the source of the shabu, none of whichwas found during the buy-bust operation. In short he was held in custody as a consequence of the failed buy-bustoperation and as a follow-up to link him to the source and establish a conspiracy in the illegal trade of shabu. Allegedly, headmitted that the source was Betty. On the basis of that admission, PALENCIA and SORIANO, together with OBETproceeded to the residence of Betty. Needless to state, OBET cannot be investigated for anything in relation to shabu

while under custody without informing him of his rights to remain silent and to have a competent and independent counselpreferably of his own choice. Any waiver of such rights should be in writing and made in the presence of a counsepursuant to Section 12 (1)26 , Article III of theConstitution. It has been held that these rights attach from the moment theinvestigation starts, i.e. when the investigating officers begin to ask questions to elicit information and confessions oradmissions from the suspect.27

It is always incumbent upon the prosecution to prove at the trial that prior to in-custody questioning, the confessant wasinformed of his constitutional rights. The presumption of regularity of official acts does not prevail over the constitutionapresumption of innocence.28 Hence, in the absence of proof that the arresting officers complied with these constitutionasafeguards, extrajudicial statements, whether inculpatory or exculpatory, made during custodial investigation areinadmissible and cannot be considered in the adjudication of a case.29 In other words, confessions and admissions inviolation of Section 12 (1), Article III of the Constitution are inadmissible in evidence against the declarant and more soagainst third persons.30 This is so even if such statements are gospel truth and voluntarily given .31 Such statements are

useless except as evidence against the very police authorities who violated the suspect's rights.32

SORIANO admitted that the custodial investigation of OBET was conducted without the presence of a lawyer, and there isno proof that OBET waived said right and the right to remain silent. No waiver in writing and in the presence of a counsewas presented. Thus, pursuant to paragraph 3 of Section 12 of Article III of the Constitution any admission obtained fromOBET in the course of his custodial investigation was inadmissible against him and cannot be used as a justification forthe search without a warrant.

The search conducted on Betty's house was allegedly consented to by Betty. Indeed, a consented search is one of theexceptions to the requirement of a search warrant. In People v. Chua Ho San @ Tsay Ho San,33 we pointed out that:






































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This interdiction against warrantless searches and seizures, however, is not absolute and such warrantless searches andseizures have long been deemed permissible by jurisprudence in instances of (1) search of moving vehicles, (2) seizure inplain view, (3) customs searches, (4) waiver or consented searches, (5) stop and frisk situations (Terry search), and (6)search incidental to a lawful arrest. The last includes a valid warrantless search and seizure pursuant to an equally validwarrantless arrest, for, while as a rule, an arrest is considered legitimate if effected with a valid warrant of arrest, theRules of Court recognize permissible warrantless arrest, to wit: (1) arrest flagrante delicto, (2) arrest effected in hopursuit, and (3) arrest of escaped prisoners.

In case of consented searches or waiver of the constitutional guarantee, against obtrusive searches, it is fundamental thatto constitute, a waiver, it must first appear that (1) the right exists; (2) that the person involved had knowledge, eitheractual or constructive, of the existence of such right; and (3) the said person had an actual intention to relinquish theright.34 The third condition does not exist in the instant case. The fact is, Betty asked for a search warrant, thus:

Q And of course, these NBI Special Investigators informed you of their purpose is that correct?

A Yes sir.

Q And of course believing that there was nothing in your house you acceded?

A No sir, I was asking for a search warrant.

Q And what was their reply?

A They did not have any but that Figueroa had led them to the property.35

Neither can the search be appreciated as a search incidental to a valid warrantless arrest of either Betty or OBET asintimated by the trial court. First, Betty's arrest did not precede the search. Second, per the prosecution's evidence OBETwas not arrested for possession or sale of regulated or prohibited drugs as a consequence of the buy-bust operation. Hesurrendered after taking hostage Estrella and her two children, although he was thereafter held in custody for furtherquestioning on illegal drugs.

There is no showing that the house occupied by Betty and the articles confiscated therefrom belong to OBET. That OBET

pointed to PALENCIA and SORIANO the places where the articles were found provides no sufficient basis for aconclusion that they belonged to him. Even if the articles thus seized actually belonged to him, they cannot beconstitutionally and legally used against him to establish his criminal liability therefor, since the seizure was the fruit of aninvalid custodial investigation.

WHEREFORE, in view of all the foregoing, the 18 May 1998 Decision of the Regional Trial Court, Branch 259, ParañaqueCity, convicting herein accused-appellant Robert Figueroa of violation of Section 14-A, Article III of the Dangerous Drugs Act, as amended, is hereby REVERSED and SET ASIDE. He is hereby ACQUITTED of the crime charged, andORDERED immediately released from confinement or detention unless his continued detention is warranted by virtue of avalid legal cause. The Director of the Bureau of Corrections is directed to submit within five (5) days from receipt of a copyof this decision a report on the release of accused-appellant.

Costs de oficio.

SO ORDERED.











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G.R. No. 98060 January 27, 1997

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,vs.SATURNINA SALAZAR y PALANAS, accused-appellant.

PANGANIBAN, J .:

As her defense in this appeal, appellant alleges violation of her constitutional rights against warrantless search andseizure, and to counsel during custodial investigations. However, the search, being merely an incident of a legitimate buy-bust operation against illegal drugs, needed no warrant. And while her right to counsel during the custodial investigationwas indeed violated, there were other evidence sufficient to warrant her conviction beyond reasonable doubt.

This appeal seeks the reversal of the Decision 1 in Criminal Case No. 925 of the Regional Trial Court of Oroquieta City,Branch 13, finding appellant Saturnina Salazar y Palanas guilty beyond reasonable doubt of violation of Section 4, ArticleII of Republic Act No. 6425 Dangerous Drugs Act of 1972), as amended by Presidential Decree No. 1675, and imposingupon her the penalty of life imprisonment and payment of P20,000.00 as fine, with costs.

The Facts

According to the Prosecution

Appellant was tried under an Information 2 the accusatory portion of which reads: 3

That on or about the 23rd day of August 1988, at 1:35 o'clock in the afternoon, more or less, in BarangayPoblacion II, Oroquieta City, Philippines, and within the jurisdiction of this Honorable Court, the saidaccused did then and there and without authority of law, wilfully, unlawfully and feloniously sell, deliverand give away five (5) marijuana sticks to a NARCOM Agent posing as a buyer in consideration of theamount of Five Peso (P5.00) marked bill with Serial No. FJ526501; and, as a result of the said Buy-Bustoperation, confiscated from the control and possession of the accused were six (6) marijuana sticks and

five (5) grams, more or less, of dried marijuana leaves in addition to the five (5) marijuana sticksaforestated.

Contrary to law.

On arraignment, appellant, assisted by counsel pleaded not guilty to the crime charged 4 The prosecution presented SgtJim Cubillan, Cpl. Emilio de Guzman, and Forensic Chemist Bernabe Arenga and various evidence proving the followingfacts:

After being informed of the activities of drug pushers in Oroquieta City, Sgt. Cubillan and Cpl. de Guzman of the NarcoticsCommand (NARCOM) of the Philippine Constabulary (PC), left Ozamis City on August 23, 1988, for the former city. Upontheir arrival at noon, they were met by the police informer who accompanied them to the place where a pusher operated.Near the City Hall, the informer pointed to them the residence-cum-store of appellant and thereafter left the twoconstabulary operatives.

Right then and there, Sgt Cubillan took a five-peso bill with Serial No. FJ526501 from his billfold, marked it with his initialsand handed it to Cpl. de Guzman. The latter then went to the store and told the woman seated on the windowsill that hewanted "to score" 5 ("mag-score nga ako"). 6 The woman nodded. After indicating that he wanted five (5) sticks ofmarijuana, Cpl. de Guzman asked her if what she was about to give him was "genuine" and gave her the five-peso bill. After the woman gave him five sticks of marijuana, Cpl. de Guzman unwrapped one stick. He smelled its contents and atthe same time noticed the seeds therein. He then placed the contraband in his pocket, showed his identification card tothe woman and told her that he was a NARCOM agent. 7

At that moment, Sgt. Cubillan approached the two. He had positioned himself at the back of the store, around four or fivemeters away from Cpl. de Guzman and the woman. 8 He and Cpl. de Guzman arrested the woman, whom they later



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learned to be Saturnina "Nena" :Salazar. They recovered from appellant the P5.00-bill. Upon being informed by Cpl. deGuzman that appellant had taken the five marijuana sticks from a plastic container on the table inside the store, Sgt.Cubillan took the container which had six (6) more marijuana sticks and around five (5) grams of dried marijuana leaves. 9

The NARCOM agents took appellant to the local PC headquarters. On board a motorcar, Sgt. Cubillan asked her if sheknew of other pushers in the vicinity. She pointed to the place of Josephine Bayotas. When they passed by Bayotasresidence, the two PC operatives also arrested her. 10

At the PC headquarters in Camp Naranjo, Sgt. Cubillan interrogated appellant while Cpl. de Guzman took her biodata. 11 Her fingerprints were also taken. 12 Thereafter, Cpl. de Guzman made her sign her bio-data and the papercontaining her fingerprints. It was Sgt. Cubillan who instructed her to sign the piece of bond paper which was used to wrapthe marijuana sticks before they were submitted to the laboratory for examination. 13

For their part, Sgt. Cubillan and Cpl. de Guzman executed a joint affidavit to support the complaint that was to be filedagainst appellant. 14 The confiscated and dried leaves were turned over to Sgt. Dominador Bejuega who sent thespecimen to the National Bureau of Investigation (NBI) in Cagayan de Oro City. NBI Forensic Chemist Bernabe Arenga,who conducted the examination, executed a Certification, dated August 29, 1988, (Exh. D) 15 Stating that the laboratoryexaminations conducted on the eleven (11) confiscated cigarette sticks and the "crushed dried stalks and flowering topssuspected to be marijuana" yielded "positive results for marijuana." 16 He also submitted Dangerous Drugs Report NoDDM-88-107 (Exh. E) finding: 17

Cross weight of specimens 15.3280 grams

Microscopic, chemical and chromatographic examinations conducted on the above-mentioned specimensgave POSITIVE RESULTS for MARIHUANA.

According to the Defense

The defense presented Jeanife Mission, appellant's 12-year-old daughter, to testify on the manner by which the arrestwas conducted by the NARCOM agents. According to Jeanife, at around 1:35 p.m. on August 23, 1988, she was at homewith her mother. Jeanife was watching their sari-sari store in front of their house as her mother took a nap. Two personsarrived and went inside their house. One of them ransacked their things. When her mother woke up, she was held by one

of the two persons and taken to the sala. Jeanife failed to hear their conversation, but she saw the two persons take hermother away. It was at the jail when she next saw her mother. 18

In her own defense, Nena Salazar testified that at around 1:30 p.m. of August 23, 1988, she was sleeping in the onlybedroom of their house which was separated from the sala by a bamboo divider. When she heard someone "doingsomething" in the sala, she stood up to see what the matter was, but she was met by a big fellow who, by the identification.card he showed her, was named Jimmy Cubillan. She also identified the other person as de Guzman by his ID card.

Cubillan held her left hand. She tried to untangle herself from Cubillan's hold and asked him, "why do you hold my handsir " Cubillan said, "This is (a) raid, we are looking for something ." He did not, however, show any search warrant, but heasked her where she had placed the marijuana that she was allegedly selling. She denied selling the contraband as shewas still on probation after she had been convicted of selling marijuana in 1986. 19

Because Cubillan could not find marijuana in her house, he pulled out his pistol and told her threateningly that should sherefuse to tell him where the marijuana was, he would "salvage" her. The two persons brought her to the PC headquarterswhere she was investigated by Cubillan. She was not informed of her right to counsel nor her right to remain silent.However, she kept silent, not answering any of Cubillan's questions. Later, they held her right hand and forced her to signsomething. They also asked her to affix her thumbmark to a piece of paper, telling her that she could refuse to do so onlyif she would divulge to them the names of drug pushers in the area. She just signed and affixed her thumbmark to a pieceof paper the contents of which she was not even allowed to read. By then, it was almost midnight. The following day, shewas brought to the city jail. Bayotas was also arrested, but she was already in the PC headquarters when she (appellantwas brought there. 20

As stated earlier, Saturnina "Nena" Salazar was convicted of the crime charged. Thus, the case was disposed in thiswise: 21



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WHEREFORE, finding the accused Saturnina Salazar guilty beyond reasonable doubt of selling aprohibited drug without being authorized by law, she is hereby sentenced to life imprisonment and to paya fine of P20,000.00.

Costs against accused.

SO ORDERED.

Through her counsel, she interposed the instant appeal. 22

After the parties had filed their respective briefs, appellant, through the Public Attorney's Office, filed an urgenmanifestation and motion stating that since she was found in possession of five (5) grams of dried marijuana leaves andeleven (11) sticks of marijuana which, at .02 gram per stick, would all sum up to less than 6 grams only and thereforewould involve a penalty of only six (6) years, her appeal should be referred to the Court of Appeals for review. As legalbasis therefor, she cited the Decision in People vs. Simon 23 and the August 15, 1994 Resolution in G.R. No113360, People vs. Margarita Joseco y Magbanua, where the total weight of the subject illegal drugs was 400grams. 24 However, in the Resolution of March 27, 1995, the Court merely noted the said urgent manifestation andmotion. 25 Hence, notwithstanding the insignificant amount of marijuana involved, the Court itself shall consider thiscase.26 After all, the penalty actually imposed by the trial court was life imprisonment.

Ruling of the Trial Court

The trial court gave full faith and credence to the testimonies of the prosecution witnesses. On the other hand, it foundthat the defense was unable to sufficiently rebut the presumption of regularity in the government witnesses' performanceof their duty, finding it hard to believe that the NARCOM agents brought her to their headquarters to force her intodivulging the identity of other drugs pushers in the area and that the case against her was only a "trumped-up charge" Appellant's defense consisting of denials did not overcome the positive testimony of the prosecution witnesses.

Assignment of Errors

Appellant alleges in this appeal that the trial court gravely erred in (a) convicting her of the crime charged despite theunreasonable and unlawful search and seizure conducted by the NARCOM agents; (b) disregarding her constitutiona

right to presumption of innocence, and (c) finding her guilty beyond reasonable doubt of the offense charged.

The Court's Ruling

Appellant's Guilt Sufficiently Proven

Section 4, Article II of R.A. 6425 provides:

Sec. 4. Sale, Administration, Delivery, Distribution and Transportation of Prohibited Drugs. — The penaltyof reclusion perpetua to death and a fine ranging from five hundred thousand pesos to ten million pesosshall be imposed upon any person who, unless authorized by law, shall sell, administer, deliver, giveaway to another, distribute, dispatch in transit or transport any prohibited drug, or shall act as a broker inany of such transactions.

xxx xxx xxx

Indispensable in every prosecution for illegal sale of marijuana, a prohibited drug, is the submission of proof that the saleof the illicit drug took place between the poseur-buyer and the seller thereof, coupled with the presentation of the corpusdelicti as evidence in court. 27 The element of sale must be unequivocally established in order to sustain a conviction.

This is precisely the import of the testimony of Cpl. de Guzman when he said: 28

Q And what was your purpose in coming to Oroquieta City?



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A We came here because we were informed by our informant that there were drung (sicpushers here.

xxx xxx xxx

Q And after you met your informant in Oroquieta City what happened next?

A He accompanied us to the store of the pusher.

xxx xxx xxx

Q And what happened when you reached the place where the pusher was?

A When he pointed to us the alleged drug pusher we talked with Sgt. Cubillan who got amarked money and I posed as a buyer.

Q Did you approach the store pointed to you by your informant?

A Yes.

Q And what happened at the store (sic ) of the alleged pusher?

A I went to the store and talked to the owner that I wanted to buy marijuana.

Q How exactly did you tell the owner of the store?

A I said I wanted to score.

COURT:

Q Do you know what is the meaning of score?

A That is the term used by the users so that they will not be identified.

Q And what did the suspected pusher say?

A She nodded.

xxx xxx xxx

FISCAL RAMOS:

Q What happened after she gave you the five sticks of marijuana?

A I bought five sticks of marijuana and I asked her if this is genuine and I gave themoney. I opened one stick, I smelled and saw that there were seeds inside. I placed it inmy pocket and then I showed my ID and I identified (sic ) myself as a NARCOM agent.

Q What made you conclude that the 5 cigarette sticks which the alleged pusher gave youwere marijuana cigarettes?

A I learned that from my training and schooling.

Q What happened after you identified yourself as a NARCOM agent?



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A Sgt. Cubillan came near and he arrested her.

Q What happened after that?

A I informed Sgt. Cubillan that the container from where the marijuana was (sic ) taken ison the table and in it were 6 sticks and 5 grams of dried leaves.

Q What did Sgt. Cubillan do when you pointed to the container?

A He took it and looked inside.

Q And what happened after that?

A We brought her to the PC.

Sgt. Cubillan corroborated Cpl. de Guzman's account testifying that:

Q And what did you do upon (sic ) being informed that there is a pusher in OroquietaCity?

A I asked him to accompany me to where is (sic ) pusher is.

Q Did your informant lead you to where the pusher was?

A Yes.

Q And what happened thereat?

A He led us and pointed to a woman inside a store and said that she is a pusher.

xxx xxx xxx

Q And after your informant pointed to you a particular woman inside a store as a pusherwhat step if any did you take?

A I and Cpl. de Guzman decided to conduct a buy bust operation .

Q Please explain who (sic ) that is done?

A That is entrapment by the use of marked money.

Q And from whom will this marked money came from?

A From me.

Q And who will be the buyer in that buy bust operation?

A Cpl. de Guzman.

Q And so you conducted a buy bust operation against the woman with Cpl. de Guzmanas the buyer, what happened next?

A I got a P5.00 bill in my folder and signed my signature thereon and gave it to Cpl. deGuzman to buy marijuana.



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Q How much was the money?

A P5.00.

xxx xxx xxx

FISCAL RAMOS:

Q What happened next after you gave this P5.00 bill to Cpl. de Guzman?

A He went to the store.

Q And how about you, where were you?

A I was just outside at the back of the store.

Q And did you see what happened after Cpl. de Guzman went to the store?

A Cpl. de Guzman talked to the woman.

Q Did you hear their conversation?

A No, because she has a low voice.

Q What else did you see?

A I saw that the woman gave something to Cpl. de Guzman.

Q And what did Cpl. de Guzman do after receiving that something given by the woman?

A He looked at it and examined it and smelled it.

Q And what happened next after Cpl. de Guzman examined and smelled that somethinggiven by the woman?

A Cpl. de Guzman showed an ID and when I saw him do that I went near him.

Q What happened after you went near him?

A We arrested her.

Q And will you please tell us why you arrested that woman?

A We arrested her because our Narcom agent bought marijuana fromher (sic ) and aftethat we arrested her.

xxx xxx xxx

A We arrested her because she sold a suspected marijuana cigarette.

Q How many suspected marijuana cigarettes were sold to Cpl. de Guzman?

A Five sticks.



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Q Were you able to recover those five sticks of suspected marijuana cigarettes?

A These were delivered to Cpl. de Guzman and those five; suspected sticks of marijuanawere in the possession of Cpl. de Guzman.

Q What else if any were you able to recover from the woman?

A The marked money, P5.00 bill, and also Cpl. de Guzman told me that the marijuanawas taken by the woman from the table in a plastic container.

Q And this table were (sic ) the plastic container was placed from where the fivesuspected marijuana cigarettes were taken, where was it located?

A Inside the store.

Q And what did you do after you were informed by de Guzman that the five suspectedmarijuana cigarettes : were taken from the plastic container?

A I got the plastic container and I saw six sticks of suspected marijuana cigarettes and

five grams of dried j marijuana leaves.

xxx xxx xxx

Q What did you do after confiscating from the woman the 6 suspected marijuanacigarettes and 5 grams more or less dried marijuana leaves in addition to the five rolledsuspected marijuana cigarettes, what happened next?

A I brought the suspect to the PC headquarters at Camp Naranjo. 29

Combined with the findings of Forensic Chemist Arenga that the cigarette sticks confiscated from appellant weremarijuana, the corpus delicti of the crime had thus been established with certainty and conclusiveness.

Search Warrant Unnecessary

In alleging that the NARCOM agents conducted an unlawful search and seizure in her house, appellant contends thatbecause said agents had known of alleged drug-pushing activities in Oroquieta City, they should have obtained a searchwarrant before intruding into her residence. Appellant's contention is devoid of merit as the necessity of acquiring a searchwarrant has not been proven in this case.

In going to Oroquieta City on the strength of reports of drug-pushing activities, the NARCOM agents did not know of theidentity of the alleged pushers. 30 When they conducted the buy-bust operation, it was precisely for the purpose oentrapping and identifying the culprit. A buy-bust operation has been considered as an effective mode of apprehendingdrug pushers. If carried out with due regard to constitutional and legal safeguards, a buy-bust operation deserves judicialsanction. 31

Because the drug pusher had been caught in flagrante delicto, the arresting officers were duty-bound to apprehend theculprit immediately and to search her for anything which may be used as proof of the commission of the crime. 32 Thesearch, being an incident of a lawful arrest, needed no warrant for its validity. In fact, in People vs.Figueroa, 33 this Coursaid:

The warrantless search and seizure, as an incident to a suspect's lawful arrest, may extend beyond theperson of the one arrested to include the premises or surrounding under his immediate control. Objects inthe "plain view" of an officer who has the right to be in the position to have that view are subject to seizureand may be presented as evidence.



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Hence, appellant may not successfully claim the right against a warrantless search, 34 even as regards the plasticcontainer with dried marijuana leaves which was found on the table in her house/store. Contrary to appellant'scontention, the contraband seized from her, having been obtained as a result of the buy-bust operation to whichthe defense failed to impute any irregularity, was correctly admitted in evidence.

Informer's Testimony Merely Corrobarative

Neither is her right to confront witnesses against her affected by the prosecution's failure to present the informer whopointed to her as a drug pusher. The presentation of an informant in an illegal drugs case is not essential for convictionnor is it indispensable for a successful prosecution because his testimony would be merely corroborative andcumulative. 35 In a case involving the sale of illegal drugs, what should be proven beyond reasonable doubt is the fact ofthe sale itself. Hence, like the non-presentation of the marked money used in buying the contraband, the non-presentationof the informer on the witness stand would not necessarily create a hiatus in the prosecutions' evidence. 36

Appellant's claim that she was threatened by the NARCOM agents is self-serving. That her daughter corroborated thaportion of appellant's account did not make her claim credible. The trial court, which was in a better position than thisCourt in determining the issue of credibility, unequivocally said: 37

The Court finds that the defense has not sufficiently rebutted the presumption of regularity in thegovernment witnesses' performance of duty. Jennife (sic ) Mission, for the defense, sought refuge from

cross-examination by resorting to evasive "I don't knows" and her demeanor on the stand did not inspirethis Court's faith in her testimony. Accused herself claimed that she has stopped selling marijuana afterbeing charged in 1986, for which she is now under probation, but she had no satisfactory explanation asto why she was brought to PC headquarters despite the fact that the Narcom agents did not find anycontraband in her house. The Court finds it hard to believe that the Narcom agents brought her toheadquarters only for the purpose of forcing her to divulge the names of drug pushers in the city, failing inwhich they would hie her off to court on trumped-up charges.

It should be added that, according to appellant, she recognized the NARCOM agents by the 5" x 7" identification cardsthey pulled from their shirts, which they showed her. 38 It is simply contrary to human experience for an officer of the law toexhibit his identification card if his intention in arresting an offender is to commit mischief.

Violation of Appellant's Right to Counsel

We find appellant's claim that she was not informed of her right to counsel during custodial investigation to be correct.Moreover, the NARCOM agent's admission that they made her sign and thumbmark the bond paper which they used towrap the marijuana found in her possession was violative of her constitutional right to counsel. While the bond paper doesnot appear to have been considered as a pivotal piece of evidence against appellant, such act of the NARCOM agents isworth noting if only to provide guidance to law enforcement operatives. In People vs. Simon, 39 where the accused wasmade to sign the booking sheet and arrest report stating that he was arrested for selling two tea bags of suspectedmarijuana and the receipt for the seized property, the Court said:

. . . Appellant's conformance to these documents are declarations against interest and tacit admissions ofthe crime charged. They were obtained in violation of his right as a person under custodial investigationfor the commission of an offense, there being nothing in the records to show that he was assisted by

counsel. Although appellant manifested during the custodial investigation that he waived his right tocounsel, the waiver was not made in writing and in the presence of counsel, hence whatever incriminatoryadmission or confession may be extracted from him, either verbally or in writing, is not allowable inevidence. Besides, the arrest report is self-serving and hearsay and can easily be concocted to implicatea suspect.

Prosecution's Other Evidence

Sufficient for Conviction

As in the Simon case, where the non-admission of certain pieces of evidence did not weaken the prosecution's casethere is proof beyond reasonable doubt of the consummation of the sale of marijuana by appellant to a NARCOM agent.



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WHEREFORE, the appealed Decision convicting appellant Saturnina Salazar y Palanas of the crime of violation ofSection 4, Article II of Republic Act. No 6425, as amended, is hereby AFFIRMED subject to the MODIFICATION thatappellant shall suffer the indeterminate sentence of four (4) months of arresto mayor as minimum penalty to four (4) yearsand two (2) months of prision correccional as maximum penalty.

Considering that appellant has been detained for the maximum penalty herein imposed, her IMMEDIATE RELEASE fromcustody, unless she is being held for other valid reasons, is hereby ordered.

SO ORDERED.



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G.R. No. L-69401 June 23, 1987

RIZAL ALIH, NASIM ALIH, AISAN ALIH, MIJAL ALIH, OMAR ALIH, EDRIS MUKSAN, MULSIDI WARADIL, BILLYASMAD RAMSID ASALI, BANDING USMAN, ANGGANG HADANI, WARMIKHAN HAPA, GABRAL JIKIRI, ALLANTAN, MUJAHIRIN MARAJUKI, KENNEDY GONZALES, URDUJA ALIH, MERLA ALIH, and NURAISA ALIH VDA DEFEROLINO, petitioners,vs.

MAJOR GENERAL DELFIN C. CASTRO, IN HIS CAPACITY AS COMMANDER SOUTHCOM AND REGIONALUNIFIED COMMAND, REGION IX, ZAMBOANGA CITY, COLONEL ERNESTO CALUPIG, IN HIS CAPACITY ASCOMMANDING OFFICER OF THE SPECIAL FORCES GROUP (AIRBORNE) AND INTERNAL DEFENSE COMMAND,OTHERWISE KNOWN AS IdC MAJOR ARNOLD BLANCO IN HIS CAPACITY AS COMMANDING OFFICER OF THEPHILIPPINE MARINES AND 1ST LIEUTENANT DARWIN GUERRA IN HIS CAPACITY AS ACTS SUPERVISOR,INTERNAL DEFENSE COMMAND, ARMED FORCES OF THE PHILIPPINES, respondents.

CRUZ, J .:

On November 25, 1984, a contingent of more than two hundred Philippine marines and elements of the home defenseforces raided the compound occupied by the petitioners at Gov. Alvarez street, Zamboanga City, in search of loose

firearms, ammunition and other explosives. 1

The military operation was commonly known and dreaded as a "zona," which was not unlike the feared practice ofthe kempeitai during the Japanese Occupation of rounding up the people in a locality, arresting the persons fingered by ahooded informer, and executing them outright (although the last part is not included in the modern refinement).

The initial reaction of the people inside the compound was to resist the invasion with a burst of gunfire. No one was hurtas presumably the purpose was merely to warn the intruders and deter them from entering. Unfortunately, as might beexpected in incidents like this, the situation aggravated soon enough. The soldiers returned fire and a bloody shoot-outensued, resulting in a number of casualties. 2

The besieged compound surrendered the following morning, and sixteen male occupants were arrested, later to be finger-

printed, paraffin-tested and photographed over their objection. The military also inventoried and confiscated nine M16rifles, one M14 rifle, nine rifle grenades, and several rounds of ammunition found in the premises. 3

On December 21, 1984, the petitioners came to this Court in a petition for prohibition and mandamus with preliminaryinjunction and restraining order. Their purpose was to recover the articles seized from them, to prevent these from beingused as evidence against them, and to challenge their finger-printing, photographing and paraffin-testing as violative oftheir right against self-incrimination. 4

The Court, treating the petition as an injunction suit with a prayer for the return of the articles alleged to have been illegallyseized, referred it for hearing to Judge Omar U. Amin of the regional trial court, Zamboanga City. 5 After receiving thetestimonial and documentary evidence of the parties, he submitted the report and recommendations on which this opinionis based. 6

The petitioners demand the return of the arms and ammunition on the ground that they were taken without a searchwarrant as required by the Bill of Rights. This is confirmed by the said report and in fact admitted by the respondents, "butwith avoidance. 7

Article IV, Section 3, of the 1973 Constitution, which was in force at the time of the incident in question, provided asfollows:

Sec. 3. The right of the people to be secure in their persons, houses, papers, and effects againstunreasonable searches and seizures of whatever nature and for any purpose shall not be violated, andno 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



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affirmation of the complainant and the witnesses he may produce, and particularly describing the place tobe searched, and the persons or things to be seized.

It was also declared in Article IV, Section 4(2) that-

Sec. 4(2) Any evidence obtained in violation of this or the preceding section shall be inadmissible for anypurpose in any proceeding.

The respondents, while admitting the absence of the required such warrant, sought to justify their act on the ground thatthey were acting under superior orders. 8 There was also the suggestion that the measure was necessary because of theaggravation of the peace and order problem generated by the assassination of Mayor Cesar Climaco. 9

Superior orders" cannot, of course, countermand the Constitution. The fact that the petitioners weresuspected of the Climaco killing did not excuse the constitutional short-cuts the respondents took. Aseloquently affirmed by the U.S. Supreme Court in Ex parte Milligan: 10

The Constitution is a law for rulers and people, equally in war and in peace, and covers with the shield ofits protection all classes of men, at all times and under all circumstances. No doctrine, involving morepernicious consequences, was ever invented by the wit of man than that any of its provisions can besuspended during any of the great exigencies of government.

The precarious state of lawlessness in Zamboanga City at the time in question certainly did not excuse the nonobservance of the constitutional guaranty against unreasonable searches and seizures. There was no state of hostilities inthe area to justify, assuming it could, the repressions committed therein against the petitioners.

It is so easy to say that the petitioners were outlaws and deserved the arbitrary treatment they received to take them intocustody; but that is a criminal argument. It is also fallacious. Its obvious flaw lies in the conclusion that the petitioners wereunquestionably guilty on the strength alone of unsubstantiated reports that they were stockpiling weapons.

The record does not disclose that the petitioners were wanted criminals or fugitives from justice. At the time of the "zona,"they were merely suspected of the mayor's slaying and had not in fact even been investigated for it. As mere suspectsthey were presumed innocent and not guilty as summarily pronounced by the military.

Indeed, even if were assumed for the sake of argument that they were guilty, they would not have been any less entitledto the protection of the Constitution, which covers both the innocent and the guilty. This is not to say, of course, that theConstitution coddles criminals. What it does simply signify is that, lacking the shield of innocence, the guilty need thearmor of the Constitution, to protect them, not from a deserved sentence, but from arbitrary punishment. Every person isentitled to due process. It is no exaggeration that the basest criminal, ranged against the rest of the people who wouldcondemn him outright, is still, under the Bill of Rights, a majority of one.

If the respondents did not actually disdain the Constitution when they made their illegal raid, they certainly gave everyappearance of doing so. This is truly regrettable for it was incumbent on them, especially during those tense and tinderytimes, to encourage rather than undermine respect for the law, which it was their duty to uphold.

In acting as they did, they also defied the precept that "civilian authority is at all times supreme over the military" so clearly

proclaimed in the 1973 Constitution. 11 In the instant case, the respondents simply by-passed the civil courts, which hadthe authority to determine whether or not there was probable cause to search the petitioner's premises. Instead, theyproceeded to make the raid without a search warrant on their own unauthorized determination of the petitioner's guilt.

The respondents cannot even plead the urgency of the raid because it was in fact not urgent. They knew where thepetitioners were. They had every opportunity to get a search warrant before making the raid. If they were worried that theweapons inside the compound would be spirited away, they could have surrounded the premises in the meantime, as apreventive measure. There was absolutely no reason at all why they should disregard the orderly processes required bythe Constitution and instead insist on arbitrarily forcing their way into the petitioner's premises with all the menace of amilitary invasion.



214

Conceding that the search was truly warrantless, might not the search and seizure be nonetheless considered validbecause it was incidental to a legal arrest? Surely not. If all the law enforcement authorities have to do is force their wayinto any house and then pick up anything they see there on the ground that the occupants are resisting arrest, then wemight as well delete the Bill of Rights as a fussy redundancy.

When the respondents could have easily obtained a search warrant from any of the TEN civil courts then open andfunctioning in Zamboanga City, 12 they instead simply barged into the beleaguered premises on the verbal order of their

superior officers. One cannot just force his way into any man's house on the illegal orders of a superior, however lofty hisrank. Indeed, even the humblest hovel is protected from official intrusion because of the ancient rule, revered in all freeregimes, that a man's house is his castle.

It may be frail; its roof may shake; the wind may enter; the rain may enter. But the King of England maynot enter. All the forces of the Crown dare not cross the threshold of the ruined tenement. 13

If the arrest was made under Rule 113, Section 5, of the Rules of Court in connection with a crime about to be committed,being committed, or just committed, what was that crime? There is no allegation in the record of such a justification.Parenthetically, it may be observed that under the Revised Rule 113, Section 5(b), the officer making the arrest musthave personal knowledge of the ground therefor as stressed in the recent case of People v. Burgos. 14

If follows that as the search of the petitioners' premises was violative of the Constitution, all the firearms and ammunition

taken from the raided compound are inadmissible in evidence in any of the proceedings against the petitioners. Thesearticles are "fruits of the poisonous tree. 15 As Judge Learned Hand observed, "Only in case the prosecution which itselcontrols the seizing officials, knows that it cannot profit by their wrong, will the wrong be repressed. 16 Pendingdetermination of the legality of such articles, however, they shall remain in custodia legis, subject to such appropriatedisposition as the corresponding courts may decide. 17

The objection to the photographing, fingerprinting and paraffin-testing of the petitioners deserves slight comment. Theprohibition against self-incrimination applies to testimonial compulsion only. As Justice Holmes put it in Holt v. UnitedStates, 18 "The prohibition of compelling a man in a criminal court to be a witness against himself is a prohibition of theuse of physical or moral compulsion to extort communications from him, not an exclusion of his body as evidence when itmay be material."

The fearful days of hamleting salvaging, "zona" and other dreaded operations should remain in the past, banished withthe secret marshals and their covert license to kill without trial. We must be done with lawlessness in the name of lawenforcement. Those who are supposed to uphold the law must not be the first to violate it. As Chief Justice ClaudioTeehankee stressed in his concurring opinion in Lacanilao v. De Leon, 19 "It is time that the martial law regime's legacy ofthe law of force be discarded and that there be a return to the force and rule of law."

All of us must exert efforts to make our country truly free and democratic, where every individual is entitled to the fulprotection of the Constitution and the Bill of Rights can stand as a stolid sentinel for all, the innocent as well as the guilty,including the basest of criminals.

WHEREFORE, the search of the petitioners' premises on November 25, 1984, is hereby declared ILLEGAL and all thearticles seized as a result thereof are inadmissible in evidence against the petitioners in any proceedings. However, thesaid articles shall remain in custodia legis pending the outcome of the criminal cases that have been or may later be filed

against the petitioners.

SO ORDERED.



215

G.R. No. 93833 September 28, 1995

SOCORRO D. RAMIREZ, petitioner,vs.HONORABLE COURT OF APPEALS, and ESTER S. GARCIA, respondents.

KAPUNAN, J .:

A civil case damages was filed by petitioner Socorro D. Ramirez in the Regional Trial Court of Quezon City alleging thatthe private respondent, Ester S. Garcia, in a confrontation in the latter's office, allegedly vexed, insulted and humiliatedher in a "hostile and furious mood" and in a manner offensive to petitioner's dignity and personality," contrary to morals,good customs and public policy." 1

In support of her claim, petitioner produced a verbatim transcript of the event and sought moral damages, attorney's feesand other expenses of litigation in the amount of P610,000.00, in addition to costs, interests and other reliefs awardable atthe trial court's discretion. The transcript on which the civil case was based was culled from a tape recording of theconfrontation made by petitioner. 2 The transcript reads as follows:

Plaintiff Soccoro D. Ramirez (Chuchi) — Good Afternoon M'am.

Defendant Ester S. Garcia (ESG) — Ano ba ang nangyari sa 'yo, nakalimot ka na kungpaano ka napunta rito, porke member ka na, magsumbong ka kung ano ang gagawin kosa 'yo.

CHUCHI — Kasi, naka duty ako noon.

ESG — Tapos iniwan no. (Sic )

CHUCHI — Hindi m'am, pero ilan beses na nila akong binalikan, sabing ganoon —

ESG — Ito and (sic ) masasabi ko sa 'yo, ayaw kung (sic ) mag explain ka, kasi hanggang10:00 p.m., kinabukasan hindi ka na pumasok. Ngayon ako ang babalik sa 'yo, nag-aaplyka sa States, nag-aaply ka sa review mo, kung kakailanganin ang certification mo,kalimutan mo na kasi hindi ka sa akin makakahingi.

CHUCHI — Hindi M'am. Kasi ang ano ko talaga noon i-cocontinue ko up to 10:00 p.m.

ESG — Bastos ka, nakalimutan mo na kung paano ka pumasok dito sa hotelMagsumbong ka sa Union kung gusto mo. Nakalimutan mo na kung paano ka nakapasokdito "Do you think that on your own makakapasok ka kung hindi ako. Panunumbyoyan nakita (Sinusumbatan na kita).

CHUCHI — Itutuloy ko na M'am sana ang duty ko.

ESG — Kaso ilang beses na akong binabalikan doon ng mga no (sic ) ko.

ESG — Nakalimutan mo na ba kung paano ka pumasok sa hotel, kung on your own meritalam ko naman kung gaano ka "ka bobo" mo. Marami ang nag-aaply alam kong hindi kapapasa.

CHUCHI — Kumuha kami ng exam noon.

ESG — Oo, pero hindi ka papasa.



216

CHUCHI — Eh, bakit ako ang nakuha ni Dr. Tamayo

ESG — Kukunin ka kasi ako.

CHUCHI — Eh, di sana —

ESG — Huwag mong ipagmalaki na may utak ka kasi wala kang utak . Akala mo bamakukuha ka dito kung hindi ako.

CHUCHI — Mag-eexplain ako.

ESG — Huwag na, hindi ako mag-papa-explain sa 'yo, makaalala ka kung paano kapuma-rito. "Putang-ina" sasabi-sabihin mo kamag-anak ng nanay at tatay mo ang mgamagulang ko.

ESG — Wala na akong pakialam, dahil nandito ka sa loob, nasa labas ka puwede ka nghindi pumasok, okey yan nasaloob ka umalis ka doon.

CHUCHI — Kasi M'am, binbalikan ako ng mga taga Union.

ESG — Nandiyan na rin ako, pero huwag mong kalimutan na hindi ka makakapasokkung hindi ako. Kung hindi mo kinikilala yan okey lang sa akin, dahil tapos ka na.

CHUCHI — Ina-ano ko m'am na utang na loob.

ESG — Huwag na lang, hindi mo utang na loob, kasi kung baga sa no, nilapastangan moako.

CHUCHI — Paano kita nilapastanganan?

ESG — Mabuti pa lumabas ka na. Hindi na ako makikipagusap sa 'yo. Lumabas ka na

Magsumbong ka. 3

As a result of petitioner's recording of the event and alleging that the said act of secretly taping the confrontation wasillegal, private respondent filed a criminal case before the Regional Trial Court of Pasay City for violation of Republic Ac4200, entitled "An Act to prohibit and penalize wire tapping and other related violations of private communication, andother purposes." An information charging petitioner of violation of the said Act, dated October 6, 1988 is quoted herewith:

INFORMATION

The Undersigned Assistant City Fiscal Accusses Socorro D. Ramirez of Violation of Republic Act No4200, committed as follows:

That on or about the 22nd day of February, 1988, in Pasay City Metro ManilaPhilippines, and within the jurisdiction of this honorable court, the above-named accusedSocorro D. Ramirez not being authorized by Ester S. Garcia to record the latter'sconversation with said accused, did then and there willfully, unlawfully and feloniouslywith the use of a tape recorder secretly record the said conversation and thereaftercommunicate in writing the contents of the said recording to other person.

Contrary to law.

Pasay City, Metro Manila, September 16, 1988.

MARIANO M. CUNETA Asst. City Fiscal



217

Upon arraignment, in lieu of a plea, petitioner filed a Motion to Quash the Information on the ground that the facts chargeddo not constitute an offense, particularly a violation of R.A. 4200. In an order May 3, 1989, the trial court granted theMotion to Quash, agreeing with petitioner that 1) the facts charged do not constitute an offense under R.A. 4200; and that2) the violation punished by R.A. 4200 refers to a the taping of a communication by a personother than a participant to thecommunication. 4

From the trial court's Order, the private respondent filed a Petition for Review on Certiorari with this Court, which forthwith

referred the case to the Court of Appeals in a Resolution (by the First Division) of June 19, 1989.

On February 9, 1990, respondent Court of Appeals promulgated its assailed Decision declaring the trial court's order ofMay 3, 1989 null and void, and holding that:

[T]he allegations sufficiently constitute an offense punishable under Section 1 of R.A. 4200. In thusquashing the information based on the ground that the facts alleged do not constitute an offense, therespondent judge acted in grave abuse of discretion correctible by certiorari . 5

Consequently, on February 21, 1990, petitioner filed a Motion for Reconsideration which respondent Court of Appealsdenied in its Resolution 6 dated June 19, 1990. Hence, the instant petition.

Petitioner vigorously argues, as her "main and principal issue" 7 that the applicable provision of Republic Act 4200 doesnot apply to the taping of a private conversation by one of the parties to the conversation. She contends that the provisionmerely refers to the unauthorized taping of a private conversation by a party other than those involved in thecommunication. 8 In relation to this, petitioner avers that the substance or content of the conversation must be alleged inthe Information, otherwise the facts charged would not constitute a violation of R.A. 4200. 9 Finally, petitioner agues thaR.A. 4200 penalizes the taping of a "private communication," not a "private conversation" and that consequently, her actof secretly taping her conversation with private respondent was not illegal under the said act. 10

We disagree.

First, legislative intent is determined principally from the language of a statute. Where the language of a statute is clearand unambiguous, the law is applied according to its express terms, and interpretation would be resorted to only where aliteral interpretation would be either impossible 11 or absurb or would lead to an injustice. 12

Section 1 of R.A. 4200 entitled, " An Act to Prohibit and Penalized Wire Tapping and Other Related Violations of PrivateCommunication and Other Purposes," provides:

Sec. 1. It shall be unlawfull for any person, not being authorized by all the parties to any privatecommunication or spoken word, to tap any wire or cable, or by using any other device or arrangement, tosecretly overhear, intercept, or record such communication or spoken word by using a device commonlyknown as a dictaphone or dictagraph or detectaphone or walkie-talkie or tape recorder, or howeveotherwise described.

The aforestated provision clearly and unequivocally makes it illegal for any person, not authorized by all the parties to anyprivate communication to secretly record such communication by means of a tape recorder. The law makes no distinctionas to whether the party sought to be penalized by the statute ought to be a party other than or different from those

involved in the private communication. The statute's intent to penalize all persons unauthorized to make such recording isunderscored by the use of the qualifier "any". Consequently, as respondent Court of Appeals correctly concluded, "even a(person) privy to a communication who records his private conversation with another without the knowledge of the latter(will) qualify as a violator" 13 under this provision of R.A. 4200.

A perusal of the Senate Congressional Records, moreover, supports the respondent court's conclusion that in enactingR.A. 4200 our lawmakers indeed contemplated to make illegal, unauthorized tape recording of private conversations orcommunications taken either by the parties themselves or by third persons. Thus:

xxx xxx xxx

Senator Tañada: That qualified only "overhear".



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Senator Padilla: So that when it is intercepted or recorded, the element of secrecy would not appear to bematerial. Now, suppose, Your Honor, the recording is not made by all the parties but by some parties andinvolved not criminal cases that would be mentioned under section 3 but would cover, for example civilcases or special proceedings whereby a recording is made not necessarily by all the parties but perhapsby some in an effort to show the intent of the parties because the actuation of the parties prior,simultaneous even subsequent to the contract or the act may be indicative of their intention. Supposethere is such a recording, would you say, Your Honor, that the intention is to cover it within the purview o

this bill or outside?

Senator Tañada: That is covered by the purview of this bill, Your Honor.

Senator Padilla: Even if the record should be used not in the prosecution of offense but as evidence to beused in Civil Cases or special proceedings?

Senator Tañada: That is right. This is a complete ban on tape recorded conversations taken without theauthorization of all the parties.

Senator Padilla: Now, would that be reasonable, your Honor?

Senator Tañada: I believe it is reasonable because it is not sporting to record the observation of onewithout his knowing it and then using it against him . It is not fair, it is not sportsmanlike. If the purposeYour honor, is to record the intention of the parties. I believe that all the parties should know that theobservations are being recorded.

Senator Padilla: This might reduce the utility of recorders.

Senator Tañada: Well no. For example, I was to say that in meetings of the board of directors where atape recording is taken, there is no objection to this if all the parties know. It is but fair that the peoplewhose remarks and observations are being made should know that the observations are being recorded.

Senator Padilla: Now, I can understand.

Senator Tañada: That is why when we take statements of persons, we say: "Please be informed thatwhatever you say here may be used against you." That is fairness and that is what we demand. Now, inspite of that warning, he makes damaging statements against his own interest, well, he cannot complainany more. But if you are going to take a recording of the observations and remarks of a person withouthim knowing that it is being taped or recorded, without him knowing that what is being recorded may beused against him, I think it is unfair .

xxx xxx xxx

(Congression Record, Vol. III, No. 31, p. 584, March 12, 1964)

Senator Diokno: Do you understand, Mr. Senator, that under Section 1 of the bill as now worded, if a party secretly records a public speech, he would be penalized under Section 1? Because the speech ispublic, but the recording is done secretly.

Senator Tañada: Well, that particular aspect is not contemplated by the bill. It is the communicationbetween one person and another person — not between a speaker and a public .

xxx xxx xxx

(Congressional Record, Vol. III, No. 33, p. 626, March 12, 1964)

xxx xxx xxx



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G.R. No. L-69809 October 16, 1986

EDGARDO A. GAANAN, petitioner,vs.INTERMEDIATE APPELLATE COURT and PEOPLE OF THE PHILIPPINES, respondents.

GUTIERREZ, JR., J.:

This petition for certiorari asks for an interpretation of Republic Act (RA) No. 4200, otherwise known as the AntiWiretapping Act, on the issue of whether or not an extension telephone is among the prohibited devices in Section 1 ofthe Act, such that its use to overhear a private conversation would constitute unlawful interception of communicationsbetween the two parties using a telephone line.

The facts presented by the People and narrated in the respondent court's decision are not disputed by the petitioner.

In the morning of October 22, 1975, complainant Atty. Tito Pintor and his client Manuel Montebon were inthe living room of complainant's residence discussing the terms for the withdrawal of the complaint for

direct assault which they filed with the Office of the City Fiscal of Cebu against Leonardo Laconico. Afterthey had decided on the proposed conditions, complainant made a telephone call to Laconico (tsn, August 26, 1981, pp. 3-5).

That same morning, Laconico telephoned appellant, who is a lawyer, to come to his office and advise himon the settlement of the direct assault case because his regular lawyer, Atty. Leon Gonzaga, went on abusiness trip. According to the request, appellant went to the office of Laconico where he was briefedabout the problem. (Exhibit 'D', tsn, April 22, 1982, pp. 4-5).

When complainant called up, Laconico requested appellant to secretly listen to the telephoneconversation through a telephone extension so as to hear personally the proposed conditions for thesettlement. Appellant heard complainant enumerate the following conditions for withdrawal of thecomplaint for direct assault.

(a) the P5,000.00 was no longer acceptable, and that the figure had been increased to P8,000.00. Abreakdown of the P8,000.00 had been made together with other demands, to wit: (a) P5,000.00 no longerfor the teacher Manuel Montebon, but for Atty. Pintor himself in persuading his client to withdraw the casefor Direct Assault against Atty. Laconico before the Cebu City Fiscal's Office;

(b) Public apology to be made by Atty. Laconico before the students of Don Bosco Technical HighSchool;

(c) Pl,000.00 to be given to the Don Bosco Faculty club;

(d) transfer of son of Atty. Laconico to another school or another section of Don Bosco Technical HighSchool;

(e) Affidavit of desistance by Atty. Laconico on the Maltreatment case earlier filed against ManueMontebon at the Cebu City Fiscal's Office, whereas Montebon's affidavit of desistance on the Direct Assault Case against Atty. Laconico to be filed later;

(f) Allow Manuel Montebon to continue teaching at the Don Bosco Technical School;

(g) Not to divulge the truth about the settlement of the Direct Assault Case to the mass media;

(h) P2,000.00 attorney s fees for Atty. Pintor. (tsn, August 26, 1981, pp. 47-48).



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Twenty minutes later, complainant called up again to ask Laconico if he was agreeable to the conditions.Laconico answered 'Yes'. Complainant then told Laconico to wait for instructions on where to deliver themoney. (tsn, March 10, 1983, pp. 2-12).

Complainant called up again and instructed Laconico to give the money to his wife at the office of thethen Department of Public Highways. Laconico who earlier alerted his friend Colonel Zulueta of theCriminal Investigation Service of the Philippine Constabulary, insisted that complainant himself should

receive the money. (tsn, March 10, 1982, pp. 26-33). When he received the money at the IglooRestaurant, complainant was arrested by agents of the Philippine Constabulary.

Appellant executed on the following day an affidavit stating that he heard complainant demand P8,000.00for the withdrawal of the case for direct assault. Laconico attached the affidavit of appellant to thecomplainant for robbery/extortion which he filed against complainant. Since appellant listened to thetelephone conversation without complainant's consent, complainant charged appellant and Laconico withviolation of the Anti-Wiretapping Act.

After trial on the merits, the lower court, in a decision dated November 22, 1982, found both Gaanan and Laconico guiltyof violating Section 1 of Republic Act No. 4200. The two were each sentenced to one (1) year imprisonment with costsNot satisfied with the decision, the petitioner appealed to the appellate court.

On August 16, 1984, the Intermediate Appellate Court affirmed the decision of the trial court, holding that thecommunication between the complainant and accused Laconico was private in nature and, therefore, covered by Rep. AcNo. 4200; that the petitioner overheard such communication without the knowledge and consent of the complainant; andthat the extension telephone which was used by the petitioner to overhear the telephone conversation betweencomplainant and Laconico is covered in the term "device' as provided in Rep. Act No. 4200.

In this petition for certiorari, the petitioner assails the decision of the appellate court and raises the following issues; (a)whether or not the telephone conversation between the complainant and accused Laconico was private in nature; (b)whether or not an extension telephone is covered by the term "device or arrangement" under Rep. Act No. 4200; (c)whether or not the petitioner had authority to listen or overhear said telephone conversation and (d) whether or not Rep. Act No. 4200 is ambiguous and, therefore, should be construed in favor of the petitioner.

Section 1 of Rep. Act No. 4200 provides:

Section 1. It shall be unlawful for any person, not being authorized by all the parties to any privatecommunication or spoken word, to tap any wire or cable or by using any other device or arrangement, tosecretly overhear, intercept, or record such communication or spoken word by using a device commonlyknown as a dictaphone or dictagraph or detectaphone or walkie-talkie or tape-recorder, or howeverotherwise described:

It shall be unlawful for any person, be he a participant or not in the act or acts penalized in the nexpreceeding sentence, to knowingly possess any tape record, wire record, disc record, or any other suchrecord, or copies thereof, of any communication or spoken word secured either before or after theeffective date of this Act in the manner prohibited by this law; or to replay the same for any other personor persons; or to communicate the contents thereof, either verbally or in writing, or to furnish

transcriptions thereof, whether complete or partial, to any other person: Provided, that the use of suchrecord or any copies thereof as evidence in any civil, criminal investigation or trial of offenses mentionedin Section 3 hereof, shall not be covered by this prohibition.

We rule for the petitioner.

We are confronted in this case with the interpretation of a penal statute and not a rule of evidence. The issue is not theadmissibility of evidence secured over an extension line of a telephone by a third party. The issue is whether or not theperson called over the telephone and his lawyer listening to the conversation on an extension line should both face prisonsentences simply because the extension was used to enable them to both listen to an alleged attempt at extortion.



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There is no question that the telephone conversation between complainant Atty. Pintor and accused Atty. Laconico was"private" in the sense that the words uttered were made between one person and another as distinguished from wordsbetween a speaker and a public. It is also undisputed that only one of the parties gave the petitioner the authority to listento and overhear the caller's message with the use of an extension telephone line. Obviously, complainant Pintor, amember of the Philippine bar, would not have discussed the alleged demand for an P8,000.00 consideration in order tohave his client withdraw a direct assault charge against Atty. Laconico filed with the Cebu City Fiscal's Office if he knewthat another lawyer was also listening. We have to consider, however, that affirmance of the criminal conviction would, in

effect, mean that a caller by merely using a telephone line can force the listener to secrecy no matter how obscene,criminal, or annoying the call may be. It would be the word of the caller against the listener's.

Because of technical problems caused by the sensitive nature of electronic equipment and the extra heavy loads whichtelephone cables are made to carry in certain areas, telephone users often encounter what are called "crossed lines". Anunwary citizzen who happens to pick up his telephone and who overhears the details of a crime might hesitate to informpolice authorities if he knows that he could be accused under Rep. Act 4200 of using his own telephone to secretlyoverhear the private communications of the would be criminals. Surely the law was never intended for such mischievousresults.

The main issue in the resolution of this petition, however, revolves around the meaning of the phrase "any other device orarrangement." Is an extension of a telephone unit such a device or arrangement as would subject the user toimprisonment ranging from six months to six years with the accessory penalty of perpetual absolute disqualification for a

public officer or deportation for an alien? Private secretaries with extension lines to their bosses' telephones aresometimes asked to use answering or recording devices to record business conversations between a boss and anotherbusinessman. Would transcribing a recorded message for the use of the boss be a proscribed offense? or for that matterwould a "party line" be a device or arrangement under the law?

The petitioner contends that telephones or extension telephones are not included in the enumeration of "commonlyknown" listening or recording devices, nor do they belong to the same class of enumerated electronic devicescontemplated by law. He maintains that in 1964, when Senate Bill No. 9 (later Rep. Act No. 4200) was being consideredin the Senate, telephones and extension telephones were already widely used instruments, probably the most popularlyknown communication device.

Whether or not listening over a telephone party line would be punishable was discussed on the floor of the Senate. Yet,when the bill was finalized into a statute, no mention was made of telephones in the enumeration of devices "commonly

known as a dictaphone or dictagraph, detectaphone or walkie talkie or tape recorder or however otherwise described."The omission was not a mere oversight. Telephone party lines were intentionally deleted from the provisions of the Act.

The respondent People argue that an extension telephone is embraced and covered by the term "device" within thecontext of the aforementioned law because it is not a part or portion of a complete set of a telephone apparatus. It is aseparate device and distinct set of a movable apparatus consisting of a wire and a set of telephone receiver not formingpart of a main telephone set which can be detached or removed and can be transferred away from one place to anotherand to be plugged or attached to a main telephone line to get the desired communication corning from the other party orend.

The law refers to a "tap" of a wire or cable or the use of a "device or arrangement" for the purpose of secretly overhearing,intercepting, or recording the communication. There must be either a physical interruption through a wiretap orthe deliberate installation of a device or arrangement in order to overhear, intercept, or record the spoken words.

An extension telephone cannot be placed in the same category as a dictaphone, dictagraph or the other devicesenumerated in Section 1 of RA No. 4200 as the use thereof cannot be considered as "tapping" the wire or cable of atelephone line. The telephone extension in this case was not installed for that purpose. It just happened to be there forordinary office use. It is a rule in statutory construction that in order to determine the true intent of the legislature, theparticular clauses and phrases of the statute should not be taken as detached and isolated expressions, but the wholeand every part thereof must be considered in fixing the meaning of any of its parts. (see Commissioner of Customs vEsso Estandard Eastern, Inc., 66 SCRA 113,120).

In the case of Empire Insurance Com any v. Rufino (90 SCRA 437, 443-444), we ruled:



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Likewise, Article 1372 of the Civil Code stipulates that 'however general the terms of a contract may be,they shall not be understood to comprehend things that are distinct and cases that are different fromthose upon which the parties intended to agree.' Similarly, Article 1374 of the same Code provides that'the various stipulations of a contract shall be interpreted together, attributing to the doubtful ones thatsense which may result from all of them taken jointly.

xxx xxx xxx

Consequently, the phrase 'all liabilities or obligations of the decedent' used in paragraph 5(c) and 7(d)should be then restricted only to those listed in the Inventory and should not be construed as tocomprehend all other obligations of the decedent. The rule that 'particularization followed by a generaexpression will ordinarily be restricted to the former' is based on the fact in human experience that usuallythe minds of parties are addressed specially to the particularization, and that the generalities, thoughbroad enough to comprehend other fields if they stood alone, are used in contemplation of that uponwhich the minds of the parties are centered. (Hoffman v. Eastern Wisconsin R., etc., Co., 134 Wis. 603,607, 115 NW 383, cited in Francisco, Revised Rules of Court (Evidence), 1973 ed, pp. 180-181).

Hence, the phrase "device or arrangement" in Section 1 of RA No. 4200, although not exclusive to that enumeratedtherein, should be construed to comprehend instruments of the same or similar nature, that is, instruments the use owhich would be tantamount to tapping the main line of a telephone. It refers to instruments whose installation or presence

cannot be presumed by the party or parties being overheard because, by their very nature, they are not of common usageand their purpose is precisely for tapping, intercepting or recording a telephone conversation.

An extension telephone is an instrument which is very common especially now when the extended unit does not have tobe connected by wire to the main telephone but can be moved from place ' to place within a radius of a kilometer or more. A person should safely presume that the party he is calling at the other end of the line probably has an extensiontelephone and he runs the risk of a third party listening as in the case of a party line or a telephone unit which shares itsline with another. As was held in the case of Rathbun v. United States (355, U.S. 107, 2 L Ed 2d 137-138):

Common experience tells us that a call to a particular telephone number may cause the bell to ring inmore than one ordinarily used instrument. Each party to a telephone conversation takes the risk that theother party may have an extension telephone and may allow another to overhear the conversation. Whensuch takes place there has been no violation of any privacy of which the parties may complain.

Consequently, one element of 605, interception, has not occurred.

In the same case, the Court further ruled that the conduct of the party would differ in no way if instead of repeating themessage he held out his hand-set so that another could hear out of it and that there is no distinction between that sort ofaction and permitting an outsider to use an extension telephone for the same purpose.

Furthermore, it is a general rule that penal statutes must be construed strictly in favor of the accused. Thus, in case ofdoubt as in the case at bar, on whether or not an extension telephone is included in the phrase "device or arrangement",the penal statute must be construed as not including an extension telephone. In the case of People v. Purisima, 86 SCRA542, 562, we explained the rationale behind the rule:

American jurisprudence sets down the reason for this rule to be the tenderness of the law of the rights of

individuals; the object is to establish a certain rule by conformity to which mankind would be safe, and thediscretion of the court limited. (United States v. Harris, 177 US 305, 44 L Ed 780, 20 S Ct 609; Braffith v.Virgin Islands (CA3) 26 F2d 646; Caudill v. State, 224 Ind 531, 69 NE2d; Jennings v. Commonwealth,109 VA 821,63 SE 1080, all cited in 73 Am Jur 2d 452). The purpose is not to enable a guilty person toescape punishment through a technicality but to provide a precise definition of forbidden acts." (State vZazzaro, 20 A 2d 737, quoted in Martin's Handbook on Statutory Construction, Rev. Ed. pp. 183-184).

In the same case of Purisima, we also ruled that on the construction or interpretation of a legislative measure, the primaryrule is to search for and determine the intent and spirit of the law. A perusal of the Senate Congressional Records wilshow that not only did our lawmakers not contemplate the inclusion of an extension telephone as a prohibited device orarrangement" but of greater importance, they were more concerned with penalizing the act of recording than the act ofmerely listening to a telephone conversation.



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Senator Tañada. Another possible objection to that is entrapment which is certainlyobjectionable. It is made possible by special amendment which Your Honor mayintroduce.

Senator Diokno.Your Honor, I would feel that entrapment would be less possible with the

amendment than without it, because with the amendment the evidence of entrapmentwould only consist of government testimony as against the testimony of the defendantWith this amendment, they would have the right, and the government officials and theperson in fact would have the right to tape record their conversation.

Senator Tañada. In case of entrapment, it would be the government.

Senator Diokno. In the same way, under this provision, neither party could record andtherefore, the court would be limited to saying: "Okay, who is more credible, the policeofficers or the defendant?" In these cases, as experienced lawyers, we know that theCourt go with the peace offices.

(Congressional Record, Vol. 111, No. 33, p. 628, March 12, 1964).

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Senator Diokno. The point I have in mind is that under these conditions, with an agenoutside listening in, he could falsify the testimony and there is no way of checking it. But ifyou allow him to record or make a recording in any form of what is happening, then thechances of falsifying the evidence is not very much.

Senator Tañada. Your Honor, this bill is not intended to prevent the presentation of falsetestimony. If we could devise a way by which we could prevent the presentation of falsetestimony, it would be wonderful. But what this bill intends to prohibit is the use of taperecord and other electronic devices to intercept private conversations which later on wil

be used in court.

(Congressional Record, Vol. III, No. 33, March 12, 1964, p. 629).

It can be readily seen that our lawmakers intended to discourage, through punishment, persons such as governmentauthorities or representatives of organized groups from installing devices in order to gather evidence for use in court or tointimidate, blackmail or gain some unwarranted advantage over the telephone users. Consequently, the mere act oflistening, in order to be punishable must strictly be with the use of the enumerated devices in RA No. 4200 or others ofsimilar nature. We are of the view that an extension telephone is not among such devices or arrangements.

WHEREFORE, the petition is GRANTED. The decision of the then Intermediate Appellate Court dated August 16, 1984 is ANNULLED and SET ASIDE. The petitioner is hereby ACQUITTED of the crime of violation of Rep. Act No. 4200otherwise known as the Anti-Wiretapping Act.

SO ORDERED.



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G.R. No. 107383 February 20, 1996

CECILIA ZULUETA, petitioner,vs.COURT OF APPEALS and ALFREDO MARTIN, respondents.

D E C I S I O N

MENDOZA, J .:

This is a petition to review the decision of the Court of Appeals, affirming the decision of the Regional Trial Court of Manila(Branch X) which ordered petitioner to return documents and papers taken by her from private respondent's clinic withoutthe latter's knowledge and consent.


Petitioner Cecilia Zulueta is the wife of private respondent Alfredo Martin. On March 26, 1982, petitioner entered the clinicof her husband, a doctor of medicine, and in the presence of her mother, a driver and private respondent's secretary,forcibly opened the drawers and cabinet in her husband's clinic and took 157 documents consisting of private

correspondence between Dr. Martin and his alleged paramours, greetings cards, cancelled checks, diaries, Dr. Martin'spassport, and photographs. The documents and papers were seized for use in evidence in a case for legal separation andfor disqualification from the practice of medicine which petitioner had filed against her husband.

Dr. Martin brought this action below for recovery of the documents and papers and for damages against petitioner. Thecase was filed with the Regional Trial Court of Manila, Branch X, which, after trial, rendered judgment for privaterespondent, Dr. Alfredo Martin, declaring him "the capital/exclusive owner of the properties described in paragraph 3 ofplaintiff's Complaint or those further described in the Motion to Return and Suppress" and ordering Cecilia Zulueta andany person acting in her behalf to a immediately return the properties to Dr. Martin and to pay him P5,000.00, as nominaldamages; P5,000.00, as moral damages and attorney's fees; and to pay the costs of the suit. The writ of preliminaryinjunction earlier issued was made final and petitioner Cecilia Zulueta and her attorneys and representatives wereenjoined from "using or submitting/admitting as evidence" the documents and papers in question. On appeal, the Court of Appeals affirmed the decision of the Regional Trial Court. Hence this petition.

There is no question that the documents and papers in question belong to private respondent, Dr. Alfredo Martin, and thatthey were taken by his wife, the herein petitioner, without his knowledge and consent. For that reason, the trial courtdeclared the documents and papers to be properties of private respondent, ordered petitioner to return them to privaterespondent and enjoined her from using them in evidence. In appealing from the decision of the Court of Appealsaffirming the trial court's decision, petitioner's only ground is that in Alfredo Martin v. Alfonso Felix, Jr. ,1 this Court ruledthat the documents and papers (marked as Annexes A-1 to J-7 of respondent's comment in that case) were admissible inevidence and, therefore, their use by petitioner's attorney, Alfonso Felix did not constitute malpractice or grossmisconduct, For this reason it is contended that the Court of Appeals erred in affirming the decision of the trial courinstead of dismissing private respondent's complaint.

Petitioner's contention has no merit. The case against Atty. Felix, Jr. was for disbarment. Among other things, privaterespondent, Dr. Alfredo Martin, as complainant in that case, charged that in using the documents in evidence, Atty. Felix,

Jr. committed malpractice or gross misconduct because of the injunctive order of the trial court. In dismissing thecomplaint against Atty. Felix, Jr., this Court took note of the following defense of Atty. Felix; Jr. which it found to be"impressed with merit:"2

On the alleged malpractice or gross misconduct of respondent [Alfonso Felix, Jr.], he maintains that:

. . . .

4. When respondent refiled Cecilia's case for legal separation before the Pasig Regional Trial Court, there wasadmittedly an order of the Manila Regional Trial Court prohibiting Cecilia from using the documents Annex "A-1 to



















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